Encyclopedia of Applied Ethics 9780123736321, 1865843830, 0123736323

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ENCYCLOPEDIA OF

APPLIED ETHICS SECOND EDITION

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ENCYCLOPEDIA OF

APPLIED ETHICS SECOND EDITION Editor-in-Chief RUTH CHADWICK Cardiff University, Cardiff, UK

AMSTERDAM BOSTON HEIDELBERG LONDON NEW YORK OXFORD PARIS SAN DIEGO SAN FRANCISCO SINGAPORE SYDNEY TOKYO Academic Press is an imprint of Elsevier

Academic Press is an imprint of Elsevier 32 Jamestown Road, London NW1 7BY, UK 225 Wyman Street, Waltham, MA 02451, USA 525 B Street, Suite 1900, San Diego, CA 92101-4495, USA Copyright ª 2012 Elsevier Inc. All rights reserved The following articles are US government works in the public domain and are not subject to copyright: Developing World Bioethics; Genomic Databases, Ethical Issues in No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone (+44) (0) 1865 843830; fax (+44) (0) 1865 853333; email: [email protected]. Alternatively you can submit your request online by visiting the Elsevier web site at http://elsevier.com/locate/permissions, and selecting Obtaining permission to use Elsevier material Notice No responsibility is assumed by the publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in the material herein, Because of rapid advances in the medical sciences, in particular, independent verification of diagnoses and drug dosages should be made British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Catalog Number: 2011937880 ISBN: 978-0-12-373632-1 For information on all Elsevier publications visit our website at books.elsevier.com

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EDITOR-IN-CHIEF

Ruth Chadwick is Distinguished Research Professor and Director of the ESRC (Economic and Social Sciences Research Council) Centre for Economic and Social Aspects of Genomics (Cesagen), at Cardiff University, UK and Link Chair between Cardiff Law School and the School of English, Communication and Philosophy (ENCAP). Professor Chadwick has co-ordinated a number of projects funded by the European Commission, including the EUROSCREEN projects and co-edits the journal Bioethics and the online journal Genomics, Society and Policy. She is Chair of the Human Genome Organisation Committee on Ethics, Law and Society, and has served as a member of several policy-making and advisory bodies, including the Panel of Eminent Ethical Experts of the Food and Agriculture Organisation of the United Nations (FAO), and the UK Advisory Committee on Novel Foods and Processes (ACNFP). She was editor-in-chief of the first edition of the award winning Encyclopedia of Applied Ethics. She is an Academician of the Academy of Social Sciences and a Fellow of the Hastings Center, New York; of the Royal Society of Arts; and of the Royal Society of Medicine. In 2005 she was the winner of the World Technology Network Award for Ethics for her work on the relationship between scientific developments and ethical frameworks.

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SECTION EDITORS

´ Vilhjalmur ´ Arnason is Professor of Philosophy and Chair of the Centre for Ethics in the School of Humanities at the University of Iceland. Elected life member of Clare ´ Hall, Cambridge University, Professor Arnason was a board member of The European Society for Philosophy of Medicine and Health Care (2004–10) and of The Nordic Bioethics Committee (2005–10). The 1993 Alexander von Humboldt Research Fellow in Berlin, he is the author of four books on practical philosophy and applied ethics in Icelandic, and has published numerous articles in the field of bioethics, ethical theory and political philosophy, and edited several books in Icelandic and English. Professor A´rnason has co-ordinated several research projects, including ELSAGEN, funded by the European Commission (2002–2004), and served as chair of a working group on ethics and working practices of the Special Investigation Commission of the Icelandic Parliament (2009–10), explaining the causes of the economic collapse. He is a member of the editorial teams of Medicine, Health Care and Philosophy, Genomics and Society, and Etikk i Praksis – A Nordic Journal.

Thomas Faunce is an Associate Professor jointly in the College of Law and the College of Medicine, Biology and the Environment at the Australian National University. He has practised as a barrister and solicitor with Australia’s largest legal firms, as senior intensive care registrar at its largest Intensive Care Unit and an expert consultant for UNECSO on its global health law and ethics database. He has directed Australian Research Council Discovery Grants on (1) the impact of trade agreements on costeffectiveness regulation, (2) on safety and cost-effectiveness assessment of nanomedicine, (3) on detecting fraud and anti-competitive behavior in the pharmaceutical and medical device industries and (4) regulation of nanoweapons. Faunce has published widely in the area of health technology regulation. He serves as an editor with Medical Humanities (UK) and edits the Medical Law Reporter for the Journal of Law and Medicine (Australia). In 2009 he was awarded a four-year Australian Research Council Future Fellowship for a project on Nanotechnology and Global Public Health. This is now focused on governance of a global artificial photosynthesis. His books include Who Owns Our Health: Medical Professionalism, Law and Leadership Beyond the Age of the Market State (Johns Hopkins University Press) and has Nanoregulation for a Sustainable World: Global Artificial Photosynthesis as the Moral Culmination of Nanotechnology (forthcoming with Edward Elgar).

Alan Gillies is a former Professor of Information Management at the University of Central Lancashire. His Ph.D. was in problem solving methodology using knowledge based systems and formed the basis of his first book The Integration of Expert Systems Into Mainstream Software. Professor Gillies joined the Lancashire School of Health and Postgraduate Medicine, which was later amalgamated and expanded to form the School of Public Health and Clinical Sciences where he was appointed as School Research Coordinator. He has also held part-time positions at the University of Oxford PGMET, RMIT in Australia, and in 2002 was awarded Doctor Honoris Causa by the University of Medicine and Pharmacy in Cluj-Napoca. In 2009, he enjoyed a Visiting Fellowship at Harris Manchester College, Oxford University. He has over 100 publications vii

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Section Editors

including over 30 peer reviewed articles and 18 books. He has ongoing work in Ontario Canada, and was successful in bidding with Mark Cutter for the AHEAD-EU project on widening access for disabled students, with partners in Germany and Sweden, and is currently a co-editor of Clinical Governance: an International Journal.

Søren Holm is Professor of Bioethics at the Centre for Social Ethics and Policy and the Institute for Ethics, Science and Innovation in the School of Law of the University of Manchester. He also holds a part-time Chair in Medical Ethics at the Section for Medical Ethics, University of Oslo. He is trained as a medical doctor and philosopher. He is President of the European Society for Philosophy of Medicine and Health Care, and has served as joint editor-in-chief of the Journal of Medical Ethics.

Glenn McGee, holds the John B. Francis Endowed Chair in Bioethics at the Center for Practical Bioethics, in Kansas City, Missouri, where he is also editor-in-chief of The American Journal of Bioethics. He has held posts in bioethics, medicine, philosophy, and public health at the University of Pennsylvania, University of Massachusetts, and Union University, where he was John Balint M.D. Chair in Medical Ethics. He serves on the editorial boards of 12 scholarly journals and the ethics committees of the Society for Editors of Scientific Journals, the Council of Editors of Learned Journals, and the World Association of Medical Editors. Dr. McGee has authored and edited numerous books, founded and is senior editor of Basic Bioethics book series at The MIT Press. He has written monthly columns for The Scientist, the Hearst News Service, and MSNBC. His scholarly articles have been published in many leading journals. He has also written more than one dozen encyclopedia articles about, for example, euthanasia, abortion and other topics. He has testified and consulted for the US Congress, and his California testimony on stem cell research was published in Great American Speeches. He completed an NIH Postdoctoral Fellowship in the US human genome program, and an Atlantic Fellowship from the United Kingdom. He has served as a principal reviewer for all bioethics programs funded by the UK Economic and Social Research Council, and is a founding member of the US Food and Drug Administration’s Molecular and Clinical Genetics panel.

Deborah Poff is President and Vice-Chancellor at Brandon University in Manitoba. In 2004 she was awarded a Fellowship in Public Policy with the Sheldon Chumir Foundation in Ethical Leadership. Her areas of research are: leadership; business and professional ethics; and health care ethics. She also does research on social justice issues and women’s studies. In 1995, she was awarded a lifetime honorary membership by the Canadian Research Institute for the Advancement of Women in the category of ‘‘outstanding contribution to feminist scholarship’’. Dr. Poff is the founder and editor of the Journal of Business Ethics, Teaching Business Ethics, and the Journal of Academic Ethics. She is the editor of Business Ethics in Canada and is currently working on a book on ethical leadership and the future of university governance. She serves and has served on numerous national and international boards and councils and is currently the President of the National Council on Ethics in Human Research.

Section Editors ix

Martin Reynolds is a Lecturer in Systems and Environment at The Open University, UK. He is lead academic editor of, and contributing author to, The Environmental Responsibility Reader, co-published by Zed Books in 2009. He has since been involved with numerous collaborations including work with the Geography, Earth and Environmental Sciences Subject Centre at the University of Plymouth, Centre for Systems Studies at the University of Hull, the University of Guyana, the University of KwaZulu-Natal, and with internationally based colleagues associated with the American Evaluation Association and the European Evaluation Society. He has produced distance learning course material for postgraduate courses on Global Development, Environmental Decision Making, Environmental Responsibility, and Systems Thinking in Practice. Martin is one of the founding members of the Open Systems Research Group based at the Open University, and provides workshop support for professional development in systems practice and critical systems thinking. He has published widely in the fields of systems studies, professional evaluation, international development, and environmental decision making.

Hub Zwart was appointed as research director of the Centre for Ethics, Nijmegen and acted as editor-in-chief of the Dutch Journal Tijdschrift voor Geneeskunde en Ethiek. In 2000 he became full Professor of Philosophy at the Faculty of Science and was European lead of the EU Canada exchange program Coastal Values. In 2004 he became director of the Center for Society and Genomics, and in 2006 he became director of ISIS. The focus of his research is on epistemological and bioethical issues in the life sciences: biomedicine, research with animals, environmental research and, presently, genomics, notably human genomics and ecogenomics. Other important research themes are scientific authorship and comparative epistemology (literary imagination as a research tool).

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EDITORIAL ADVISORY BOARD Alastair Campbell Yong Loo Lin School of Medicine National University of Singapore Block MD11, #02-04, Clinical Research Centre 10 Medical Drive Singapore 117597 Michael Davis Center for Study of Ethics in the Professions Illinois Institute of Technology 3300 South Federal Street, Chicago, IL 60616-3793 Anne Donchin Department of Philosophy Indiana University Purdue University Indianapolis (IUPUI) Indianapolis, IN 46202-5140 Richard Frankel Indiana University – Purdue University Indianapolis (IUPUI) Medicine Residency Program OPW M200 1001 1481 West 10th Street Indianapolis, IN 46202 Robert Frodeman Department of Philosophy and Religious Studies P.O.Box 310920 University of North Texas Denton, TX 76203-0920 Matti Ha¨yry School of Law The University of Manchester Oxford Road Manchester M13 9PL, UK Maureen Junker-Kenny School of Religions & Theology Room 5030 Arts Building Trinity College Dublin College Green Dublin 2, Ireland Emilio Mordini Via Sistina 37 00187 Rome, Italy

Tom Sorell Department of Philosophy University of Birmingham Edgbaston Birmingham B15 2TT, UK Margit Sutrop Centre for Ethics University of Tartu Tartu 50090, Estonia Tsjalling Swierstra Afdeling Wijsbegeerte Faculteit Gedragswetenschappen Universiteit Twente Postbus 217 7500 AE Enschede, The Netherlands Henk ten Have Center for Healthcare Ethics Dusquesne University 600 Forbes Avenue Pittsburgh, PA 15282 John Weckert Centre for Applied Philosophy and Public Ethics Charles Sturt University PO Box 8260 ANU Canberra, ACT 2601, Australia Kazuto Kato Institute for Research in the Humanities Kyoto University Yoshida Ushinomiya-cho Sakyo-ku Kyoto 606-8501 Japan

Ren-Zong Qiu Program in Bioethics Institute of Philosophy Chinese Academy of Social Sciences 5 Jianguomennei Avenue Beijing 100732, China

Urban Wiesing Universita¨t Tu¨bingen Institut fu¨r Ethik und Geschichte der Medizin Schleichstrasse 8 72076 Tu¨bingen Germany

Wendy Rogers Department of Medical Education (Room 6E114.2) School of Medicine Flinders University GPO Box 2100 Adelaide SA 5001, Australia

Professor Takahiko Nitta Center for Applied Ethics and Philosophy Graduate School of Letters Hokkaido University N10 W7, Kita-ku Sapporo 060-0810 Japan xi

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CONTRIBUTORS TO VOLUME 1 W Aikeny (Formerly) Chatham College, Pittsburgh, PA, USA

W M Bush Australian National University, Canberra, ACT, Australia

G Arnason Leibniz University of Hannover, Hannover, Germany

B Capps National University of Singapore, Singapore

R L Arrington Georgia State University, Atlanta, GA, USA

A M Capron University of Southern California, Los Angeles, CA, USA

L Baillie Cardiff University, Cardiff, UK

A Carter The University of Queensland, Brisbane, QLD, Australia

Y M Barilan Sackler Faculty of Medicine, Tel Aviv University, Tel Aviv, Israel

V Chokevivat Thai Department of Health and Human Welfare, Thailand

B Baumrin City University of New York, New York, NY, USA H A Bedau Tufts University, Medford, MA, USA N Biller-Andorno University of Zurich, Zurich, Switzerland J D Bishop Trent University, Peterborough, ON, Canada

M Coffey Australian Broadcasting Corporation C Colwell-Chanthaphonh Denver Museum of Nature and Science, Denver, CO, USA T Dare The University of Auckland, Auckland, New Zealand M Davis Illinois Institute of Technology, Chicago, IL, USA

J R Boatright Loyola University Chicago, Chicago, IL, USA

I de Beaufort Erasmus Medical Center, Rotterdam, The Netherlands

I Bolt Erasmus Medical Center, Rotterdam, The Netherlands

C A Defanti Alzheimer Centre, Gazzaniga (Bergamo), Italy

M C Brannigan The College of Saint Rose, Albany, NY, USA

C del Rio Emory University, Atlanta, GA, USA

A Briggle University of North Texas, Denton, TX, USA

S Dimock York University, Toronto, ON, Canada

L J Brooks University of Toronto, Toronto, ON, Canada

V di Norcia Barrie, ON, Canada

y

Deceased.

N Dower University of Aberdeen, Aberdeen, UK

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Contributors to Volume 1

H Dyson Defence Science and Technology Laboratory, Wiltshire, UK A Etzioni The George Washington University, Washington, DC, USA J Fender University of Birmingham, Birmingham, UK D E W Fenner University of North Florida, Jacksonville, FL, USA E Frankel Paul Bowling Green State University, Bowling Green, OH, USA S Gibson (Formerly) University of Cumbria, Lancaster, UK R Gillon Imperial College London, London, UK L Goralnik Michigan State University, East Lansing, MI, USA S Gunz University of Waterloo, Waterloo, ON, Canada W Hall The University of Queensland, Brisbane, QLD, Australia M W Hallgarth United States Air Force Academy, Colorado Springs, CO, USA D W Heckendorf Australian National University, Canberra, ACT, Australia J Heesen University of Freiburg, Freiburg, Germany D Hellman University of Maryland School of Law, Baltimore, MD, USA B A Hocking Queensland University of Technology, Brisbane, QLD, Australia J Hollowell The Janet Prindle Institute for Ethics, Greencastle, IN, USA S Holm Manchester University, Manchester, UK S Hurst Geneva University, Geneva, Switzerland

D A Jones St. Mary’s University College, Twickenham, UK J Kassner University of Baltimore, Baltimore, MD, USA A Kaufman University of Georgia, Athens, GA, USA P Kelly London School of Economics, London, UK D Keown Goldsmiths College, University of London, London, UK P King De Montfort University, Leicester, UK B M Knoppers McGill University, Montreal, QC, Canada C M Koggel Bryn Mawr College, Bryn Mawr, PA, USA M G Kuczewski Loyola University Chicago, Maywood, IL, USA E Lagerspetz University of Turku, Turku, Finland D Lamb (Formerly) University of Birmingham, Birmingham, UK M Latham Manchester Metropolitan University, Manchester, UK K Lee (Formerly) University of Manchester, Manchester, UK D Lefkowitz The University of Richmond, Richmond, VA, USA H Lesser University of Manchester, Manchester, UK C Levine United Hospital Fund, New York, NY, USA J Lyden Dana College, Blair, NE, USA C Magis CONASIDA, Mexico M Maliapen University of Sydney, Sydney, NSW, Australia and University of Central Lancashire, Preston, UK

Contributors to Volume 1 A Marturano Catholic University of the Sacred Heart of Rome, Rome, Italy P McCarthy (Formerly) Lancaster University, Lancaster, UK D McGill Indiana University, Bloomington, IN, USA C Megone University of Leeds, Leeds, UK G Mellema Calvin College, Grand Rapids, MI, USA B Mepham University of Nottingham, Nottingham, UK A C Michalos Brandon University, Brandon, MB, Canada P Moizer University of Leeds, Leeds, UK T Murphy University of Illinois College of Medicine, Chicago, IL, USA M P Nelson Michigan State University, East Lansing, MI, USA L Nordenfelt Linko¨ping University, Linko¨ping, Sweden I A S Olsson Universidade do Porto, Porto, Portugal W Outhwaite Newcastle University, Newcastle upon Tyne, UK G Palmer-Fernandez Youngstown State University, Youngstown, OH, USA E Pluhar Pennsylvania State University, Uniontown, PA, USA M E Price Washington, DC, USA J Pritchard University of Central Lancashire, Preston, UK L M Purdy Wells College, New York, NY, USA C Quigley Mount Dora, FL, USA

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F G Reamer Rhode Island College, Providence, RI, USA J D Rendtorff Roskilde University, Roskilde, Denmark D B Resnik National Institutes of Health, Triangle Park, NC, USA D Rothenberg New Jersey Institute of Technology, Newark, NJ, USA P Sandøe University of Copenhagen, Frederiksberg, Denmark J Sandberg University of Gothenburg, Gothenburg, Sweden D Schroeder University of Central Lancashire, Preston, UK, and University of Melbourne, Melbourne, VIC, Australia U Schu¨klenk (Formerly) University of Central Lancashire, Preston, UK; Queens University, Ontario, Canada M J Selgelid The Australian National University, Canberra, ACT, Australia D H Siegel Rhode Island College, Providence, RI, USA A Simpson Defence Science and Technology Laboratory, Wiltshire, UK C Spahn Keimyung University, Daegu, Korea J P Sterba University of Notre Dame, Notre Dame, IN, USA T Takala University of Helsinki, Helsinki, Finland J Tao City University of Hong Kong, Hong Kong, China M S Taylor Maldon, UK N Taylor University of the West of England, Bristol, UK S Vandamme Erasmus Medical Center, Rotterdam, The Netherlands

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J J M van Delden Utrecht University, Utrecht, The Netherlands

C Winch King’s College London, London, UK

S van Hooft Deakin University, Burwood, VIC, Australia

E R Winkler University of British Columbia, Vancouver, BC, Canada

E van Leeuwen Radboud University Nijmegen Medical Center, The Netherlands

L Witthøfft Nielsen National University of Singapore, Singapore

D Warner Graduate Institute of International and Development Studies, Geneva, Switzerland

Z Xiaomei Chinese Academy of Medical Sciences/Peking Union Medical College, Beijing, China

K Warwick University of Reading, Reading, UK

K Yu Hong Kong Polytechnic University, Hong Kong, China

M Weir Bond University, Gold Coast, QLD, Australia J V M Welie Creighton University, Omaha, NE, USA B Williamsy (Formerly) University of California at Berkeley, Berkeley, CA, USA

y

Deceased.

N Zack University of Oregon, Eugene, OR, USA M H Zawati McGill University, Montreal, QC, Canada

GUIDE TO USING THE ENCYCLOPEDIA STRUCTURE OF THE ENCYCLOPEDIA The material in the encyclopedia is arranged as a series of articles in alphabetical order. There are three features to help you easily find the topic you’re interested in: an alphabetical contents list, cross-references to other relevant articles within each article, and a full subject index.

1. ALPHABETICAL CONTENTS LIST The alphabetical contents list, which appears at the front of each volume, lists the entries in the order that they appear in the encyclopedia. It includes both the volume number and the page number of each entry.

2. CROSS REFERENCES All of the entries in the encyclopedia have been cross-referenced. The cross-references, which appear at the end of an entry as a See also list, serve four different functions: i. To draw the reader’s attention to related material in other entries ii. To indicate material that broadens and extends the scope of the article iii. To indicate material that covers a topic in more depth iv. To direct readers to other articles by the same author(s) Example The following list of cross-references appears at the end of the entry Global Public Goods See also: Climate Change; Corporate Responsibility; Environmental Justice; Global Ethics, Overview; Innovation (Definition of); Sustainability; Technology Transfer; World Ethics.

3. INDEX The index includes page numbers for quick reference to the information you’re looking for. The index entries differentiate between references to a whole entry, a part of an entry, and a table or figure.

4. CONTRIBUTORS At the start of each volume there is list of the authors who contributed to that volume.

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SUBJECT CLASSIFICATION APPLIED ETHICS Applied Ethics, Challenges to Applied Ethics, Overview Archaeological Ethics Communication Ethics Ethical Expertise in Policy Ethics and Policy Everyday Ethics Forgery and Plagiarism Human Enhancement Human Rights Moral Particularism Organizations and Guidelines Persuasive Technology Precautionary Principle Public Engagement in Science and Technology Reality TV Risk Governance in a Complex World Science and Engineering Ethics, Overview Space Ethics Technology Assessment, Analytic and Democratic Practice

BIOETHICS Animal Research Benefit Sharing Biobanks Bioethics, Overview Bioinformatics and Ethics Biometric Technologies, Ethical Implications Biotechnology Bioterrorism Cloning Community Consent Cyborgs Developing World Bioethics Dignity Dual Use of Biotechnology Ectogenesis Embryology, Ethics of Ethical Experiments Eugenics Fetal Research

Food Ethics Functional Food and Personalized Nutrition Gene Therapy Genetic Ancestry Genetic Engineering of Human Beings Genetic Exceptionalism Genetics and Behavior Genetics and Crime Genetics and Insurance Genetic Screening Genomic Databases, Ethical Issues in Human Enhancement Human Genome Project Human Research Subjects, Selection of Justice in International Research Nanotechnology Neuroethics/Brain Imaging Nutrigenomics Payment of Research Subjects, Ethical Issues in Personalized Medicine and Promissory Science Pharmacogenetics Playing God Preimplantation Genetic Diagnosis Proteomics Public Engagement in Science and Technology Race and Genomics Regenerative Medicine Research Governance Scientific Publishing Scientific Responsibility and Misconduct Sex Selection Slippery Slope Arguments Stem Cells Synthetic Biology Technology, Ethics of: Overview Therapeutic Misconception Xenotransplantation

COMPUTERS AND INFORMATION MANAGEMENT Computer and Information Ethics Computer Security Electronic Surveillance

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Global Access to Knowledge Internet, Regulation and Censorship Open Source Software Population Health Data Privacy, Ethics of Virtual Communities, Ethics of

ECONOMICS/BUSINESS Accounting and Business Ethics Advertising Altruism and Economics Auditing Practices Business Ethics and Gender Issues Business Ethics and the Quality of Life Business Ethics, Overview Business Practices and Agent Virtue Conflict of Interest Consumer Rights Corporate Ethics, Reputation Management Corporate Governance Corporate Responsibility Corporations, Ethics in Economic Ethics, Overview Economic Globalization and Ethico-Political Rights Economies and Trust Environmental Compliance by Industry Executive Compensation Global Public Goods Improper Payments and Gifts Intellectual Property Rights Patents Professional Ethics Research Funding and Academic Freedom Sen’s ‘‘Capabilities’’ and Economic Welfare Socially Responsible Investment Strikes Tourism Trade Law and Globalization Whistleblowing Workplace Ethics: Issues for Human Service Professionals in the New Millennium

ENVIRONMENTAL ETHICS Agricultural Ethics Animal Rights Anthropocentrism Biocentrism Biodiversity Built Environment, Ethics and the Climate Change Deep Ecology

Development Ethics Development Issues, Environmental Ecological Balance Environmental Economics Environmental Ethics, Overview Environmental Impact Assessment Environmental Justice Ethics of a Sustainable World Population in 100 Years Food Ethics Gaia Hypothesis Intrinsic and Instrumental Value Land Use Issues Mobility (Transport) Nuclear Testing Precautionary Principle Speciesism Stewardship Sustainability Vegetarianism Veterinary Ethics Wildlife Conservation Zoos and Zoological Parks

ETHICS AND POLITICS Ageism Border Control Children’s Rights Civil Disobedience Civilian Populations in War, Targeting of Collective Guilt Communitarianism Cosmopolitanism Election Strategies Ethics and Policy Ethnocultural Minority Groups, Status and Treatment of Gun Control Human Rights Imperialism Indigenous Rights Just War Theory Leadership, Ethics of Machiavellianism Media Depiction of Ethnic Minorities Military Ethics Nuclear Deterrence Nuclear Warfare Police and Race Relations Political Obligation Privacy, Challenges to Professional Ethics Property Rights

Subject Classification

Racism Risk Governance in a Complex World Sexism Social Networking Sites Strikes Terrorism Tourism Warfare, Codes of Women’s Rights

ETHICS IN EDUCATION Authority in Education Education Ethics, Civil Education IntelligenceTesting Political Correctness Religion in Schools

LEGAL Acts and Omissions Affirmative Action Capital Punishment Child Abuse Children’s Rights Citizenship Crime and Society Custody of Children Defenses at Criminal Law Disability, Definition Within Law and Society Divorce Drugs, Moral and Legal Issues Freedom of Expression Genetics and Crime Global Public Goods Homicide, Criminal Innovation, Definition of Jury Conduct Juvenile Crime Normative Coherence, Theory of Parliamentary Ethics Police Accountability Police and Race Relations Rape Safety Laws Social Responsibility Principle Suicide (Not Assisted) Technology Transfer Trade Law and Globalization Undercover Investigations, Ethics of Victimless Crimes Women’s Rights

MEDICAL ETHICS Abortion Acts and Omissions Addiction Advance Directives AIDS: Ethical Issues in Health Care AIDS in the Developing World Anatomy, Ethics of Autonomy Brain Death Care, Ethics of Clinical Ethics Cloning Complementary Medicine Confidentiality, General Issues of Conjoined Twins Conscientious Objection Cosmetic Surgery Death, Definition of Death, Medical Aspects of Dental Ethics Dignity Disability, Definition Within Law and Society Do-Not-Resuscitate Decisions Ectogenesis Embryology, Ethics of Euthanasia (Physician-Assisted Suicide) Evidence-Based Medicine Fetal Research Fetus Gene Therapy Genetic Counseling Genetics and Behavior Genetic Screening Health and Disease, Concepts of Health Impact Assessment Health Technology Assessment Historical Evidence in Medical Ethics, Use of Infectious Diseases Infertility Informed Consent Life, Concept of Medical Codes and Oaths Medical Ethics, History of Medical Ethics, Use of Empirical Evidence in Medical Futility Medical Humanities Mental Disorder, Concept of Neuroethics/Brain Imaging Nursing Obesity Organ Donation and Transplantation

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Subject Classification

Palliative Care Patients’ Rights Physiotherapy, Ethics of Placebo Treatment Preimplantation Genetic Diagnosis Preventive Medicine Psychiatric Ethics Psychiatry, Coercive Treatment Psychosurgery and Physical Brain Manipulation Public Health Ethics Randomized Trials Reproductive Technologies, Overview Research Ethics, Clinical Research Ethics Committees Resource Allocation Right to Know and Right Not to Know Savior Siblings Slippery Slope Arguments Stem Cells Suggestion, Ethics of Synthetic Biology

PHILOSOPHY/THEORIES Aristotelian Ethics Autonomy Biopower (Foucault) Buddhism Care, Ethics of Casuistry Christian Ethics, Protestant Christian Ethics, Roman Catholic Codes of Ethics Communitarianism Confucianism Consequentialism and Deontology Contractarian Ethics Cosmopolitanism Darwinism Democracy Dignity Discourse Ethics Discrimination, Concept of Distributive Justice, Theories of Egoism and Altruism Epicureanism Evil, Problem of Evolutionary Perspectives on Ethics Existentialism Feminist Ethics Freudianism Game Theory Global Ethics, Approaches Global Ethics, Overview Greek Ethics, Overview

Hedonism Hermeneutics Hinduism Human Nature, Views of Humanism Islam Judaism Kantianism Liberalism Life, Concept of Loyalty Machiavellianism Marxism and Ethics Mercy and Forgiveness Moral Development Moral Particularism Moral Relativism Multidisciplinary Approaches to Ethics Native American Cultures Nature versus Nurture Needs and Justice Normative Coherence, Theory of Pacifism Painism Paternalism Perfectionism Personalism Platonism Playing God Political Obligation Poststructuralism Pragmatism Principlism Religion and Ethics Responsibility Rights Theory Self-Deception Sikhism Slippery Slope Arguments Solidarity Stoicism Taoism Theories of Ethics, Overview Theories of Justice, Rawls Thomism Transhumanism Trust Utilitarianism Virtue Ethics

SOCIAL Adoption Affordable Housing, Ethics of Ageism

Subject Classification

Appearance, Ethics of Border Control Built Environment, Ethics and the Child Abuse Children’s Rights Cosmetic Surgery Cosmopolitanism Custody of Children Death, Social Attitudes Toward Disaster Relief Divorce Elderly, Social Attitudes Toward Equality and Egalitarianism Ethics and Policy Ethnocultural Minority Groups, Status and Treatment of Exploitation Family, The Female Circumcision and Genital Mutilation Friendship Gambling in the United States Gender Roles Global Ethics, Approaches Global Ethics, Overview Homelessness Homosexuality, Societal Attitudes Toward Human Rights Indigenous Rights Media Depiction of Ethnic Minorities Mobility (Migration) Mobility (Transport) Pedophilia Personal Relationships Police and Race Relations Political Ecology Poverty Privacy, Challenges to Professional Ethics Prostitution Race and Genomics Racism Risk Governance in a Complex World

Sex Equality Sexism Sexual Orientation Slavery and Human Trafficking Social Ethics, Overview Social Responsibility Principle Social Services Ethics, Overview Social Work Sports, Ethics of Strikes Tourism Transsexualism

SOCIAL/MEDIA Arts, The Broadcast Journalism Censorship Confidentiality of Sources in Social Research Homelessness Journalism Ethics Literature and Ethics Media Depiction of Ethnic Minorities Media Organizations as Social Institutions Media Ownership Objectivity in Reporting Pornography Property Rights Publish-or-Perish Syndrome Reality TV Sexual Content in Films and Television Social Networking Sites Social Security Social Services Ethics, Overview Social Welfare, Provision and Finance Tabloid Journalism Truth Telling and Journalism Violence in Films and Television Welfare Policies Women’s Rights

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PREFACE

S

ince the publication of the first edition of the Encyclopedia of Applied Ethics, the world has changed. The postmillennium and post-9/11 context has brought with it a change of emphasis at the very least. Ethical issues concerning the response to terrorism, including measures such as biometric identification technologies, have moved to center stage. It is not only in the sociopolitical context, however, that we see this. At the turn of the century the effort to map and sequence the human genome was completed, leading to considerable debate about the results, interpretation of the information, and potential applications – in medicine and nutrition, for example. The promise of stem cell science has provoked a great deal of discussion, together with both hype and anxiety. Ethical issues also increasingly have a global dimension, These developments demonstrate the ongoing need for ethical discussion, even if the range of topics has expanded. The second edition contains, therefore, most of the first-edition topics, plus articles on issues that were not on the horizon, or only just barely, in 1998. However, ethical reflection on issues with a longer history has not ceased. So in this edition we have in some cases included revised and updated versions of entries that were in the earlier one, along with newly commissioned articles. There remain some from the first edition that are reprinted, normally because they were regarded as ‘classic’ entries. In addition to the areas in which particular issues arise, it is still essential, as it was in 1998, for those engaged in applied ethics to reflect on what, if anything, is being ‘applied.’ The Encyclopedia therefore includes a number of articles on ethical and philosophical approaches, both historical and contemporary, religious and secular. It is not necessarily the case, however, that in applied ethics what is involved is the application of a theory. Some would argue that a central task of applied ethics, and one that is prior to the application of any theory, is the very identification of the moral dimensions of a situation. The Encyclopedia contains entries on applied ethics itself and on challenges to it. Ethical theory itself is not static; it evolves and develops, and advances in science, for example, can lead us to recognize that positions once held are no longer plausible: the very concepts we use can change (as, for example, the concept of ‘parent’ has evolved in response to developments in reproductive technology). Several disciplines may be involved in applied ethics: one branch of applied ethics, for example, bioethics, is commonly explicated in terms of ethical, legal, social, and philosophical issues. In this Encyclopedia by no means are all of the articles written by philosophers: some are written by practitioners in the particular fields in question; others by academics from disciplines such as law and economics. In this second edition we have taken a different approach to the editorial board. Section editors have been engaged for each of the main areas covered: subareas of applied ethics. These include applied ethics (Hub Zwart), bioethics (Glenn McGee), environmental ethics (Martin Reynolds), information and computer ethics (Alan Gillies), legal ethics (Tom Faunce), and medical ethics (Søren Holm). Sadly, our original section editor for business ethics, Bernard Hodgson, passed away during the compilation phase, and we were very fortunate that Deborah Poff agreed to replace him. As Editor-in-Chief, I should like to thank the team at Elsevier, including Scott Bentley, who first approached me with the idea for a second edition and worked closely with me on the first; all the section editors; Kirstin Knight, who worked with me as a research assistant, and of course all the contributors. Ruth Chadwick Cardiff University

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CONTENTS VOLUME 1 Abortion

S Gibson

1

Accounting and Business Ethics Acts and Omissions

S Gunz

7

S Gibson

17

Addiction

B Capps, W Hall and A Carter

22

Adoption

D H Siegel

31

Advance Directives Advertising

E van Leeuwen

R L Arrington

Affirmative Action

47

E Frankel Paul

Affordable Housing, Ethics of Ageism

P King

B Mepham

86

Altruism and Economics

J Fender

Anatomy, Ethics of

Y M Barilan I A S Olsson and P Sandøe

Animal Rights

E Pluhar

Anthropocentrism

I de Beaufort, I Bolt and S Vandamme

Applied Ethics, Challenges To Applied Ethics, Overview Archaeological Ethics

Autonomy Benefit Sharing

127

145 156

174

P Moizer C Winch

S Holm D Schroeder B M Knoppers and M H Zawati J P Sterba

116

E R Winkler

D E W Fenner

Authority in Education

109

167

C Megone

Auditing Practices

105

T Dare

D McGill, C Colwell-Chanthaphonh and J Hollowell

Aristotelian Ethics

97

136

L Goralnik and M P Nelson

Appearance, Ethics of

Arts, The

T Murphy U Schu¨klenk, C del Rio, C Magis and V Chokevivat

AIDS in the Developing World

Animal Research

72 79

AIDS, Ethical Issues in Health Care

Biocentrism

56

H Lesser

Agricultural Ethics

Biobanks

40

179 189 205 213 222 229 237 246 251

xxvii

xxviii

Contents

Biodiversity

K Lee

258

Bioethics, Overview

R Gillon

Bioinformatics and Ethics

267

A Marturano

278

Biometric Technologies, Ethical Implications Biopower (Foucault) Biotechnology Bioterrorism

G Arnason

295 300

M J Selgelid

309

M E Price

317

C A Defanti

Broadcast Journalism Buddhism

324

M Coffey

332

D Keown

338

Built Environment, Ethics and the

N Taylor

Business Ethics and Gender Issues

Business Ethics, Overview

A C Michalos

J D Rendtorff

Business Practices and Agent Virtue Capital Punishment Care, Ethics of

361

J D Bishop

H A Bedau

373 381 390

M G Kuczewski

397

B Williams

406

Child Abuse

B A Hocking

Children’s Rights

410

W Aiken and L M Purdy

Christian Ethics, Protestant

417

J Lyden

Christian Ethics, Roman Catholic Citizenship

354

365

N Biller-Andorno

Censorship

423

D A Jones

435

D Warner

Civil Disobedience

445

D Lefkowitz

453

Civilian Populations in War, Targeting of Climate Change Clinical Ethics Cloning

345

C M Koggel

Business Ethics and the Quality of Life

Casuistry

286

A Briggle

Border Control Brain Death

P McCarthy

G Palmer-Fernandez

L Witthøfft Nielsen

467

S Hurst

476

T Takala

Codes of Ethics Collective Guilt

488

J Pritchard

500

M C Brannigan

516

Z Xiaomei

Complementary Medicine

522

M Weir

Computer and Information Ethics

530 J Heesen

538

M Maliapen

Confidentiality, General Issues of

547 F G Reamer

Confidentiality of Sources in Social Research Conflict of Interest

507

A Etzioni

Community Consent

Computer Security

494

G Mellema

Communication Ethics Communitarianism

459

M Davis

M S Taylor

553 562 571

Contents xxix Confucianism

K Yu and J Tao

578

C Quigley

587

Conjoined Twins

Conscientious Objection

J Kassner and D Lefkowitz

Consequentialism and Deontology Consumer Rights

M W Hallgarth

594 602

V di Norcia

614

P Kelly

622

Contractarian Ethics

Corporate Ethics, Reputation Management Corporate Governance

629

J R Boatright

636

L J Brooks

645

Corporate Responsibility Corporations, Ethics in

J Sandberg

J Sandberg

656

Cosmetic Surgery

M Latham

667

Cosmopolitanism

S van Hooft

674

Crime and Society

S Dimock

683

C Levine

691

Custody of Children Cyborgs

K Warwick

699

C Spahn

705

Darwinism

Death, Definition of

A M Capron

Death, Medical Aspects of

D Lamb

Death, Social Attitudes Toward Deep Ecology

723

S van Hooft

Democracy

738

S Dimock

745

E Lagerspetz

754

J V M Welie

762

Dental Ethics

Developing World Bioethics Development Ethics

D B Resnik

771

N Dower

Development Issues, Environmental

779 N Dower

789

L Nordenfelt

800

Disability, Definition within Law and Society Disaster Relief Discourse Ethics

D W Heckendorf

N Zack

807 817

W Outhwaite

Discrimination, Concept of

826

D Hellman

Distributive Justice, Theories of Divorce

731

D Rothenberg

Defenses at Criminal Law

Dignity

714

833

A Kaufman

842

B Baumrin

851

Do-Not-Resuscitate Decisions

J J M van Delden

859

Drugs, Moral and Legal Issues

W M Bush

866

Dual Use of Biotechnology

L Baillie, H Dyson and A Simpson

876

VOLUME 2 Ecological Balance

A Holland

Economic Ethics, Overview

C Luetge

1 13

xxx

Contents

Economic Globalization and Ethico-Political Rights Economies and Trust Ectogenesis

J McMurtry

T Govier

28

A Alghrani

35

Education Ethics, Civil Education Egoism and Altruism

C D Lisman

42

J Narveson

Elderly, Social Attitudes Toward Election Strategies

51 B Spielman

56

M M Jennings

Electronic Surveillance

63

G T Marx and G Ungar

Embryology, Ethics of

81

Environmental Compliance by Industry Environmental Economics

D G Holdsworth

88

M Sagoff

Environmental Ethics, Overview

97

R Sandler

Environmental Impact Assessment

Epicureanism

72

S Holm

Environmental Justice

105

K Ott, F Mohaupt and R Ziegler

J Johnson

133

Equality and Egalitarianism

K Lippert-Rasmussen and N Eyal

J Johnson

Ethical Expertise in Policy Ethics and Policy

114 124

T Magnell

Ethical Experiments

20

141 149

H Zwart

157

C Mitcham and E Fisher

165

Ethics of a Sustainable World Population in 100 Years D Pimentel, M Whitecraft, Z Scott, L Zhao, P Satkiewicz, T J Scott, J Phillips, D Szimak, G Singh, D O Gonzalez and T L Moe

173

Ethnocultural Minority Groups, Status and Treatment of

178

Eugenics

W Kymlicka

D Neri

189

Euthanasia (Physician-Assisted Suicide) Everyday Ethics

C A Baird

Evidence-Based Medicine Evil, Problem of

W A Rogers

217

H J Ehni

Executive Compensation

200 208

226

Evolutionary Perspectives on Ethics

Existentialism

J J M van Delden

M Hourdequin

C Luetge

234 243

J Stewart

250

Exploitation

A Ballantyne

264

Family, The

C Ulanowsky

272

Female Circumcision and Genital Mutilation

L M Kopelman

285

Feminist Ethics

R Tong

295

Fetal Research

R H Blank

304

Fetus

N M Ford

Food Ethics

314

B Mepham

322

Forgery and Plagiarism

D Dutton

331

Freedom of Expression

L A Alexander

339

Freudianism Friendship

A Schetz and T Szubka L Thomas

345 353

Contents xxxi Functional Food and Personalized Nutrition Gaia Hypothesis

B Mepham

A Brennan

360 370

Gambling in the United States

V C Lorenz

375

Game Theory

G Owen

391

Gender Roles

R Tong

399

Gene Therapy

A M Hedgecoe

407

S S-J Lee

414

Genetic Ancestry Genetic Counseling

A Clarke

420 M Ha¨yry

Genetic Engineering of Human Beings

436

Genetic Exceptionalism

P Kakuk

445

Genetics and Behavior

G E Allen

453

Genetics and Crime

M Levitt

Genetics and Insurance Genetic Screening

462

R G Thomas K Dierickx

480

Genomic Databases, Ethical Issues in Global Access to Knowledge

Global Ethics, Overview Global Public Goods

B Berkman and S Chandros Hull

A Achimas Cadariu

Global Ethics, Approaches

504

H Widdows

514 523

C Gill

529

R J Spitzer

538

Health Impact Assessment

R Wachbroit

545

J Lennert Veerman

551

Health Technology Assessment

Hinduism

R E Ashcroft

556

J J Tilley

Hermeneutics

566

F Svenaeus

574

R D Baird

582

Historical Evidence in Medical Ethics, Use of Homelessness

U Wiesing

G J M Abbarno

Homicide, Criminal

593 600

M Wreen

606

Homosexuality, Societal Attitudes Toward Human Enhancement

497

N Dower

Health and Disease, Concepts of

Hedonism

488

T A Faunce

Greek Ethics, Overview Gun Control

470

J Davies

P Moore

616 627

Human Genome Project

J Marshall

636

Human Nature, Views of

J H Barker

644

Human Research Subjects, Selection of Human Rights Humanism

R Ashcroft

M C Brannigan

665

E Steelwater

Imperialism

674

D Moellendorf

Improper Payments and Gifts Indigenous Rights Infectious Diseases

653

683 R A Larmer

J M Valadez M J Selgelid

691 696 704

xxxii

Contents

Infertility

F Baylis

712

Informed Consent

E Gefenas

Innovation, Definition of

721

T A Faunce

Intellectual Property Rights Intelligence Testing

B Andersen

Intrinsic and Instrumental Value

744 A Gillies

752

J Baird Callicott

760

E Moosa and A A Mian

Journalism Ethics Judaism

769

R L Keeble

777

O Leaman

Jury Conduct

786

M A Nolan

Just War Theory

794

N Fotion

801

Justice in International Research Juvenile Crime Kantianism

808 818

K Ebels-Duggan

827

D Baker and A Booth

Leadership, Ethics of Liberalism

A J London

S Dimock

Land Use Issues

835

R N Kanungo and M Mendonca

D Conway

Life, Concept of

843 858

M Mori

Literature and Ethics Loyalty

737

E Johnson

Internet, Regulation and Censorship

Islam

731

866

T A Faunce

877

S Keller

885

VOLUME 3 Machiavellianism

M Ramsay

Marxism and Ethics

1

A Vincent

Media Depiction of Ethnic Minorities

10 C Critcher

Media Organizations as Social Institutions Media Ownership

S Miller

E Johnson

18 33 44

Medical Codes and Oaths

R Baker

52

Medical Ethics, History of

R Baker

61

Medical Ethics, Use of Empirical Evidence in Medical Futility

L M Kopelman

Medical Humanities

W E Stempsey

Mental Disorder, Concept of Mercy and Forgiveness Military Ethics

K W M Fulford A MacLachlan

N Fotion

P Borry

70 78 90 99 113 121

Mobility (Migration)

A Sager

128

Mobility (Transport)

C Mullen

137

Moral Development

S Berges

145

Contents xxxiii Moral Particularism

A Thomas

Moral Relativism

152

J C Ficarrotta

160

Multidisciplinary Approaches to Ethics Nanotechnology

A Cribb

173

S Johnson

Native American Cultures

182

T Clough Daffern

Nature versus Nurture

186

G E Allen

Needs and Justice

197

G Thomson

Neuroethics/Brain Imaging

W Glannon

Normative Coherence, Theory of Nuclear Deterrence

208 216

T A Faunce

225

G Fairbairn and D Webb

231

Nuclear Testing

S Lee

240

Nuclear Warfare

P Viminitz

243

Nursing

A Gallagher

Nutrigenomics Obesity

252

S S -J Lee

260

I de Beaufort and S van de Vathorst

265

Objectivity in Reporting

M Kuriyama

274

Open Source Software

A O’Neill

281

Organ Donation and Transplantation Organizations and Guidelines

A-M Farrell and M Quigley

H ten Have

288 297

Pacifism

A Seller and R Norman

307

Painism

R D Ryder

321

Palliative Care

T Shimizu

Parliamentary Ethics Patents

328

S Dimock

M Wreen

Paternalism

349

K Grill

Patients’ Rights

359

B M Dickens

Payment of Research Subjects, Ethical Issues in Pedophilia

LD de Castro and CL Teoh

Personalism

395

A Gilman

404

P Schotsmans and J Selling

Personalized Medicine and Promissory Science Persuasive Technology Pharmacogenetics

P-P Verbeek R Chadwick

Physiotherapy, Ethics of Placebo Treatment

J Sim J V M Welie

S H Svavarsson

Police and Race Relations Political Correctness

414 M Arribas-Ayllon

422 431 438 443 453 461

W Grey

Police Accountability

380 389

D B Rasmussen

Personal Relationships

Playing God

370

S Kershnar

Perfectionism

Platonism

338

468 N Walker T Jones E Johnson

474 485 496

xxxiv

Contents

Political Ecology

J P Clark

Political Obligation

T Hopton

Population Health Data Pornography

517

J Roberts

527

S Easton

Poststructuralism Poverty

505

538

T May

546

P Spicker

Pragmatism

554

J Liszka

561

Precautionary Principle

S Holm and E Stokes

Preimplantation Genetic Diagnosis Preventive Medicine Principlism

569

G Pennings and G de Wert

N Nikku and B E Eriksson

584

O Rauprich

Privacy, Challenges to Privacy, Ethics of

590 P McCarthy

599

M Mizutani

Professional Ethics Property Rights

576

609

T Airaksinen

616

M H Werner

624

Prostitution

I Primoratz

632

Proteomics

RM Twyman

642

Psychiatric Ethics

D Gracia

650

Psychiatry, Coercive Treatment

R L P Berghmans

658

Psychosurgery and Physical Brain Manipulation

J-N Missa

667

Public Engagement in Science and Technology

J E W Broerse and T de Cock Buning

674

Public Health Ethics

H Schmidt

Publish-or-Perish Syndrome Race and Genomics Racism

P E Devine

696

R Tutton and C Bliss

699

A J Skillen

Randomized Trials Rape

685

705 M Bobbert

717

Leslie Pickering Francis

726

Reality TV

C Lumby

734

Regenerative Medicine

K-T Ip

741

Religion and Ethics

I Markham

748

Religion in Schools

J Laycock

757

Reproductive Technologies, Overview Research Ethics, Clinical

J H Solbakk and S M Vidal

Research Ethics Committees

Resource Allocation Responsibility

Rights Theory

D C Poff

A D Levine

797

813

G Williams

821 T Takala

W Cooney

Risk Governance in a Complex World

775

805

D Evans

Right to Know and Right Not to Know

766

786

C Thomson

Research Funding and Academic Freedom Research Governance

L Frith

829 836

O Renn

846

Contents

xxxv

VOLUME 4 Safety Laws

M A Menlowe

1

M Ha¨yry

7

Savior Siblings

Science and Engineering Ethics, Overview Scientific Publishing

R E Spier

14

B A Fischer and M J Zigmond

Scientific Responsibility and Misconduct Self-Deception

32

A Briggle

41

P Boddington

49

Sen’s ‘‘Capabilities’’ and Economic Welfare

M Altman

58

Sex Equality

S Dodds

68

Sex Selection

E Blyth

76

Sexism

P Johnson

84

Sexual Content in Films and Television Sexual Orientation Sikhism

J Weckert

E Stein

97

N-G K Singh

105

Slavery and Human Trafficking Slippery Slope Arguments

B Bramon and J Leslie

Social Networking Sites

C J Cowton and J Sandberg

167 S Graumann

Social Welfare, Provision and Finance

175

P Spicker

182

F G Reamer

189

R ter Meulen and R Houtepen

Space Ethics

198

J Arnould

Speciesism

206

R D Ryder

Sports, Ethics of Stem Cells

213

A Edgar

220

N Hammond-Browning

Stewardship

227

A C Leopold

235

S H Svavarsson

242

J Pike

250

Suggestion, Ethics of

E Mordini

Suicide (Not Assisted) Sustainability

257

G Fairbairn

266

C Blackmore

Synthetic Biology Tabloid Journalism Taoism

160

P Spicker

Social Work

142 152

T A Faunce

Social Services Ethics, Overview

Strikes

134

R Watermeyer

Social Responsibility Principle

Stoicism

122

D D Welch

Socially Responsible Investment

Social Security

114

W van der Burg

Social Ethics, Overview

Solidarity

91

274

A M Calladine and R ter Meulen

281

S Miller

289

H-G Moeller

298

Technology Assessment, Analytic and Democratic Practice Technology, Ethics of: Overview

R van Est and F Brom

A J Braunack-Mayer, J M Street and N Palmer

306 321

xxxvi

Contents

Technology Transfer Terrorism

T A Faunce

328

S Ashford

334

Theories of Ethics, Overview Theories of Justice, Rawls

T Chappell A Loizou

Therapeutic Misconception Thomism

343 354

Teck-Chuan Voo

369

J P Dougherty

Tourism

378

R Prosser

386

Trade Law and Globalization

T A Faunce

407

Transhumanism

P D Hopkins

414

Transsexualism

D Kirby

423

Trust

O Lagerspetz

426

Truth Telling and Journalism

S J A Ward

Undercover Investigations, Ethics of Utilitarianism

435

G T Marx

442

B Eggleston

452

H F Kaplan

459

Vegetarianism Veterinary Ethics

B E Rollin

463

Victimless Crimes

E Heinze

471

Violence in Films and Television Virtual Communities, Ethics of Virtue Ethics

M I Tulloch and J C Tulloch

483

M Parsell and C Townley

495

R B Louden

Warfare, Codes of

503

J Wagner DeCew

511

Welfare Policies

N Barry

519

Whistleblowing

M Davis

531

Wildlife Conservation Women’s Rights

C L Spash and J Aldred L Walter

Workplace Ethics: Issues for Human Service Professionals in the New Millennium Xenotransplantation Zoological Parks SUBJECT INDEX

539

S Schicktanz V N Kisling Jr.

548 P A Kurzman

559 565 575 585

A

Abortion S Gibson, (Formerly) University of Cumbria, Lancaster, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Embryo Refers to the first 8 weeks of development following conception. Fetus Refers to the stage of development from the ninth week of pregnancy until birth. In vitro embryo An embryo conceived and developed outside of the woman’s body. Principle of double effect Distinguishes between intended bad consequences (which are not permitted) and foreseen but unintended bad consequences (which are sometimes permitted).

Introduction Although the term ‘abortion’ is defined as the premature termination of a pregnancy resulting in the death of the embryo or fetus, it is generally understood to refer to the deliberate termination of an unwanted pregnancy. As such, it is distinguished from miscarriage, and its practice is controversial. Although abortion is legally sanctioned in most areas of the world, it is legal only under restricted circumstances, primarily relating to the reasons for abortion and the stage of development of the fetus. Furthermore, in this respect, different societies vary markedly in the liberality of their laws. Societies that are more permissive in their abortion laws, such as the United Kingdom and the United States, tend to restrict pregnancy in the third trimester of pregnancy. At the other extreme, in Northern Ireland and the Republic of Ireland, abortion is permitted only where the mother’s life is at risk.

The Moral Status of the Fetus Not surprisingly, much of the debate on abortion focuses on the moral status of the fetus. (In the remainder of this article, the term ‘fetus’ is used inclusively to refer to all

‘Pro-choice’ A permissive approach to abortion, defending the woman’s right to choose. ‘Pro-life’ A restrictive approach to abortion, defending the right to life of the embryo or fetus. Second-wave feminism The resurgence of feminist politics in the 1960s and 1970s. Trimester Denotes the different stages of pregnancy. A pregnancy consists of three trimesters of approximately 3 months each.

stages of prenatal development.) This is often stated in terms of rights: The fetus either does or does not have a right to life that may or may not override any competing rights of the mother. At two ends of the spectrum are the ‘conservative’ and ‘liberal’ positions, sometimes referred to as the ‘extreme conservative’ and ‘extreme liberal’ posi­ tions, respectively. The conservative position holds that the fetus has the same moral status as the human adult, including having a right to life, from the moment of con­ ception. The liberal position holds that the fetus does not have the same moral status as a human adult or, in other words, does not have a right to life, which is only acquired sometime after birth. For the conservative, then, abortion is almost always morally wrong; for the liberal, it is morally permissible to end the life of the fetus at any point during pregnancy. The conservative position is also sometimes referred to as a ‘pro-life’ position and the liberal position as ‘pro-choice,’ although these terms can be misleading. The conservative argument can be understood as a theological argument and is often associated with the teaching of the Catholic Church. For example, the Instruction Dignitas Personae on Certain Bioethical Issues, issued by the Congregation for the Doctrine of the Faith in 2008, appeals to the ‘‘bodily and spiritual totality’’ of the human being, ‘‘from the moment of conception.’’

1

2 Abortion

Although it is conceded that there is no empirical evi­ dence for the presence of the soul, it is argued that the progressive and well-defined development of the human embryo is sufficient demonstration of its personhood. Thus, the theological argument is usually backed up with an argument that appeals either to ontology, to the kind of thing that the fetus is, or to its potential, or what the fetus will be like in the future; as such, the argument can be made entirely on secular grounds. Anti-abortion arguments made on the grounds of the potential personhood of the fetus are notoriously difficult. In the first instance, the following question arises: What of the potential of the gametes prior to fertilization? Second, it is not clear why potential personhood should bestow the same rights as actual personhood. For example, a U.S. citizen might potentially become President of the United States. It does not follow that that citizen already has the rights attached to the office of President. Hence, a more promising approach is to appeal to the kind of thing that the embryo already is. Because conception is the point at which the gametes combine to create a genetically distinct human individual, then this is also the point at which a new human being, with the same moral status as any other human being, comes into existence. As John Finnis puts it, Any entity which, remaining the same individual will develop into a paradigmatic instance of a substantial kind already is an instance of that kind. The one-cell human organism originating with the substantial change which occurs upon the penetration of a human ovum by a human sperm typically develops as one and the same individual, into a paradigmatic instance of the rational bodily person, the human person; in every such case, therefore, it is already an actual instance of the human person. (Finnis, 2006: 19)

For Finnis, the embryo is already a ‘‘human being . . . with potential’’ rather than a mere potential human being. Similarly, Don Marquis (2006) rejects the potentiality of the human fetus as the ground for its moral status and instead appeals to the concept of ‘a future like ours.’ Marquis begins by giving an account of what it is that makes killing human beings wrong in general. It is argued that what makes killing an adult human being seriously morally wrong is the loss to that person of his or her future or, specifically, of all the value of that future. Because the fetus can also be said to have such a future of value, killing the fetus is also seriously morally wrong. For the conservative, abortion is nearly always wrong, just as it is nearly always wrong to kill an adult human being. Because they have equal moral status, even where the mother’s life is at risk, it is not clearly the case that it is permissible to end the life of the fetus in order to save the life of the mother, although the principle of double effect is sometimes appealed to as a limited defense of abortion

in this case. However, this does not deal with other difficult cases, such as pregnancy as a result of rape. Where the conservative argument appeals to the humanness of the fetus, the liberal argument is based on the capacities, or lack of capacities, of the fetus. Indeed, it is argued that to appeal to species membership as the ground for moral status is to be guilty of the charge of ‘speciesism.’ Thus, it is not the genetic makeup of the fetus but, rather, its ‘personhood’ that is at issue. Similarly, it is not the value of a future existence but, rather, the capacity to value one’s future that bestows a right to that future. Two classic statements of this position come from Mary Anne Warren and Michael Tooley. Warren, for example, distinguishes the ‘moral’ sense of the term ‘human’ from the ‘genetic’ sense. Being human in the genetic sense – that is, being a member of the species Homo sapiens – is neither necessary nor sufficient for being human in the moral sense, or being a person. Furthermore, it is only if the fetus is human in the moral sense that it is a member of the moral community with a full set of corresponding rights, including the right to life. Because personhood is held to require at least some of a number of characteristics, such as self-awareness, reason, and the ability to communicate, of which the fetus has none, the fetus is not a person. In other words, it is not human in the moral sense, and therefore it does not have a right to life. Like Warren, Tooley claims that only persons can have a right to life, a person being precisely the kind of thing that has a serious right to life. The question then becomes, What kind of thing can have a right to life? For Tooley, having a right involves having a corresponding desire. Thus, Tooley appeals to Joel Feinberg’s ‘interest principle,’ according to which a thing can only have rights if it has or can have interests, and it can only have interests if it has or can have desires. Conversely, something that cannot have desires – a newspaper or a chair, for example – cannot be said to have either interests or rights. Furthermore, Tooley argues, there are specific connections to be found between particular interests and particular rights, such that to have a right to something, an entity must be capable of having an interest that would be furthered by that right. Because the fetus does not possess a concept of itself as something that might continue to exist, it cannot be said to have an interest in its own continued existence and therefore can­ not be said to have a right to that continued existence – that is, a right to life. Nor is it sufficient to appeal to the future desires and interests that the fetus will have if it is allowed to continue to exist. Although the fetus and the person the fetus could become might enjoy physical continuity or bodily identity, they do not enjoy psychological identity and therefore are not one and the same person. Although I might now be glad that the fetus with which I have biological continuity was not aborted, it does not follow that that fetus had an interest in becoming me. Whereas the extreme conservative position is restric­ tive with regard to abortion, the extreme liberal position

Abortion

is permissive. Abortion does not violate any serious rights of the fetus and therefore is not morally wrong. Indeed, as critics have pointed out, because infants and some human adults also lack the capacity for personhood, it seems that killing in these cases would not be wrong either. Critics of the extreme liberal position object to what they view as the arbitrary narrowing of the concept of personhood. Although the liberal might point out that the capacities identified as necessary for personhood are within the Western tradition of philosophy, from Aristotle through Locke and Kant, it remains the case that some of the implications of the extreme liberal position – particularly that infanticide as well as abortion is permissible – are counterintuitive for many people. Some who adopt this position will simply accept the conclusion that infanticide is permitted. Others attempt to counter the claim. Warren, for example, has addressed the problem of infanticide by appealing to the moral significance of birth, arguing that although the newborn infant lacks the capacities for personhood, birth is suffi­ cient for membership of the moral community. It remains the case, however, that critics point to the counterintuitive implications of both extreme conserva­ tive and extreme liberal positions. In particular, there is a widely shared intuition that is reflected in abortion legis­ lation that the practice is permissible in some cases and not in others, whether this depends on the point in preg­ nancy at which the abortion is performed or on the reasons for abortion. What, then, are the alternatives?

Viability For some, ‘viability’ marks a crucial point in the develop­ ment of the fetus. Viability refers to the point at which the fetus is able to survive independently of the mother. It is recognized in legislation in both the United Kingdom and the United States, and it would seem to provide grounds for the belief that abortion becomes more difficult to justify as a pregnancy progresses, or that whereas early abortions are permissible, late abortions usually are not. It also has a great deal of intuitive appeal. The fetus could, if born, continue to develop independently of the mother and is therefore no longer merely a part of the mother’s body over which she has rights of self-determination. In addition, because we not only do not seek to end the lives of premature infants but also positively seek to maintain them, it seems paradoxical to allow the deliberate ending of the life of a fetus at the same stage of development. As Jeff McMahan points out, there does not appear to be any intrinsic difference between a viable fetus and a prema­ ture infant at the same stage of development, and thus if we think that ending the life of the latter is usually wrong, then the same applies to the former. Moral status cannot rest on ‘biological geography,’ as Gillon notes.

3

However, the concept of viability is notoriously proble­ matic. First, there is the question of precisely what is meant by the ability to survive independently. Does it imply the ability to survive without assistance or the ability to survive with assistance? In law, it appears to be understood as the latter. For example, in the United Kingdom, the 1990 amendment to the Abortion Act of 1967 reduced the time limit for abortion in most cases from 28 to 24 weeks on the grounds that it was possible at that point to sustain the life of the premature infant at 24 weeks. This was revisited by parliament when it was proposed that there ought to be a further reduction, again in response to advances in neonatal medicine. However, this points to the central problem with this account of viability: It results in a cutoff point that is moveable in terms of both time and location. This in turn presents both practical and conceptual problems. Practically, it is difficult to determine the point at which the fetus does become viable. Does it require simply that one premature infant survive at, for example, 22 weeks in order for 22 weeks to become the point of viability for all fetuses, or does it require that most or some specified percentage survive? Philosophically, it is difficult to sustain an argument to the effect that moral status varies between time and place, or that the moral status of the fetus can be changed simply by the pregnant woman moving from one area of the world to another. Thus, there appears to be a contradiction in the argument. On the one hand, it is claimed that the moral status of the fetus must rest on intrinsic properties and cannot vary according to whether it is inside or outside of the mother’s body. On the other hand, the moral status of the fetus does appear to vary according to where it is located temporally and spatially. Viability understood as the ability to survive without technological or medical assistance fairs no better. Although specifying a static criterion, albeit one that might be difficult to pinpoint, it renders most fetuses and some children and adults unviable. A person who relies on a pacemaker or kidney dialysis, for example, would not be ‘viable’ under this definition. Furthermore, Beckwith (2003: 488) suggests that viability is always relative to one’s environment because ‘‘outside of the earth’s atmosphere each of us is nonviable.’’

The Violinist and Other Analogies The appeal of the viability criterion lies in the implication that abortion is permissible in some cases but not in others. An alternative approach to theorizing this intuition is found in the work of Judith Jarvis Thomson in one of the most influ­ ential and widely read articles on abortion, first published in 1971. Through a series of analogies, Thomson attempts to show that even allowing the conservatives their assumption that the fetus is a person with a right to life from the moment of conception, abortion is still morally permissible in some

4 Abortion

cases. For Thomson, the permissibility of abortion hinges on what the right to life does or does not entail. Crucially, it is argued that it does not entail a right to whatever is necessary to maintain one’s life. Thus, it cannot be assumed that the fetus’s right to life entails a right to the use of the mother’s body: Sometimes it does, and sometimes it does not. Thomson’s most memorable analogy is that of the violinist. The reader is asked to suppose that she wakes up one morning and finds that she has been kidnapped and a famous violinist’s circulatory system has been plugged into her own so that he can use her kidneys. If she unplugs herself or is unplugged, the violinist will die. However, if she remains attached to him for 9 months, then the violinist will recover and they can go their separate ways. Through this analogy, Thomson argues that the right to life does not always outweigh the right to decide what happens in and to one’s own body or, more generally, that the right to life is not a right to whatever one happens to need to go on living. Although the violinist is a person with a right to life and will die without the use of your body, he does not thereby have the right to the use of your body. He does not have that right because you have not given it to him. In the same way, the fetus only has the right to the use of its mother’s body if the woman has given it that right, and at least in some cases of pregnancy – for example, those that are the result of rape or failed contraception – the woman has not given it that right. The woman has the right to terminate the pregnancy, and even though this will result in the death of the fetus, the fetus is not killed unjustly. If Thomson is correct about what it is to have a right to life, then it follows that abortion is permissible in some cases but not in others. For Thomson, it is permissible where the mother’s life is at stake, where pregnancy is the result of rape, where a reasonable effort has been made to avoid pregnancy (e.g., failed contraception), or where it is the result of ignorance. However, in some cases, the mother might be said to have given the fetus the right to the use of her body, such as when she knowingly conceives and allows the pregnancy to continue. Thus, it is not permissible for a woman who has conceived deliberately and is now 7 months pregnant to terminate that pregnancy because she wants to go on holiday and the pregnancy is inconvenient. Some critics of Thomson’s position take issue with her fairly narrow interpretation of what it is to have a right to life, or they object to her emphasis on property rights, specifically the mother’s right to property in her own body. Others maintain that even if we accept Thomson’s moral framework, it is not clear that abortion is permissible in all those cases that Thomson suggests. Rosalind Hursthouse, for example, arguing from a virtue-based perspective, maintains that it is not clear that remaining plugged into the violinist for 9 months, or continuing an unwanted pregnancy for the same length of time, is more than is morally required of what Thomson terms ‘the minimally decent Samaritan.’ Similarly, McMahan

argues that given Thomson’s own assumptions about what the pregnant woman is or is not entitled to do, abortion, at least where this results in the death of the fetus, is not permitted in very many cases. Furthermore, Thomson’s acknowledgment that her argument provides grounds only for the permissibility of ‘fetal evacuation’ rather than for the permissibility of deliberately killing the fetus presents further difficulties in terms of the responsibilities owed to the fetus following its removal from the woman’s body.

Feminist Approaches to Abortion Not surprisingly, abortion has been important in feminist politics and philosophy. Second-wave feminism in parti­ cular is associated with reproductive rights, including campaigning for ‘abortion on demand.’ However, there is no one feminist position on abortion; indeed, a ‘pro­ choice’ position on abortion is neither necessary nor suf­ ficient for that position to count as a feminist perspective. Among supporters of feminist approaches that do seek to defend abortion, some, such as Warren and Thomson, have taken a rights-based approach. Even here, however, there is disagreement regarding the significance of the moral status of the fetus and the relative importance of the mother’s rights over her own body. Furthermore, other feminist approaches to defending abortion have attempted to shift the focus of debate away from the concept of individual rights and the moral status of the fetus, at least insofar as this is held to depend on the intrinsic properties of the fetus. Instead, there is an emphasis on the relational nature of pregnancy and on the contextual features of a particular woman making a decision about a particular pregnancy. Susan Sherwin states, Women’s personal deliberations about abortion involve contextually defined considerations that reflect their com­ mitments to the needs and interests of everyone concerned, including themselves, the fetus they carry, other members of their household, and so forth. Because no single formula is available for balancing these complex factors through all possible cases, it is vital that feminists insist on protecting each woman’s right to come to her own conclusions and resist the attempt of other philosophers and moralists to set the agenda for these considerations. (Sherwin, 1992: 102)

In a similar vein, Elizabeth Harman argues that the moral status of the early fetus, or the obligations owed to the fetus, depends on the attitude that the pregnant woman takes toward her pregnancy. According to Harman, The decision [the pregnant woman] makes will deter­ mine what attitude she ought to take. If she chooses abortion, then it turns out that the fetus is morally insig­ nificant. If she chooses to continue the pregnancy, then

Abortion the fetus is the beginning of her child, and she owes it love. (Harman, 2000: 317)

Again, the moral status of the fetus is relational: It depends on whether or not the woman chooses to develop a particular kind of relationship with the fetus. For Harman, this helps to explain the different stances, both emotional and moral, that might be taken toward the loss of a wanted pregnancy and the termination of an unwanted pregnancy. Although the same-stage fetus has the same intrinsic properties in each case, it does not have the same relational properties and therefore does not have the same moral status. Although many feminists would defend a woman’s right to choose abortion, either on the grounds of selfdetermination or on the grounds of the unique relationship between mother and fetus, not all feminists find abortion unproblematic. For many, abortion is a feminist issue pre­ cisely because it is a means by which women can respond to and counter the oppressive structures of a patriarchal society. However, it has been claimed that the fetus as much as the mother is a vulnerable being warranting pro­ tection against oppression. The fact that women are oppressed does not remove from them moral responsibility for other vulnerable beings, nor does it justify a disregard for the question of the moral status of the fetus. To some extent, the more nuanced relational accounts of pregnancy and abortion can be seen as an attempt to address this objection. In this respect, a woman’s right to abortion can be seen as a right to exercise her moral as much as her personal autonomy insofar as she is obliged to make a decision about the moral features of her particular situation.

Abortion and Disability Abortion as a potentially oppressive practice has also been a concern from the perspective of disability discrimination. Here, the focus is on the use of selective abortion in cases in which fetal disability is detected. As discussed previously, in the United Kingdom, abortion is restricted after the 24th week of pregnancy on the grounds that the viable fetus has a moral status that does not attach to the nonviable fetus. However, abortion is permitted after the 24-week limit not only in cases in which the mother’s life is at risk but also in cases in which ‘‘there is a substantial risk that the child would suffer serious physical or mental abnormalities, such that they would be seriously handicapped’’ (Abortion Act, 1967, amended 1990). In effect, this means that where the viable fetus has a disability, it is not afforded the same protection as the ‘normal’ viable fetus. On the one hand, the clause might be understood as a permitted or even obligatory response to the suffering of the child, were it to be allowed to develop to term. That is, the abnormal fetus has the same moral status as any other, but it is recognized that there are some cases in which a child would be better off

5

not being born. In such a case, it might be contended that to continue with the pregnancy would be to create a ‘wrongful life.’ On the other hand, no criteria for what is to count as a serious abnormality are provided, and it is clear that the clause has been used as grounds for abortion in a number of cases in which the impact of the abnormality would almost certainly not detract from the living of a worthwhile life.

Conclusion The abortion debate has given rise to a complexity of argument that in turn reflects the complexity of the emo­ tional and cognitive responses to the practice. It is perhaps not surprising, therefore, that there appear to be contra­ dictions, tensions, and gaps in the moral and legal positions that have been developed and adopted. This complexity is extended when the practice of abortion is considered in the context of other areas of reproductive ethics, particularly perhaps the use of the human embryo in research and therapy. Here, the human embryo appears to have been awarded some moral status with, in the United Kingdom at least, very strict legal controls and a ban on the use or development of the in vitro embryo beyond 14 days follow­ ing fertilization. Indeed, a new term, the ‘pre-embryo,’ has been introduced to refer to this stage of development. It is not clear precisely what relationship the moral status of the in vitro embryo has with the moral status of the in vivo embryo, nor with the early or late fetus. Again, it is perhaps necessary to look beyond the intrinsic properties of each in order to begin to give a satisfactory account. However, this suggests that the ethical issues surrounding abortion are likely to become more, rather than less, demanding, point­ ing to the importance of continuing to pursue better arguments and better understanding. See also: Ectogenesis; Embryology, Ethics of; Eugenics; Feminist Ethics; Fetal Research; Fetus; Reproductive Technologies, Overview.

Further Reading Archard D (2004) Wrongful life. Philosophy 79(3): 403–420. Beckwith F (2003) When you come to the fork in the road, take it: Abortion, personhood, and the jurisprudence of neutrality. Journal of Church and State 45(3): 485–497. Congregation for the Doctrine of the Faith (2008) Instruction Dignitas Personae on Certain Bioethical Issues. http://www.catholic-ew.org.uk/ catholic_church/what_does_the_catholic_church_teach/ vatican_documents/dignitas_personae_new_vatican_document_on_ bioethics (accessed March 2010). Finnis J (2006) Abortion and health care ethics. In: Kuhse H and Singer P (eds.) Bioethics: An Anthology, 2nd edn. Oxford: Blackwell. Gillon R (2001) Is there a ‘new ethics of abortion’? Journal of Medical Ethics 27(Suppl. 2): ii5–ii9. Harman E (2000) Creation ethics: The moral status of early fetuses and the ethics of abortion. Philosophy and Public Affairs 28(4): 310–324. Hursthouse R (1987) Beginning Lives. Oxford: Blackwell.

6 Abortion Kuhse H and Singer P (2009) A Companion to Bioethics, 2nd edn. Oxford: Wiley–Blackwell. Marquis D (2006) Why abortion is immoral. In: Kuhse H and Singer P (eds.) Bioethics: An Anthology, 2nd edn. Oxford: Blackwell. McMahan J (2007) Infanticide. Utilitas 19(2): 131–159. Sherwin S (1992) No Longer Patient. Philadelphia: Temple University Press. Thomson JJ (2006) A defense of abortion. In: Kuhse H and Singer P (eds.) Bioethics: An Anthology, 2nd edn. Oxford: Blackwell. Tooley M (2006) Abortion and infanticide. In: Kuhse H and Singer P (eds.) Bioethics: An Anthology, 2nd edn. Oxford: Blackwell. Warren MA (1997) On the moral and legal status of abortion. In: LaFollette H (ed.) Ethics in Practice: An Anthology. Oxford: Blackwell. Warren MA (2000) Moral Status: Obligations to Persons and Other Living Things. Oxford: Clarendon.

Relevant Websites http://www.bbc.co.uk/ethics/abortion – BBC, ‘Ethics Guide: Abortion.’

http://www.prochoiceforum.org.uk/index.php – Pro-Choice Forum. http://www.spuc.org.uk – Society for the Protection of Unborn Children.

Biographical Sketch Susanne Gibson has taught philosophy and ethics at Cardiff University and the University of Cumbria (formerly St. Martin’s College). She was awarded her Ph.D. from Cardiff University in 1998 for a thesis that focused on reproductive ethics and the ‘right to reproduce.’ Since then, she has continued to publish on reproductive ethics, particularly the ethics of abortion and the moral status of the human embryo and fetus. She has also written on professional ethics and the ethics of counseling and psychotherapy. She is currently working as a researcher for a mental health charity in London.

Accounting and Business Ethics S Gunz, University of Waterloo, Waterloo, ON, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Accounting Preparing financial information for users who may be internal or external to the organization. Audit The assurance given by a professional accountant that the financial statements prepared by the client comply with the rules of the profession. Bookkeeping The process of financial record keeping. GAAP Generally accepted accounting principles, which are the rules for financial reporting established by the profession. Internal audit The function that provides management assurance that financial operations are in compliance

Introduction This article addresses the broad issues relating to accounting ethics and, in particular, accounting ethics in the context of business. Another article in this collection considers a more specialized application of accounting – auditing. Inevitably there will be some overlap between the two articles. Many of the most spectacular business and accounting scandals of the early twenty-first century included audit failures or, arguably, the failure of the auditors to provide the level of assurance expected of such professionals. Any discussion of accounting ethics will therefore be most useful if it also incorporates its various more specialized applications, including that of the audit. The consideration of accounting ethics should be placed in the broader context of professional ethics. Very generally, professionals are given a position of pri­ vilege in society – often a monopoly over the delivery of certain services – and in return they are deemed to owe certain responsibilities, most of which, if not all, are derived from the relationship of trust between the profes­ sional and society and/or client. This article begins with a discussion of the evolution of accounting both as an occupation and as a profession. This leads to a discussion of ethics in the context of the accounting profession or, more correctly, professions since accountants practice their professions in a variety of settings and as members of different professional bodies. This section concludes with an overview of current issues in accounting ethics. The following section considers accounting ethics in business in a more general sense including concerns, for

with accepted accounting practices and organizational goals and expectations. International accounting standards The standards developed by the international accounting community the purpose of which is to introduce common financial accounting reporting rules across nations. Rules of professional conduct/codes of ethics The rules of ethics with which the accounting professions require all members to comply. Self-regulating profession Professional bodies given the authority to control the professional function by legislation.

example, for whistle-blowing and the tension that might arise because of obligations to both the business entity and to other stakeholders, including existing and potential investors. The article concludes with an overview of trends in accounting ethics research.

Accounting and Its Relationship to Business: A Brief History of Accounting Accounting originated to meet the goals of commerce (using that term in its broadest sense). When owners or some external body needed to make decisions based on the financial condition of the enterprise, persons were called upon to devise a system of reporting. The enter­ prise might have been an estate or a merchant shipping venture, but there was in common a requirement to monitor the decisions of its managers or capture its eco­ nomic value either from time to time or when the venture was complete. The accountant–recorder could be found in most ancient civilizations and accounting practices evolved with varying degrees of sophistication. The functions that were developed are commonly known as bookkeep­ ing, and this term continues to be applied to the practice of recording financial transactions today. The most sig­ nificant evolutionary development of bookkeeping was the invention of double-entry bookkeeping and its sub­ sequent systematization in the work of Pacioli in 1494. This text, written in Italian (and not the usual Latin adopted for major works at that time), taught the process of recognizing all transactions in at least two forms, and it

7

8 Accounting and Business Ethics

became the instructional source in a broad range of coun­ tries and enterprises. Because all transactions were traditionally hand recorded in bound ledgers, the task of maintaining these books was both complex and exacting. The bookkeepers were highly skilled and honorable. With the evolution of the corporation, there was a separation of ownership from management, and with this fundamental change, the role of the accountant also shifted from simply recording transactions to assuming a role in monitoring the information available to investors. Investors were now at arm’s length from owners and the conduct of the business. They were therefore dependent on others for the calculation of the returns on their invest­ ments, and those others initially were the bookkeepers. The early ‘corporations’ arose to meet the needs of the age of exploration beginning in the 1600s (e.g., the East India Company in England, the Dutch East India Company, and, later in the century, the Hudson Bay Company). Each began with a grand scheme of explora­ tion, and typically the Crown provided the legal structure (in England, by Royal Charter) that gave particular ven­ turers a monopoly over exploration in a given territory and the right to sell ‘shares’ or investment units to out­ siders in order to finance the project. The principle of separating investment from manage­ ment provided the vehicle for meeting the needs of the industrial revolution (with the real ‘revolutionary’ period being from approximately the 1760s to the 1830s) with its demands for massive infusions of both short-term and long-term investments to support the industrial processes. This was formally recognized in England in the Joint Stock Companies Act 1856, in which the principle of limited liability was recognized and shareholder inves­ tors’ legal responsibilities for corporate debts were restricted to the value of their share or stock. In turn, shareholders were rewarded for their investment by divi­ dend or capital gain or both. Because they were ‘separate’ from management and had no direct role in management, they also had no access to the financial records of the enterprise. This gave rise to an obvious need for others to monitor and protect their interests, and this role was fulfilled by those now known as auditors. The previously mentioned changes to the organization of commerce called for new and sophisticated methods of financial reporting and evaluation (auditing). No longer was the process simply one of recording and calculation, but there was now a need for the exercise of judgment in terms of how processes (later rules) should be applied and an enormous requirement for trust. Investors must trust the initial reporting process and they must trust that the audit of that process was conducted in their best interests. These are also the essential ingredients for professional responsibility. It was at this time that the profession of accounting and not simply the occupation of bookkeeping came into being. Whereas the early accountant–recorder

(bookkeeper) was always required to be honest and record information accurately, the modern accountants assumed far greater responsibilities as their role in protecting the interests of third parties expanded with the separation of ownership and management in a corporation.

The Profession of Accounting In the short history just provided, the terms ‘occupation’ and ‘profession’ were used without further explanation. The distinction is significant, particularly in the context of ethics. Whereas all members of society hold ethical responsibilities, professions typically have a common organizing theme and institutional structure that devises unique ethical codes and responsibilities with which all members must comply. Professions exercise monopoly – or near monopoly – rights over certain fields of expertise and in return owe society some duty of trust when exercising those rights. Under the common law system, this duty at law is expressed as that of the fiduciary and it exists over and above contractual or tort duties. The range of fiduciary duties include the duty to avoid conflicts of interest and the duty to maintain client confidentiality. In most socie­ ties, professions set boundaries around entry and continued participation. They defend their territory rig­ orously and view the maintenance of their standards of performance, both technical and ethical, as critical ele­ ments in the protection of what is often a monopoly over particular activities. In this respect, accounting is no exception. In contrast to the ancient professions of law, medicine, and the priesthood, accounting is commonly considered a relatively ‘new’ profession with its roots firmly in the needs of the industrial revolution and the evolution of the corporation. Accountants operate in a range of roles. They provide assurance directly to investors and to others. They also assist in the management of the enter­ prise by providing the financial information required for optimizing performance and planning for the future. Alternatively, they may provide independent internal audits to management of the firm’s financial and opera­ tional performance. Although there exist many different accounting professional bodies, even within the same country, a very typical distinction that follows the roles described previously is that between the public accoun­ tant, the management accountant, and the internal auditor. Typically, the public accountant function includes that of the audit of the financial statements for external users, whereas the management accountant and internal auditors are more likely to be found within the enterprise, providing analysis and documentation for management directly.

Accounting and Business Ethics

Professional organizations developed first in Scotland and then in England during the mid-1880s and as the first company’s legislation was imposing requirements both for financial reporting and for the assessment (audit) of that reporting. Perhaps not surprisingly, the evolution of what are commonly called ‘self-regulating’ professions (or bodies given the authority to control the professional function by legislation) was – and in some cases remains – fractious, as organizations vied with each other for political recogni­ tion. The prize in accounting was commonly considered to be the ‘audit,’ no doubt because this involved the key assurance required by regulators for the investing public. Those who engaged in this task were more likely to be found in private practices in the major commercial centers, whereas the management accountant was traditionally hired within industry. Considering the values of nine­ teenth-century England, it would not have been difficult to predict that the public accounting function would be considered to be of somewhat greater prestige than its counterpart in industry. Chartered institutes were formed both in the United Kingdom and in the former and existing colonies in the late nineteenth and twentieth centuries. In the United States, the first certified public accountant (CPA) associations were formed at the end of the nine­ teenth century. In Europe, the accounting functions were more technical in nature and had close links to govern­ mental bodies. This somewhat simplistic description ignores the many schisms and battles that took place in the develop­ ment of accounting professions. In countries that have attained political independence in more recent times, the recognition of qualifications was complicated by the desire to shed the shackles of colonialism, although this was more or less successful with the growth of globaliza­ tion and pressures from international business to recognize the dominance of the international accounting firms and those recognized as qualified to perform an audit within them. Furthermore, although the audit is often considered the sole preserve of chartered institutes in some countries, it is very common to find members of those institutes in a wide range of accounting functions, including those directly within industry, and their accred­ itation bodies have often expanded the scope of the syllabus to reflect these changes. Finally, many of the managerial accounting professional bodies have made serious efforts to increase the status of their profession by expanding the scope of the accreditation process to prepare members for management and strategic roles as well as the traditional accounting function including, in many countries, the audit. In addition, the rigor of the accreditation process has been increased in many jurisdictions. In summary, it remains common to distinguish between public accounting (including the audit) and management accounting. However, regulatory changes

9

in many jurisdictions mean that members of either accounting body are increasingly considered to be quali­ fied to perform the audit function. Further, the management accounting function continues to be deliv­ ered by accountants with any one of the professional accounting qualifications.

Ethics and the Accounting Professions In this section, the focus is on accountants as members of a profession. Although in most jurisdictions it is possible for persons to call themselves accountants while not formally belonging to any of the professional organizations, the ethical responsibilities they owe their clients or society in those cases are no different from those of business people in general. Rules of Professional Conduct/Ethical Codes Professions define the responsibilities of their members by a set of rules of professional practice or code of ethics. These typically commence with broad aspirational provi­ sions that set out the overriding expectations with which members must comply, and these are often very similar across professions. For accountants, the key requirements are competence, the maintenance of client confidentiality, integrity, and acting in the best interests of clients and free from conflicts of interest. All professions require members to exhibit some element of independence. Typically, this means that they must be guided not only by the best interests of the client but also by, to some extent, the wider good of society. Accountants must exercise their function in a manner consistent with upholding a credible fiscal system. Accountants operating as auditors face a very clear obli­ gation to place the interests of the investing public ahead of the interests of management in a particular corporation. The audit is prepared to provide assurance both to inves­ tors and to the financial markets in general. In most jurisdictions, public companies are required to have an audit committee composed of independent directors, which interfaces with the auditors. The following is from the New Zealand Institute of Chartered Accountants’ Code of Ethics: Fundamental Principles: Members undertaking certain types of engagements [e.g., the audit] must be, and be seen to be, Independent. Independence requires: (a) Independence of mind – The state of mind that permits the provision of an opinion without being affected by influences that compromise professional judgment,

10

Accounting and Business Ethics

allowing an individual to act with integrity, and exercise objectivity and professional skepticism. (b) Independence in appearance – The avoidance of facts and circumstances that are so significant that a reasonable and informed third party, having knowledge of all relevant information, including safeguards applied, would reason­ ably conclude a firm’s, or a member of the assurance team’s, integrity, objectivity, or professional skepticism had been compromised.

The key here is that independence must be both in fact and in appearance; that is, it is as important that third parties have good reason to believe the auditor is inde­ pendent as it is that the auditor actually has the independent mind-set. These are distinct requirements: Independence in fact is not sufficient without indepen­ dence in appearance (i.e., third parties may legitimately believe the auditor is independent). An independence standard introduced in Canada provides a good example of the contexts in which independence might be threatened: specifically, selfinterest (generally, the traditional conflict-of-interest circumstances or those in which the auditor or a mem­ ber of the team has a personal interest in the company being audited), advocacy (where the auditor assumes a position of advocacy for the client that threatens objec­ tivity), intimidation (actual or perceived threats from the client that threaten objectivity), self-review (where the auditor is required to review work he or she or someone on the auditor’s team did previously, such as might occur when the member of the audit team moves from the client to the audit team or some other part of the audit firm), and familiarity (where the auditor becomes too close to the client for whatever reason to maintain objectivity). The consequence of violation of a code of ethics or rules of professional conduct is a disciplinary process applied by the professional body, the outcome of which may include removal from the profession. Quite distinct from these formal provisions are the rights of those depending on faulty advice, and thereby suffering harm, to take personal legal action seeking compensation.

Ethical Responsibilities to the Client and to the Employer The accountant’s ethical responsibilities described in the professional codes are owed whether or not the accountant is employed in private practice (a private accounting firm) or directly in a business or other enterprise. The context in which the accountant works raises some important issues. The accountant working in private practice

Private accounting practices provide a broad range of services, not all of which require accounting expertise.

The websites of the four major international accounting firms consistently list assurance (audit) and tax as primary service areas. The balance of services consists of a wide variety of financial advisory and consulting functions. The primary ethical obligation of the accountant in private practice offering services other than the audit is to the client. Concerns may arise, however, regarding the boundaries of this responsibility and, in particular, when the accountant must balance the responsibilities to the client with the perceived responsibilities to the firm and to the profession. The obligation of accountants in these contexts is to ensure they comply with their ethical responsibilities despite the economic pressures that cli­ ents and possibly colleagues might exert. Firms may well institute protocols for the advice and support of the indi­ vidual practitioner, although inevitably there is the potential for conflict between firm practitioners where the stakes are high. The accountant employed in business/industry

There are two distinct roles for accountants in business/ industry. The largest group of employed accountants pro­ vides the basic financial data for the entity and establishes the measurement and control systems. Typically, these accountants report to the chief financial officer (who may or may not herself/himself be an accountant), who is a member of the top management team of the organization. The second category of accountants is that of the internal auditor. This function parallels that of the external auditor in that it provides ‘‘an independent, objective assurance and consulting activity [.It] bring[s] a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes’’ (The Institute of Internal Auditors, 2009). Typically, the internal auditor reports to the audit committee of the firm. Generally, for either of these roles there are no regulations requiring specific professional accounting qualifications for particular functions. Accountants acting in a more general accounting capa­ city owe their primary responsibilities to the employing firm, although if they are also members of a professional body they retain their professional obligations. The prin­ cipal ethical issue they face arises in the context of the rare but troubling circumstances in which there is a con­ flict between these two responsibilities, generally because accountants are being asked by management to act in a manner that is not in compliance with their professional duties. For example, they might be requested to prepare financial information for external reporting purposes in a manner that will ultimately be misleading to external users. The codes of ethics provide protocols for reporting concerns upwards in organizations, including to the top­ most levels if appropriate. The question then becomes, What is the obligation should the accountant’s position not prevail?

Accounting and Business Ethics

Many of the codes of ethics address this issue some­ what obliquely by listing the final option as ‘‘Consult your own attorney as to legal obligations and rights con­ cerning the ethical conflict.’’ (Institute of Management Accountants, Statement of Ethical Professional Practice, Resolution of Ethical Conflict). However, it remains the case that irrespective of what the obligations to report outside of the organization might be, the primary ethical responsibility of accountants, at the point where they are unable to convince an organization to desist from impro­ per activity, has to be to resign from their position. The only alternative would be to resign from the profession – a move that avoids being subject to professional discipline but of course does not remove the possibility of general ethical and possibly legal violations. This is specifically spelt out in the code of ethics of the Chartered Institute of Management Accountants and is consistent both with common sense and with what professionals in general would be advised to do in comparable circumstances: 100.21 If, after exhausting all relevant possibilities, the ethical conflict remains unresolved, a professional accoun­ tant should, where possible, refuse to remain associated with the matter creating the conflict. The professional accountant may determine that, in the circumstances, it is appropriate to withdraw from the engagement team or specific assignment, or to resign altogether from the engagement, the firm, or the employing organization.

The role of internal auditors is quite unique within the corporation because they are both employees and fulfill a role that requires independence from all other employees. The code of ethics of the Institute of Internal Auditors highlights the need for objectivity and what is stated to be the requirement of organizational independence. Specifically, the chief audit executive must report to a level within the organization that allows the internal audit activity to fulfill its responsibilities. The chief audit executive must confirm to the board, at least annually, the organizational indepen­ dence of the internal audit activity. (International Standards of the Professional Practice of Internal Auditing, Practice Related Standard 1110 Organizational Independence).

Individual objectivity is defined carefully and includes a full description of conflict of interest, in fact and appear­ ance. In the Practice Advisory ‘Impairment to Independence or Objectivity’ (1130-1), some of the more complex contexts in which an internal auditor’s independence may be threatened are alluded to. For example, these may include ‘‘personal conflict of interest, scope limitations, restrictions on access to records, per­ sonnel, and properties, and resource limitations, such as funding.’’ The auditor must decline any benefit that ‘‘may

11

create the appearance that the auditor’s objectivity has been impaired.’’ Interestingly, the provisions do not dis­ cuss the more problematic issues of relationships and how these can very subtly impact independence and objectiv­ ity. Simply developing friendships, as is natural in a work environment, may make it more difficult to exercise and be seen to exercise an independent mind-set. However, recommendations such as rotating audit staff between tasks and absolute prohibitions against auditing systems or procedures for which the auditor has had a prior involvement provide some element of protection in this difficult context.

Critical Ethical Issues Faced by Professional Accountants In an introductory article such as this, it is only possible to touch on some of the serious ethical issues that have impacted the accounting profession. The following is a brief discussion of the more important topics. Shifts within Accounting Firms and the Practice of Accounting The importance of independence to the practice of accounting (and auditing in particular) has already been discussed. In good part, the debate arises because there can in fact be no true independence for any professional acting in any capacity. As long as auditors, for example, are paid for their work, they may at least be perceived to feel pressure to comply with client wishes to avoid losing the client fee. Even having audits conducted by a govern­ mental agency raises issues of potential pressure to meet political or, for example, revenue goals that may run counter to those of the investing public in general or existing shareholders. How the accounting profession has handled indepen­ dence in practice has shifted over time. For example, whereas the right of auditors to hold investments in audit clients was lost in the United States in the 1930s, it was not formally removed in the United Kingdom and some other countries until the 1990s, although generally it was not considered acceptable in practice well before that date. The issue of independence, however, became of consider­ able concern with the increased concentration of the international practices and their expansion into multiple new areas from the mid-1980s until the crises in many countries following the collapse of Enron, Worldcom, et al. Although the events are best known as they arose in the United States (and much of what follows is discussed in that context), the firms were truly international and the issues impacted any country in which they operated. Changes to the firms’ structures and scope of opera­ tions led to a certain suspicion by many observers that

12

Accounting and Business Ethics

auditor independence was severely challenged. Firms increasingly saw themselves as professional service pro­ viders and, for example, it took perseverance to find the terms ‘accountant’ or ‘auditor’ on their websites by the turn of the twenty-first century. The audit was often seen as the ‘loss leader’ that attracted clients for other, more profitable services of the firm. Inevitably, tension arose between those in the firm who provided the professional audit services and the balance of the partnership that in many firms, by the late twentieth century, was responsible for more than half of firm revenues. These changes led to considerable concern that can be summarized by com­ ments by Robert Sack, former chief accountant in the Enforcement Division of the Securities and Exchange Commission (SEC): The concern about commercialization today is a concern that the profession, the CPA firm, and individual practi­ tioners may be tempted to put present business interests ahead of the longer term public interest – to upset that delicate, subtle professional balance.

The seriousness of this issue became public knowledge with the requirement by the SEC that firms report the value of audit, audit-related, and non-audit fees paid to their outside auditors (SEC Final Rule S7-13-00, 2001). Soon after this directive, the Wall Street Journal conducted an assessment of actual payments (examining companies in the Standard & Poor’s 500 stock index that had filed disclosures as of a certain date) and found that all 307 companies paid their audit firm for non-audit services using SEC definitions and ‘‘on average, the fees for those other services were nearly three times as big as the audit fees’’ (Weil and Tannenbaum, 2001). There was immediate concern for how this fee struc­ ture might impact the independence of the audit. If an audit client requests a change in accounting treatment, and that same client provides significant work to other partners in the firm, how convinced can users be that the auditor provides the audit opinion with the appropriate level of independence? The SEC Chief Accountant, Lynn Turner, expressed his concerns as follows: ‘‘I’m a firm believer that economics does have a firm impact on people’s behavior’’ (Weil and Tannenbaum, 2001). The firms, on the other hand, were adamant that there was no reason for concern. For example, the partner in charge of PricewaterhouseCoopers’ U.S. audit practice, John O’Connor, was reported to have said, ‘‘A consulting pro­ ject would never influence an auditing decision. Our whole brand is built around trust and objectivity’’ (Weil and Tannenbaum, 2001). Regulators throughout the world were concerned about these changes and proposed new regulations that would remove the right of audit firms to provide consult­ ing services to audit clients. It is beyond the scope of this

article to discuss the extraordinary opposition to such proposals. It is simply worth noting that following the major corporate collapses in the United States, the Sarbanes–Oxley legislation brought about the immediate changes that had been resisted for so long. Equivalent regulation was introduced in other countries. The changes were not perfect and they did not extend to all areas in which conflicts might exist. The critical concern that remains is not for the direct conflicts that may have been addressed, such as those that existed when Arthur Andersen audited the Enron practice and also provided highly valuable consulting services. Rather, as memories of these major audit failures begin to fade, the concern remains for the status of the auditor in the public accounting firm. If firms’ non-audit services expand once more and the value of the audit to the firm decreases in terms of overall firm revenue, the risk will return that the auditor will once again have less status or power in the partnership and in turn may feel pressure to make com­ promises in order to retain his or her existing work. The position of the profession will undoubtedly be that audi­ tors are professionals highly trained in the ability to withstand these pressures. However, we know they have not always done so in the past. If the structural conditions that existed in the 1990s arise again (even in a different form), why would we be convinced that a resort to professionalism is adequate public protection? Rules-Based versus Judgment-Based Accounting In discussing business or professional ethics of any form, it is important to distinguish between legal and ethical obligations. Generally, legal obligations are the minimum standards with which any member of society must com­ ply. Ethical standards go further and apply even though there is no specific legal obligation to take particular action or make a particular decision. For example, there is a school of thought today that calls upon accountants to consider more stakeholders than shareholders in their reporting functions. These will generally involve corpo­ rate decisions, but there will be occasions when the accountant may also need to consider respective rights and interests, and balancing these may call for ethical judgments. At the heart of accounting procedures is a debate as to whether accounting systems (rules of practice) are better if they tend to be rules based or judgment based, and this touches on the discussion presented previously. The U.S. generally accepted accounting principles (GAAP), for example, have usually been described as rules based, in contrast to International Financial Reporting Standards (IFRS), which are said to be principles based. Rules-based standards attempt to provide treatments of all accounting situations, whereas the principles-based approach relies

Accounting and Business Ethics

far more on the professional judgment of the accountant to determine the appropriate accounting outcome. In fact, these two approaches do not form a tidy dichotomy and most accounting standards are somewhere between the two extremes. Furthermore, even in the United States, for example, foreign companies – that is, companies listed in a different country and listed in the United States – may now use IFRS for filings with the SEC and do not need to provide a reconciliation of IFRS results with those from US GAAP. It is worth recognizing here, however, the risks associated with either approach. To have a primarily rules-based approach may result in rules becoming the minimum acceptable standard. As long as accountants can be satisfied that X falls within a rule, they will feel entitled to adopt that approach. Yet this may in fact be inappropriate for broader reasons. Moreover, transactions may be modeled to avoid parti­ cular accounting treatment. For example, long-term leases of capital assets are often constructed in a manner that allows the reporting entity to avoid reporting the asset and liability on the balance sheet even though they are the underlying economic substance of the transaction. In contrast, the principles-based approach outlines broad guidelines and relies on professional judgment to deter­ mine appropriate application in a particular case. However, this too can lead to less than desirable results. For example, the accounting treatment in practice of long-term leases of capital assets appears to be similar between Canada and the United States, even though GAAP in Canada is often described as principles based whereas in the United States it is rules based. In fact, neither approach works without a sound grounding in ethical considerations. Accountants must always consider to whom they are professionally responsible and how therefore they should meet those needs. If complying with a rule meets corporate expectations but does not provide full and fair information to the user, the accoun­ tant has arguably not met his or her ethical responsibilities. Likewise, judgment must be carefully considered in the context of those same ethical duties. Whistle-Blowing and the Professional Accountant Whistle-blowing is a complex and controversial topic. Generally, it refers to the act of reporting beyond the normal channels (internal or external to the organiza­ tion) events that would otherwise be unknown. It may be driven by good or bad motives and, even if well intended, it may be misguided because, for example, of a lack of complete understanding of the circumstances. Because accountants have access to the financial infor­ mation of the organization, not surprisingly, whistleblowing is an issue that has to be addressed by the profession.

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Outside of the general complexities surrounding whistle-blowing, there are at least two issues that should be considered separately here. Whistle-blowing and the duty of confidentiality

A professional accountant may have two competing ethi­ cal obligations. Here, we use the code of ethics of the Institute of Chartered Accountants in Australia as an example: 110.1 A distinguishing mark of the accountancy profes­ sion is its acceptance of the responsibility to act in the public interest. 140.1 The principle of confidentiality imposes an obligation on Members to refrain from: (a) Disclosing outside the Firm or employing organization confidential information acquired as a result of profes­ sional and business relationships without proper and specific authority from the Client or employer or unless there is a legal duty to disclose.

These two provisions are typical of those in most accounting codes of conduct and appear to be in inherent conflict. Assume an accountant uncovers serious manage­ ment fraud and is not able to persuade managers, officers, or directors of the company to take action. A case can be made that it is in the public interest to whistle-blow externally. Perhaps the company receives government funding pursuant to a defense contract, or perhaps there is a risk that the company may fail and shareholders (and other stakeholders) will be seriously harmed. The code, however, makes clear that the accountant must not report externally, despite the responsibility to the public interest: ‘‘In acting in the public interest a Member should observe and comply with the ethical requirements of this Code.’’ These conflicting provisions in many of the account­ ing codes have the potential to place accountants in a difficult position when faced with genuine wrongdoing for which no action is being taken. A regulatory response (e.g., in the United States) has been to require auditors of publicly listed companies who find evidence of wrong­ doing that materially affects the financial statements, and who cannot persuade management or the audit commit­ tee of the board of directors to take action, to resign and provide their report or other documentation to the secu­ rities regulator (the SEC in the United States) within one business day. Whistle-blowing under the Sarbanes–Oxley legislation

The Sarbanes–Oxley (SOX) legislation in the United States was the primary response to the major accounting scandals and business failures of the early twenty-first century. Many of its provisions were adopted in other

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Accounting and Business Ethics

countries, and it is interesting to see how the regulators addressed whistle-blowing because, arguably, had even some of those within the companies who knew of wrong­ doings reported earlier, perhaps some of the events may have been avoided or stopped early enough to prevent the catastrophic harm that in fact resulted. The approach taken by the legislation was a combi­ nation of providing appropriate channels for reporting wrongdoing and regulating protection from retaliation against a legitimate actor. Whistle-blowing is defined as ‘‘the disclosure by organization members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers to persons or organizations that may be able to effect action’’ (Dworkin, 2007: 1760). Whistle-blowers may report either internally or externally. If internal, presumably it is the whistle-blower’s election as to whom he or she reports. However, the legislation mandates that the audit committee must establish clear channels for anonymous whistle-blowing and the complaints must be appropriately reported and followed up. In practice, this process is often subcontracted to an external service. In the case of both external and internal whistle-blow­ ing, the information does not have to be, in fact, correct. However, the whistle-blower must have a reasonable belief in its accuracy. In order to be eligible for the protection provided by SOX, external whistle-blowing must not be to the media but can only be to certain specified entities, specifically ‘‘a federal regulatory or law enforcement agency, or to any member or committee of Congress’’ (Dworkin 2007: 1761).

Disciplining Accountants for Ethical Violations Accountants who are members of self-regulating profes­ sions must comply with rules of professional conduct (codes of ethics). They may also be subject to other regulatory bodies under certain conditions. For example, an accountant acting as an auditor of a public company in the United States is subject to the oversight and disciplin­ ary practices of the Public Company Accountants Oversight Body. Accountants are subject to discipline by the professional body should they be found to have violated those rules. Although the treatment of many violations is relatively straightforward, there are issues that arise. For example, in most jurisdictions it is far more common to find enforcement directed both to mem­ bers of small public accounting firms and small firms themselves rather than large firms or accountants in large public accounting firms. Although this may be because there are simply more ‘eyes’ on individuals in larger practices than smaller ones and internal controls are more thorough, this remains a matter of concern. Is there evidence, perhaps, of bias in enforcement with the professions protecting those in larger and more elite firms? Furthermore, disciplinary actions for violations by employed accountants are relatively uncommon, at least until such time as the professional body is provided evidence of major violations. It is not clear that there are effective mechanisms for investigating the actions of accountants in these contexts, nor are the codes of profes­ sional conduct necessarily particularly well suited for the issues faced by accountants working in this environment.

Trends in Accounting Ethics Research International Accounting Standards One of the most important trends in accounting today is the move toward common international accounting stan­ dards. Although this does not directly raise issues of ethics, it is worth noting this response to globalization of business and industry. A separate initiative is the creation of the International Ethics Standards Board for Accountants (IESBA) by the International Federation of Accountants. This latter body is composed of members from most major professional accounting organizations. The IESBA develops ethical standards and guidance for use by pro­ fessional accountants. It encourages member bodies to adopt high standards of ethics for their members and promotes good ethical practices globally. The IESBA also fosters international debate on ethical issues faced by accountants. (IESBA)

It has its own code of ethics for professional accountants.

As with all other academic disciplines, there have been shifts in ethics research over time. For many years, the focus in accounting ethics has been on the individual, following trends in business ethics in general. If we try, for example, to understand how unethical events transpire or decisions are made, we turn to the individual protago­ nists and ask what kind of people might have done this and how might we develop a new generation of accountants who would approach things differently. Alternatively, how might we select a different type of person who would not lead us in this unfortunate direction? One example of this type of research was a body of work relying on a testing instrument called the Defining Issues Test, the goal of which was to understand levels of moral development of the individual. Of course, the individual is only one unit of ‘measure­ ment’ in our understanding of ethical decision making. An increasingly common approach is to seek to understand the organizational factors that might impact how people behave and how they resolve ethical issues. Thus, for

Accounting and Business Ethics

example, when we examine the behavior of auditors, we can focus on the client–auditor relationship, or we can consider career success factors within the private accounting practice and how the pressures to succeed and to please others might impact decision making. Alternatively, if we are examining accountants employed by organizations, we consider the structural factors that might impact the role the accountants play and their decision-making autonomy. These raise complex issues that are difficult to measure empirically but are leading the discipline in interesting new directions and ones that interact closely with other areas of business ethics. The most dramatic ‘growth’ area in accounting ethics research has been in the broad area of corporate social responsibility and related fields such as sustainable devel­ opment. Because much of what we know about what entities do in this regard comes from their public report­ ing, and the accounting discipline plays a key role in such reporting, the accounting literature has expanded drama­ tically in this area. For example, how should companies report? How much of reporting is a marketing exercise and how much captures real actions or change? What is the impact of reporting on inducing good corporate beha­ vior? All of these are difficult but interesting issues, and the discipline is clearly still evolving. Finally, there remains considerable interest in com­ parative ethics. In particular, there has for some time been an interest in how individual accountants or students in different countries might compare in terms, for example, of approaches to resolving ethical dilemmas. This area has moved beyond simple comparisons to more sophisticated analyses that incorporate cultural and social comparisons.

Conclusion Accounting ethics must be considered within the broader contexts of professional and business ethics. Insofar as it has its own unique perspectives, it must still be considered within the overall framework of how business and the professions interact with society in general and what duties are owed in return for the considerable privilege that individual accountants and accounting institutions are given. The accounting professions have been under fire in recent years as a result of massive financial failures. Where were the accountants in terms of forewarning the public, and what was their role in actually facilitating the events that lay behind the failures? Regulators have responded to what were often ethical failures by changing the rules by which business and the professions that serve business must operate. However, legal compliance, even should it exist, does not automatically equate with good ethical practice. What the recent past (and all the recur­ ring scandals throughout business history) has taught us is that good decision making is a product of both individual

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and organizational ‘virtue.’ Most individuals do not pur­ posely set out to engage in bad practices, but the organizational structures that surround them may lead them in that direction and place enormous costs on the individual who baulks. Insomuch as we educate future accountants in the art of good moral reasoning, we must also expose them to the institutional and organizational pressures that can lead them in directions they should not go. Also, we must always be aware that simple reliance on the professionalism of accountants in general (or lawyers or doctors) is not enough to protect the public. Professionalism must go hand in glove with ensuring the structure of our institutions avoids the conflicts and temp­ tations that challenge sound ethical decision making. See also: Auditing Practices; Professional Ethics; WhistleBlowing.

Further Reading Books LJ and Dunn P (2010) Business & Professional Ethics for Directors, Executives & Accountants, 5th edn. Andover, UK: South-Western Cengage Learning. Dusk RF and Duska BS (2007) Accounting Ethics, Foundations of Business Ethics, Oxford: Blackwell Publishing. Cheffers M and Pakaluk M (2007) Understanding Accounting Ethics, 2nd edn. Sutton, MA: Allen David Press. Dworkin TM (2007) SOX and whistleblowing. Michigan Law Review 1051: 1757–1780. Levitt A (2000, September 28) Testimony Concerning: Commission’s Auditor Independence Proposal. http://www.sec.gov/news/ testimony/ts152000.htm. Mintz SM and Morris RE (2008) Ethical Obligations and Decision Making in Accounting. New York: McGraw-Hill/Irwin. Poulas P (2008) Professionalisation. In: Edwards E and Walker S (eds.) The Routledge Companion to Accounting History, pp. 247–273. London: Taylor & Francis. Prentice R and Bredeson D (2010) Student Guide to the Sarbanes-Oxley Act, 2nd edn, Andover, UK: South-Western Cengage Learning. Public Company Accounting Oversight Board (1934) Consideration of Fraud in a Financial Statement Audit, Securities Exchange Act of 1934, 15 U.S.C.x 78j-1. Audit requirements, Section 10A(b)(3) and (4). Sack RJ (1985) Commercialism in the profession: A threat to be managed. Journal of Accountancy 160: 125–134. Securities Exchange Act of 1934, 15 U.S.C.x 78j-1. Audit requirements, Section 10A. http://www.law.yale.edu/documents/pdf/ SEA_section10A.pdf Weil J and Tannenbaum J (2001, April 10) Big companies pay audit firms more for other services. Wall Street Journal, p. C1. Wyatt AR (2004) Accounting professionalism: They just don’t get it. Accounting Horizons 18(1): 45–53. Zeff SA (2003) How the U.S. accounting profession got where it is today: Part I. Accounting Horizons 17(3): 189–205. Zeff SA (2003) How the U.S. accounting profession got where it is today: Part II. Accounting Horizons 17(4): 267–286.

Relevant Websites http://www2.cimaglobal.com/cps/rde/xbcr/SID-0A82C289­ 0FEDFDD0/live/CodeofEthics_October07.pdf – Chartered Institute of Management Accountants, code of ethics.

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http://www.apesb.org.au/standards.php?id¼10 – Accounting Professional and Ethical Standards Board, Issued Standards. http://www.theiia.org/theiia/about-the-profession/internal­ audit-faqs/?i ¼ 1077 – The Institute of Internal Auditors, ‘Internal Auditing.’ http://www.theiia.org/guidance/standards-and-guidance/ippf/ standards/full-standards – The Institute of Internal Auditors, International Standards for the Professional Practice of Internal Auditing. http://www.imanet.org/about_ethics_statement.asp – Institute of Management Accountants, Statement of Ethical Professional Practice. http://www.ifac.org/ethics – International Ethics Standards Board for Accountants. http://www.nzica.com/AM/Template.cfm?Section ¼ Professional_standards_files&Template ¼/CM/

ContentDisplay.cfm&ContentID ¼ 15545 – New Zealand Institute of Chartered Accountants, code of ethics.

Biographical Sketch Sally Gunz is Professor of Business Law at the School of Accounting and Finance and also Director of the Centre for Accounting Ethics, University of Waterloo. Throughout the years, she has developed research interests in the ethical respon­ sibilities of professionals and has conducted several studies of ethical decision making by accountants and by lawyers. She began her career as a practicing lawyer in Sydney, Australia. She is currently section editor for accounting and finance for the Journal of Business Ethics.

Acts and Omissions S Gibson, (Formerly) University of Cumbria, Lancaster, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Active euthanasia Euthanasia carried out by means of an act, such as administering a lethal injection. Consequentialism The belief that the rightness or wrongness of an act or an omission depends on its consequences. Utilitarianism is the most popular consequentialist moral theory, claiming that the best outcome is the one in which utility (or the good) is maximized. Deontology Deontological moral theories appeal to the concept of duty or obligation. According to the deontologist, there are certain things that either must or

The Doctrine of Acts and Omissions The doctrine of acts and omissions states roughly that there is, or is sometimes, a morally relevant difference between an act and an omission, where the consequences of the act and the omission are identical. Jonathan Glover, although ultimately rejecting the doctrine, neatly sums it up as follows: The ‘acts and omissions doctrine’ says that, in certain contexts, failure to perform an act, with certain foreseen bad consequences of that failure, is morally less bad than to perform a different act which has the identical foreseen bad consequences.

Like the principle of double-effect, which distinguishes between intended and merely foreseeable consequences, underlying the doctrine of acts and omissions is a more general claim that morality is not simply a matter of how things turn out. It thus entails a rejection of consequenti­ alism – for example, in the work of Philippa Foot – and is likewise rejected by consequentialists such as Jonathan Glover, James Rachels, and John Harris. The doctrine of acts and omissions has a number of practical applications. In particular, it seems to imply that there is at least sometimes a morally relevant difference between ‘killing’ and ‘letting die,’ which in turn more or less corresponds to the distinction between active and passive euthanasia. Likewise, those who reject the doctrine tend to reject the moral relevance of this particular distinction. Thus, the question of the intelligibility of the doctrine has

must not be done as a matter of duty or obligation, no matter what the consequences. Euthanasia The deliberate ending of one person’s life by another, with the intention of benefiting the person who dies. Passive euthanasia Euthanasia carried out by means of an omission, such as the withholding or withdrawing of life-sustaining medical treatment. Virtue theory The belief that morality is primarily a matter of discerning and developing the moral virtues. For the virtue theorist, this consists of developing appropriate character traits rather than following rules or aiming for a particular outcome.

significant implications for one of the most controversial issues in contemporary applied ethics, although it has been claimed that the relevance of the distinction between active and passive euthanasia does not hinge on the standing of the acts and omissions doctrine. Even at a theoretical level, however, the debate is firmly rooted in practical examples, insofar as the formu­ lation of the doctrine often begins with the intuitive appeal of cases in which there do appear to be morally relevant differences between an act and an omission with identical consequences:

•

Although it is morally wrong to allow people in underdeveloped countries to die of starvation, to do so is not as wrong as sending them poisoned food. Although it might be morally permissible to leave one injured person to die by the roadside when hurrying to the rescue of several, it would be outrageous to drive over a recumbent person in order to reach the others in time.

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At the same time, opponents of the doctrine are quick to point to cases in which it would generally be agreed that an omission is at least as bad as an act:

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If a man who will inherit a fortune when his father dies omits to give him the medicine necessary for keeping him alive, this is as bad as actively killing him, for exam­ ple, by giving him poison. Smith and Jones both stand to gain a large inheri­ tance if their 6-year-old cousins die. Smith drowns the child while she is taking a bath and arranges things to make it look like an accident. Jones also enters the

•

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Acts and Omissions

bathroom while his cousin is taking a bath, also intending to drown the child. However, as he does so, he sees the child slip, hit her head, and fall face down in the bath. Jones watches and does nothing as the child drowns. Because the intention and the outcome in each case are the same, there is no morally relevant distinction between Smith’s act and Jones’ omission. These counterexamples suggest further that drawing the distinction between an act and an omission is not itself without problems. As Glover points out, in the case in which a man omits to give his father the medicine neces­ sary to keep him alive, the man’s culpability for his father’s death is such that it may be fitting to describe what happens not as an omission but as an act of with­ holding. Similarly, Harris argues that when, for example, a signalman fails to pull the lever necessary to prevent a train from crashing, we are naturally inclined to think of and describe his omission as something that he does. Following Jeremy Bentham, Harris refers to such omis­ sions as ‘negative actions.’ Of course, it does not follow from the construction of convincing counterexamples that the acts and omissions doctrine is false, because the doctrine does not claim that an omission is always less bad than an act with the same consequences. What it does mean, however, is that in order to make sense of the doctrine, some account needs to be given of what is meant by an ‘omission’ and of how we are to distinguish those omissions for which we are not (as) morally culpable from those for which we are.

Varieties of Omission For Foot, the distinction between an act and an omission is understood as the distinction between that which we do and that which we allow to happen. However, she goes on to argue that allowing is itself of two distinct kinds: allowing in the sense of ‘forbearing to prevent’ and allow­ ing in the sense of enabling something to happen. In the first sense, we are to think of a sequence of events as already begun, where the agent could intervene to pre­ vent something from happening but does not. For example, he could prevent someone from walking into quicksand but stands by and does nothing. In the second sense, the agent allows something to happen by removing an obstacle. For example, he removes a plug and allows the bath water to drain away. According to Foot, it is only in the first sense that allowing requires or is equivalent to an omission. In the second sense, we are more likely to talk of commission. Foot develops this idea in a later paper. Again she acknowledges that the alleged moral relevance of the distinction is not straightforward: It is not simply that we are responsible for our acts but not for our omissions,

‘‘for then it would be possible to change the moral char­ acter of certain trains of events by such simple expedients as building respirators which needed to be turned on each day.’’ There is a distinction, however, between allowing in the sense of forbearing to prevent and ‘‘being the agent to whom the happening can be ascribed.’’ Being the agent of a state of affairs is understood in terms of causal respon­ sibility. I am causally and morally responsible insofar as I initiate a sequence of events, whether by means of activity or refraining from activity. Although some reject the claim that omissions can be causes – for example, McLachlan distinguishes between a cause and an absent preventive anti-cause, arguing that although killing someone and failing to prevent a death may sometimes be equally morally wrong, they are always relevantly different moral wrongs – even to accept that we can be causally responsible for some of our omis­ sions does not tell us precisely which omissions we are or are not causally responsible for. As Foot concedes, the world is not neatly divided into separate sequences of events with clear starting points. We might start to wonder whether it is possible to formulate an account of the conceptual difference between an act and an omission, or between doing and allowing, that does not beg the question in favor of the doctrine. As Glover points out, to draw the distinction on the basis of the agent’s culpability, such that an act is taken to be anything that we consider the agent to be morally responsible for and an omission anything that she is not morally responsible for, would make the doctrine an empty analytic truth: An agent is morally responsible for her acts, and an act is anything for which the agent is morally responsible. Similarly, we do not want to claim that we are causally responsible for those outcomes for which we are morally responsible, and vice versa, because this too would be tautological or simply false. The doctrine of acts and omissions is probably not tautological in the sense that Glover suggests – otherwise, there would be no sense in the claim that we are some­ times just as responsible for what we fail to do as we are for what we do. However, there is still the task of deter­ mining which omissions we are (causally or morally) responsible for and which we are not. Here, it becomes apparent that it is very difficult to draw the distinction without some appeal to a prior account of our moral obligations. Thus, Harris considers a number of accounts that attempt to limit our negative actions, or responsibil­ ity for our omissions, to those failures to act in a way that it is our duty to act, or in a way that we might be expected to act, or when not acting constitutes a departure from what normally happens, and argues that insofar as all these accounts appeal in some way to expectation, we need some explanation of what those expectations are grounded in.

Acts and Omissions 19

Duties and Rights In this regard, Foot draws on the distinction between positive and negative duties, or between ‘‘what we owe people in the form of aid and what we owe them in the way of noninterference.’’ For Foot, the duty of noninter­ ference, or the duty to refrain from injuring another person, is stronger than the duty to give aid, or to help another person. Hence, it is sometimes less wrong to fail to help someone (to fail to fulfill a positive duty) than it is to injure him or her (to fail to fulfill a negative duty). Furthermore, where there is a conflict of duties, it mat­ ters whether this is a conflict between positive duties, between negative duties, or between a positive and a negative duty. In the case in which we have a choice between attending to one injured person or attending to several injured persons, the conflict is between positive duties. Here, it is argued, it is appropriate to weigh the outcomes in terms of the size of the good. The right thing to do is to attend to as many of the injured as possible, even if this means that one person will die. In the case in which we would have to drive over and kill one person in order to rescue several, the conflict is between a negative duty and a positive duty. In this case, the negative duty to refrain from killing is the stronger duty and cannot be overridden by the weaker positive duty no matter what the consequences. Similarly, Thomson suggests that the apparent moral difference between an act and an omission, or specifically between killing and letting die, can be understood in terms of the concept of rights and what it is to have a right to something. In the case of the right to life, it is argued, whereas killing usually infringes that right, letting die does not. Thomson, however, is reluctant to draw a clear distinction between killing and letting die on the grounds that (1) killing does not always infringe the right to life and (2) there is in any case more to morality than rights.

The Rejection of the Doctrine of Acts and Omissions For Harris, our duty as moral agents is to prevent harm. Hence, a bad state of affairs is, prima facie, one in which harm occurs that might not have occurred had those involved behaved differently. However, Harris argues, there are two ways in which we inflict harm on our fellows. . . . One way of inflicting harm on others is to do something which results in their being harmed; the other is to fail to do something the consequence of which is that they are harmed, in short, to fail to prevent harm.

Furthermore, Harris holds that we are just as respon­ sible for the harm that we fail to prevent as we are for the harm that we inflict as a result of something that we do. There is, for Harris, no ‘‘important difference between acts and omissions’’ or between positive and negative actions as he terms them. Thus, Harris rejects Foot’s claim that we have both positive and negative duties, which can be clearly distinguished, the latter having more weight than the former. Instead, to claim that we have a duty not to harm and a duty not to fail to prevent harm is to appeal to the same duty or, as Harris puts it, to invoke both the active and the passive mood of the same duty. It is not so much that consequentialists such as Harris refuse to accept that there can sometimes be a difference between an act and an omission where they appear to have the same consequences. Rather, it is suggested that where there is an apparent difference, this difference can be explained without reference to the doctrine of acts and omissions. One suggestion is that where there is an appar­ ent difference, this is not because a harmful act is intrinsically worse than a harmful omission; rather, the difference is held to lie in the different side effects. That is, it is suggested that once all the consequences of the act are taken into account, it can be seen that the act and the omission do not have identical consequences after all. For example, the difference between killing and letting die might be explained in terms of the feelings of horror that a killing produces, or feelings of guilt, or in terms of the undermining of security. However, if the difference does lie in the different side effects, then it is clear that the acts and omissions doctrine no longer applies: Because side effects are also consequences, then it is no longer the case that the act and the omission have the same outcome overall.

The Size of the Evil The possibility of drawing a clear distinction between an act and an omission, and specifying when there is a morally relevant difference and what that difference is, appears elusive. Perhaps then the consequentialists are justified in their rejection of the doctrine of acts and omissions: We are indeed just as responsible for the harm that we fail to prevent as we are for the harm that we actively bring about, and where there is an apparent difference between an act and an omission, this can be explained in terms of side effects or the broader consequences. The appeal of the doctrine, however, is that it does seem to cohere with or articulate a widely shared intuition. It is attractive precisely because it suggests that morality is not simply a question of ‘the size of the evil.’ It is also a matter of, for example, the moral character of the agent, or moral

20

Acts and Omissions

obligation, or moral rights. That this intuition is widely, although not universally, shared is evident in the debate regarding the distinction between active and passive euthanasia.

Killing and Letting Die: The Case of Euthanasia With some notable exceptions, in most areas of the world, to actively kill a person in order to end his or her suffering (active euthanasia) is illegal. At the same time and other things being equal, it is not similarly illegal to allow a person to die for the same reason (passive euthanasia). When, for example, in the United Kingdom in 1993 the decision was made to allow Anthony Bland, a patient in a persistent vegetative state, to die as a result of the removal of artificial feeding and hydration, Lord Goff of Chievely pointed out that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for exam­ ple by administering a lethal drug, actively to bring his patient’s life to an end.

In light of the previous discussion, it is perhaps not surpris­ ing that the moral relevance of this distinction is less clear, and that the points of contention mirror some of those discussed in relation to the doctrine of acts and omissions. First, there are difficulties in specifying what counts as actively bringing a person’s life to an end as opposed to omitting to prolong that life. Glover’s example of the man who fails to give his father the medicine necessary to keep him alive notwithstanding, we might agree that by with­ holding life-prolonging treatment we allow someone to die rather than actively killing them. However, does the with­ drawal of treatment similarly allow the person to die, or is this in fact an act of killing? The ambiguity here is again reflected in the legal deliberation in the Bland case: [Removing feeding and hydration] is undoubtedly a posi­ tive act, similar to switching off a ventilator in the case of a patient whose life is being sustained by artificial venti­ lation. But in my judgment in neither case should the act be classified as positive.. . . Essentially what is being done is to omit to feed or to ventilate; the removal of the nasogastric tube or the switching off of a ventilator are merely incidents of that omission.

Thus, although the withdrawal of treatment might be con­ strued as an act rather than an omission, it is more commonly regarded in the same way as the withholding of treatment. That is, where the intention is to bring about the patient’s death, and where the reason for doing so is that it is

in the patient’s own interests, it is classed as passive rather than active euthanasia. Perhaps more significant, then, is the question of whether the distinction between the active and the passive euthanasia itself stands up to scrutiny. In an early and subsequently highly influential essay, Rachels argues for a rejection of the doctrine that there is a morally relevant difference between active and passive euthanasia, primarily on consequentialist grounds. First, it is argued that because the purpose of euthanasia is to end suffering, and because passive euthanasia may prolong suffering in a way that active euthanasia does not, active euthanasia might sometimes be more humane than pas­ sive euthanasia. In other words, when judged in terms of the respective consequences, active euthanasia sometimes produces a better state of affairs than passive euthanasia – that is, one in which there is less suffering. This argument is backed up with a rejection of the doctrine of acts and omissions, specifically the doctrine that there is a morally relevant difference between killing and letting die. Using the hypothetical example of Smith and Jones outlined previously, Rachels suggests that where the intention and the consequences are the same, there are no grounds for judging a case of killing and a case of letting die differently. Whereas in the case of Smith and Jones each is considered equally morally reprehensible, in the case of active and passive euthanasia, if the latter is sometimes the right course of action then, other things being equal, so too is active euthanasia. Indeed, as we have just seen, other things may not be equal and active euthanasia might sometimes be the preferable course of action. Finally, Rachels maintains that there ‘‘is a kind of action that one may perform by way of not performing certain other actions’’ and that ‘letting die’ in the case of passive eutha­ nasia is one such action. Here, we might say, then, that even if there is a distinction between an act and an omis­ sion, or between doing and allowing, passive euthanasia is, in Foot’s terms, commission rather than omission. Of course, it is possible to reject the acts and omissions doctrine on consequentialist grounds yet still argue for a morally relevant difference between active and passive euthanasia and for maintaining the distinction in law and in ethics. That is, it might be that the consequences are in fact differently weighted. Thus, where Rachels argues that active euthanasia might sometimes have better or at least less bad consequences than passive euthanasia, it might be that once all of the consequences of active euthanasia have been taken into account – for example, the negative effects on the medical staff charged with killing the patient, insecurity among hospital patients (particularly the elderly), a general loosening of the con­ straints against killing, and so on – this turns out not to be the case after all. Sometimes, this is put in the form of a ‘slippery slope’ argument. One ethicist arguing for the retention of the distinction between killing and letting die and hence between active

Acts and Omissions 21

and passive euthanasia on nonconsequentialist grounds is Hugh McLachlan. Part of McLachlan’s argument rests on the distinction between negative and positive duties: Although we have a duty not to kill everyone, we do not have a similar duty to try to prevent everyone from dying. Likewise, although there is a corresponding right not to be killed, there is no such right to be kept alive such that we are required to supply an individual with whatever he or she needs to be kept alive. McLachlan argues further that in the case of passive euthanasia, it is not in fact the with­ holding or withdrawal of treatment that causes the patient’s death. Rather, it is caused by the underlying illness. Here, there are echoes of Foot’s notion of ‘forbearing to prevent’: The sequence of events leading to the patient’s death is already underway, and by not treating the patient we are failing to intervene in that sequence. It is not that McLachlan holds that killing is always wrong, whereas letting die is not. Instead, he suggests that although they might in some circumstances both be right or wrong, they will be right or wrong for different reasons, on the grounds of different duties that ‘‘different people can possess differently with regard to different people.’’ What those different duties are and how they attach to different people in different circumstances require further specification, which can perhaps only be supplied by working out the details in a particular context. For example, a failure on the part of a health care professional to prevent a patient from dying might be morally repre­ hensible in a way in which a similar failure on the part of a layperson would not. Of course, health care ethics is not the only context in which the doctrine of acts and omis­ sions might be applied or rejected.

See also: Consequentialism and Deontology; Euthanasia (Physician-Assisted Suicide); Responsibility; Theories of Ethics, Overview; Utilitarianism; Virtue Ethics.

Further Reading Bennett J (1995) The Act Itself. Oxford: Clarendon. Den Hartogh G (2001) The slippery slope argument. In: Kuhse H and Singer P (eds.) A Companion to Bioethics. Oxford: Blackwell. Foot P (1967) The problem of abortion and the doctrine of double effect. Oxford Review 5: 5–15. Foot P (1985) Morality, action and outcome. In: Honderich T (ed.)

Morality and Objectivity. London: Routledge & Kegan Paul.

Garrard E and Wilkinson S (2005) Passive euthanasia. Journal of

Medical Ethics 31: 64–68. Glover J (1977) Causing Death and Saving Lives. Harmondsworth, UK: Penguin. Hall JC (1989) Acts and omissions. Philosophical Quarterly 39(157): 399–408. Harris J (1980) Violence and Responsibility. London: Routledge & Kegan Paul. Harris J (1985) The Value of Life: An Introduction to Medical Ethics. London: Routledge. McLachlan HV (2007) The ethics of killing and letting die: Active and passive euthanasia. Journal of Medical Ethics 34: 636–638. Nesbitt W (1993) Euthanasia and the distinction between acts and omissions. Journal of Applied Philosophy 10(2): 253–255. Quinn WS (1989) Actions, intentions and consequences: The doctrine of doing and allowing. Philosophical Review 98(3): 287–312. Rachels J (1986) The End of Life: Euthanasia and Morality. Oxford: Oxford University Press. Rachels J (2006) Active and passive euthanasia. In: Kuhse H and

Singer P (eds.) Bioethics: An Anthology. Oxford: Blackwell.

Thomson JJ (1993) Rights, Restitution and Risk. Cambridge, MA:

Harvard University Press. Wainwright P and Gallagher A (2007) Ethical aspects of withdrawing and withholding treatment. Nursing Standard 21(33): 46–50.

Relevant Websites Conclusion Given that the standing of the doctrine of acts and omis­ sions is so vigorously contested, it is hardly surprising that its application to practical moral problems is less than straightforward. What an analysis of the debate can do, however, is help to draw out our sometimes competing intuitions regarding the relationship between moral vir­ tue and character, moral duties, obligations and rights, and the consequences of our actions as well as our omis­ sions. At the same time, paying close attention to real-life moral problems such as euthanasia provides a context in which to ground the debate and to tease out the implica­ tions of the claim that, sometimes, to fail to prevent a state of affairs from occurring is morally less bad than actively to bring that state of affairs about.

http://www.bbc.co.uk/ethics/euthanasia – British Broadcasting Corporation; Ethics Guide, Euthanasia. http://www.ethics-network.org.uk/ethical-issues/end-of-life – UK Clinical Ethics Network; End of Life Decisions.

Biographical Sketch Susanne Gibson has taught philosophy and ethics at Cardiff University and the University of Cumbria (formerly St. Martin’s College). She was awarded her Ph.D. from Cardiff University in 1998 for a thesis that focused on reproductive ethics and the ‘right to reproduce.’ Since then, she has continued to publish on reproductive ethics, particularly the ethics of abortion and the moral status of the human embryo and fetus. She has also written on professional ethics and the ethics of counseling and psychotherapy. Susanne is currently working as a researcher for a mental health charity in London.

Addiction B Capps, National University of Singapore, Singapore W Hall, The University of Queensland, Brisbane, QLD, Australia A Carter, The University of Queensland, Brisbane, QLD, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Addiction The repetitive engagement in an activity, such as drug use, gambling, or eating, despite the negative consequences that it causes. Addiction usually involves craving for the addictive activity and an impaired ability to control use, features sometimes referred to as psychological dependence. Addiction also often involves the development of tolerance toward the drug of abuse and symptoms of withdrawal upon cessation of use, referred to as physical dependence. Autonomy The capacity for self-government and selfrealization. Agents are autonomous if their actions are truly their own. In this respect, agency is a necessary and sufficient feature of autonomy. Coercion The use of compulsion to encourage someone to do something that they would rather not do; this is often as a set of constrained choices. The kind of influence used may vary depending on the amount of choice that an individual has. Mild forms of coercion include pressure from friends and family; the strongest forms involve detaining individuals in treatment against their wishes. Craving An intense and seemingly irresistible desire to experience the effects of drugs. Drug cravings often lead to a relapse to drug use, despite being abstinent from use for long periods of time.

Introduction Addiction is a behavior characterized by the individual exhibiting a loss of control over a specific activity. It may be caused by a number of triggers or experiences, one of which is exposure to certain psychoactive substances, commonly known as drugs, and on which this entry will focus. There is considerable debate as to whether indivi­ duals can become addicted to some behaviors, such as gambling, food, and sex. This is a hotly debated topic at present and beyond the scope of this survey. Drug addic­ tion is a process characterized by (1) a recurrent failure to control one’s use of a psychoactive substance and (2) continuation of such use despite significant negative con­ sequences and the desire to stop.

22

Freedom (liberty) The belief that everyone is entitled to make choices. The corollary of this is that persons are to be held responsible for the consequences of their actions. Freedom is closely related to the notion of autonomy and is often meant as synonymous with ‘liberty.’ Relapse The resumption of regular drug use after a period of abstinence, often in response to drug-related cues or stress. Relapse is common after addicted persons have achieved abstinence. Reward Pathway A central circuit in the brain that reinforces behavior when activated. Most drugs that activate this reward pathway are addictive, and their effects are usually experienced as rewarding and pleasurable. Tolerance A physiological state in which an individual is less responsive to the effect of a drug, leading to the use of higher doses, probably as the result of neurochemical changes within the brain. Withdrawal Symptoms that develop when an individual abruptly stops or abstains from drug use. The symptoms depend on the drug of addiction. Some drugs have very mild or no withdrawal symptoms (e.g., cocaine), while others cause intense discomfort (e.g., alcohol, heroin).

This is a survey of current responses to drug addiction and the ethical issues that it raises. Societies’ response to the abuse of psychoactive substances can be complex, dependent on sociopolitical agendas and our understand­ ing of drug addiction. We begin by defining drug addiction and two prominent causal models of addiction that have dominated recent debates: the choice model (or skeptical or moral model) and medical model (or brain disease model) of addiction. We then discuss the contemporary regulatory responses to addiction that each model promotes. The typical approach, as per the choice model, has been to characterize addiction as an excuse for drug misuse that should be punished and deterred. Neuroscience is chal­ lenging the orthodox punitive response to drug addiction.

Addiction 23

In the final section, we discuss a number of novel developments emerging from neuroscience and genetic research to deal with addiction, and the ethical challenges their use raises. These include neurocognitive and genetic tests to personalize addiction treatment, genetic-based prevention of addiction using drug vaccines and implants, and novel pharmacological technologies to target cogni­ tive deficits associated with addiction. The availability of biotechnological interventions to prevent, counter, or treat drug addiction will challenge politicolegal responses to addiction. The reasoning behind such regulatory approaches is often ethically controversial, and we give an overview of this debate. The development and use of psychoactive drugs brings both benefits and costs: while new drugs to treat mental illness or neurodegenerative disease are to be welcomed, there is a compelling need to create effective and justifiable policies to reduce the burden of harms associated with drug misuse, addiction, and drug policy. We conclude with some observations for future policy direction.

Defining Addiction Drugs can refer to those that are used recreationally and typically abused, both licit and illicit, medically pre­ scribed drugs that are intended for therapeutic use, and the growing use of these medicines for lifestyle or enhancement reasons. This essay will focus primarily on the former. We discuss the challenges raised by the latter for drug policy and regulation at the end of the essay. Drug addiction is a condition (‘Condition’ here is meant to indicate a notable pattern of behaviors that commonly co-occur, are statistically uncommon and are associated with social and personal impairment. We intentionally avoid using terms such as ‘disorder’ or ‘disease’ as we do not wish to endorse a particular model of addiction.) that is triggered by the chronic use of psychoactive substances that act upon the brain’s reward system (the mesolimbic pathway) and produce changes in behavior, cognition, and mood. The degree to which continued drug use is voluntary and a matter of choice, or symptomatic of a disease state, is contentious. Dependence and the Cycle of Addiction Addiction is characterized by intense cravings for the addictive drug that produce a seemingly irresistible desire to experience their effects and an impaired ability to control use in the face of serious negative social and legal consequences, despite a wish to stop. These aspects of addiction are referred to as psychological dependence. Addiction also often involves the development of toler­ ance toward the drug of abuse, and symptomatic of

withdrawal upon cessation of use. This is referred to as physical dependence. Abrupt cessation of drug use leads to a period of withdrawal and the onset of intense drug cravings, which often triggers a relapse to drug use. This pattern of addictive drug use is referred to as the cycle of addiction. These symptoms may be reduced or prevented if an individual is given appropriate support and medical treatment during drug withdrawal and after becoming abstinent. Misuse, Abuse, and Harm Illicit drugs are widely regarded as harmful to the user and to others around them (e.g., family and community). They are associated with social problems and crime, as well as international instability, and contribute substan­ tially to the global burden of disease. The misuse of drugs and the comorbid consequences provide one justification for paternalistic government intervention that prohibits the use of some drugs. Misuse of a drug can have two meanings: (1) misuse beyond the legal permission to do so and (2) misuse of medically prescribed medicines. The social costs of drug addiction can be categorized into (1) the criminal activity some drug abusers engage in (e.g., violence committed while intoxicated, theft in order to obtain drugs, activities linked to the illicit production and supply of drugs, and the criminal justice costs of processing offenders); (2) direct health costs of chronic drug use and acute intoxicated harm; and (3) social and economic harms associated with drug addiction (e.g., unemployment, family breakdown) that increase costs to welfare systems. The Choice Model of Addiction Laws that criminalize some forms of drug use are pre­ mised by the belief that individuals are responsible for their drug use. Those that maintain this view are often skeptical of the growing evidence for a neurobiological etiology of addiction (see section ‘The Medical Model of Addiction’). On this view, the moral choice to use poten­ tially addictive drugs makes one culpable for any harmful consequences incurred to oneself or others: addiction is seen an excuse for socially unacceptable behavior that disregards the personal and legal consequences of drug misuse. The wrongfulness of drug misuse arises from the harm that results from criminal behavior or society deal­ ing with individuals’ destructive and felonious behavior arising from avoidable choices. This model drives policies that punish individuals for their harmful behavior and places little emphasis on treatment of a putative disease state. The choice model makes sense of one of the key features of addictive behavior: drug use is initially a voluntary choice that develops into an addiction in only

24

Addiction

a minority of those who use even highly addictive drugs such as heroin and cocaine. Proponents of this view argue that even among the minority of drug users who do become addicted, most succeed in stopping their use without assistance. Furthermore, many of their actions are under the control of their will, such as the purchase, possession and concealment, and use of the drug. Drug misuse is a choice they have made, and continue to make, and therefore can be influenced by threats of imprison­ ment as well as corporal and capital punishment. We discuss the policy responses motivated by the choice model of addiction in the section ‘An Ethical Response to Addiction’. Inconsistency in the choice model

The choice model of addiction is inconsistent with a num­ ber of reliable empirical observations about drug use and addictive behavior. First, the size of the significant minority of drug users who become addicted depends on the way that the drug is consumed and its pharmacological actions (e.g., its rapidity of onset and duration of effect): shortacting opioids such as heroin that are injected are more likely to result in addiction than drugs such as codeine that are ingested. Second, there is an identifiable subset of individuals who are more likely to develop an addiction. This includes people who have more contact with drugs or peers who use drugs, who use drugs at an earlier age, who are from socially disadvantaged backgrounds or perform poorly in school, who have a family history of addictive behavior, or suffer from other mental disorders. Third, the use of drugs in the face of often serious negative health and social consequences, and in the absence of any pleasure derived from their use, suggests that addiction is more than mere willful bad behavior. Under the choice model, little thought is given to the social context of effective or con­ strained choices, caused by, for example, poverty, abuse, and neglect. Such environments may increase susceptibil­ ity to addiction, for example, through increased availability, exposure, and social vulnerability to addictive drugs. The Medical Model of Addiction The fact that punitive policies have been largely unsuc­ cessful in reducing addiction suggests that alternative explanations need to consider the effect that repeated drug use has on an individual’s ability to control their drug use. Neuroscience and genetic research of addiction is challenging traditional notions of addiction as a volun­ tary choice. Research has shown that the chronic, selfadministration of drugs to animals produces enduring changes in the brain’s reward pathway that make choices not to use drugs difficult and may leave addicted indivi­ duals vulnerable to relapse after abstinence has been achieved. Alan Leshner argued that addiction is in fact a

chronic and relapsing brain disease in which repeated use of addictive substances hijacks the brain’s natural reward centers. According to this view, chronic drug use flicks a biochemical switch that renders the person’s drug use beyond their control. Research suggests that there is a substantial genetic contribution to addiction (estimates range between 40 and 60%), although most of the susceptibility genes identified represent only a modest association to addiction vulner­ ability. An individual’s inherited genetic make-up can influence addiction risk in a number of ways. Genes may affect the way in which individuals respond to parti­ cular substances (e.g., drug metabolism, absorption, and excretion, and activity or sensitivity to drugs); behavioral traits that influence an individual’s willingness to try drugs (e.g., risk-taking behavior, impulsivity, novelty seeking); or the likelihood of developing problem use or dependence if they use drugs (e.g., how rewarding they find the effects of drugs). Significant environmental events, such as adolescent physical or sexual abuse, can interact with genetic sus­ ceptibility to increase the risk of developing psychiatric disorders. Recent research has shown how environmental factors, such as stress and addictive drug use can have long-term changes on genetic expression that may explain some of the persistence of addiction long after abstinence has been achieved. The evidence of genetic vulnerability to addiction and the persistent biochemical changes caused by addictive drugs are used to strengthen the view that addiction is a chronic, relapsing brain disease. In the same way that cardiovascular disease is a result of damaged or dysfunc­ tional heart tissue, the medical model of addiction holds that addiction is the result of drug-induced changes in affected neural tissues. Craving and withdrawal are more or less persistent, involuntary, and unwanted by the indi­ vidual; these are arguably characteristic of many other diseases caused by the choices we make (such as type II diabetes and exposure to asbestos). According to the med­ ical model, although the drug use is required to trigger addictive behavior, there is a complex interplay between the biochemical activity of the drug, the context of use and environment, and a genetic vulnerability that makes a simple choice model incapable of explaining addiction. Resistance to the medical model

There are a number of possible unwelcome consequences of the medical model of addiction that indicate the need for caution. For example, some argue that the medical model undermines the criminal justice system, because it removes any culpability or moral responsibility for the addicted person’s actions. It is argued that although drug users have contravened the law – including taking an illicit drug or engaging in an associated criminal behavior – addiction absolves them of responsibility for

Addiction 25

their actions. If individuals with an addiction are consid­ ered to be acting involuntarily, then it will become difficult for them to be subject to criminal sanctions, such as traffic offences while under the influence of drugs. The law, unwilling to accept this consequence, maintains that responsibility for a crime remains with the drug user regardless of their comparative competency. The medical model may also lead to an underestima­ tion of the value of sociolegal policies in reducing drug use and drug-related harm. Neurobiological accounts arguably make the scientific case for a causal account more compelling and persuasive than appeals to social circumstances. By focusing on addiction as a categorical brain disease, however, one runs the risk of ignoring the detrimental effects of drug use, intoxication, and criminal activities, and downgrading the social acceptance of jus­ tified redress (such as imprisonment as a form of punishment), and the value of deterrence measures. Deterministic explanations of addiction may also undermine nonmedical initiatives that redress social dis­ advantage that increases drug misuse, such as targeted education, urban renewal projects, and welfare support in deprived areas. A medical approach that addresses individual needs may divert attention away from commu­ nities in which poverty and social deprivation fosters drug use. It may also downgrade public health measures that deal with the wider aspects of protecting health (e.g., taxation of harmful commodities, barriers to access, preventive interventions). For example, a focus on genetic contributions to addiction may distract attention from the risks of acute intoxication, such as accidents and violence. Such deterministic arguments could negate the role of – and appropriate responses to – the social factors that may have a role in drug use in individuals, such as socioeco­ nomic background or early adolescent exposure to parental drug use. Brain disease explanations of addiction may also be seen to warrant heroic and risky interventions in the brain function of addicted individuals, such as ultrarapid opiate detoxification or the neurosurgical treatment of heroin addiction. It may also increase the use of coercive forms of treatment for addicted persons whose capacity to make free and informed choices is said to be seriously impaired by a brain disease (see section ‘Coercion in Addictive Behavior’).

Partisan Responses to Drug Misuse Regulation is a focused endeavor to control or alter the behavior of others according to broadly identified public goals. Effective government thereby balances the agent’s autonomy, the correlative and contextual bounds of com­ munity, and the legal comprehension of public interests to generate authoritative control and rules of social and

felonious responsibility. Within any community in which a democratic legal jurisdiction is established, legal ordering restricts and coerces our legitimate choices every day through laws and public interest defences. All of these laws are set according to the prevailing legal thesis, whether this is a sense of human rights or another doctrine. Behind the political machinery of these laws and regulations one can find many underlying attitudes that depend upon how stakeholders understand drug use and addictive behavior. Thus, the goals of drug and drug addiction policy are greatly informed by the model of addiction that takes current precedence. The choice model underscores notions of ethically driven self-governance. It relies on addicts being autonomous throughout their experience of drug use (except while intoxicated or in acute withdrawal) and therefore responsible for, and capable of, modifying all of their actions in response to external (e.g., force, coercion) and internal cues (e.g., guilt, shame). Drug misuse, in this view, is a failure to govern ourselves according to the legal system and hence a weakness of the will. By making the drug user a morally responsible agent, that person is accountable for their morally significant conduct, and therefore deserving of moral praise or blame, and receptive to reward or punishment. The medical model of addiction, by contrast, empha­ sizes the loss of decision-making capacity. In order to be able to express one’s autonomy, one must also be able to initiate any procedural transactions (to authorize or signal what is, or is not, to be done to oneself), and one cannot initiate this without exercising one’s power to do so. Thus, addiction and compulsive behavior, if it compromises one’s agency by producing neurobiological changes, make such decisions difficult in spite of the legal conse­ quences. Addicted persons appear to deliberately act in most cases, but they are motivated to do so by a compul­ sive, controlling sort of desire. How far a compulsive desire affects considered judgment is contestable (although at minimum, the result is impaired will). An extreme view of the medical model suggests that addicts lack free will as a consequence of drug-induced changes in brain function and cognition. On this view, addicted individuals lack any decision-making capacity and there­ fore are not culpable for their actions. There are good reasons to be skeptical of such an extreme representation of neuroscience research of addiction. The current legal approach strongly reflects the choice model of addition: it tends to take a principled view in providing regulatory answers, thus using prescriptive maxims, enforced by the rule of law, to control substance use and abuse. The use of licit substances such as alcohol and tobacco is controlled via licensing and authorization. The law attempts to influence patterns of use through prudent legislative measures encompassing economic and

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social regulatory modes. This applies to both medicinal and recreational drug use. The approach to illicit sub­ stances, however, is to criminalize the producers and suppliers, and punish those involved in the procurement and use of such substances. These punitive measures aim to dissuade people from using illegal or misusing regu­ lated substances and punish users, and those involved in the illegal production or distribution of such substances. The worldwide dominance of these views of drug use and extensive funding to enforce them has led to a compara­ tive lack of investment in medical research into addiction or the development of interventions to more effectively treat it. The choice model is also consistent with libertarian ideas that value individual freedoms, including the free­ dom of adults to use drugs, and therefore drug deregulation. Libertarians argue that drug use is a legit­ imate choice if based on a rational evaluation of the consequences and providing that no one else is harmed. According to libertarians, drug regulation via punitive policies creates harm by mandating coercive measures, paternalistically restricting the legitimate choices of rational agents, criminalizing their legitimate choices, and creating a black market in drug sale and production that leads to poor-quality drugs, criminality, and violence. Despite the broad use of punitive policies, efforts have not proven wholly effective in reducing drug use and addiction. Part of this is due to unclear government objectives and confused goals, and a failure to assess whether current policies are having their desired effects. Libertarians argue that such policies contribute to the social cost of addiction, for example, by leading to the imprisonment and criminalization of many drug users who typically return to drug use and reoffend upon release. For some critics, the ethical consequences of these policies far exceed the harms caused by the drug problem. If so, punitive policies lead to unjustified dis­ crimination and inappropriate restriction or derogation of the liberal interests of those who willfully use psychoac­ tive substances. Proponents of the medical model argue that neurobio­ logical research should prompt societies to change the way in which they think about addiction, and the social policies that they adopt to deal with it. (Libertarians may also latch onto such explanations to argue that users can be better informed of the consequences of their drug use, and thereby negate what they see as paternalistic author­ ity.) For example, the medical model is often used to advocate novel treatments, many of which are based on advances in brain science. The medical model of addic­ tion is also used to promote social support measures to reduce stigmatization and break the addiction cycle. Often they focus on the rights of individuals to be treated fairly and equitably, and measures to help them rebuild their lives as responsible citizens, rather than solely

punish them for their morally deficient choices. In this way, many addiction neurobiologists hope that their work will reduce community skepticism about the reality of addiction as a medical condition and eventually supplant disproportionate policies of deterrence and punishment. The medical model further supports the strengthening of a public health role for authoritative government to remove the environmental features that facilitate drug exposure and use. The Future of Drug Regulation There are significant questions about the legitimacy of current drug policies that appear to prohibit the use of some psychoactive substances on the basis of limited evidence of the relative harms, while continuing to allow the use of, for example, alcohol and tobacco that produce much larger social and economic costs. Such classification is often the relic of history or cultural parti­ ality to some drugs, or the influence of partisan forces (e.g., liquor and tobacco industries). It is expected that the increased understanding of the neurobiology of addiction (which we discuss in the final section ‘An Ethical Response to Addiction’) will expose the capriciousness and incoherence of some current drug policies. For example, novel methods of detection (e.g., neuroimaging) and treatment (e.g., vaccines) raise impor­ tant questions with respect to what present policies can and cannot achieve, including: What can brain scans tell us about intentions; or can vaccines be effectively deployed in a large at-risk population? Such develop­ ments promise both personal medicine as a frontline deployment and further societally orientated measures in tackling drug-related harms. The increasing influence of a global economy on the development, manufacture, and supply of drugs by online and small-scale garage agents will make simple ethical and public policy choices difficult. Established approaches to regulation and control will be challenged by the shift from traditional sources of drug research and development, such as visible biotech companies in the case of medicines or large-scale and targetable illicit drug cartels, to invisible manufacturers and suppliers of drugs via the expansion of global markets facilitated by the Internet. These novel and more invisible supply net­ works may circumvent the long-established aggressive governmental measures such as border control and crop destruction. Policies based on the harmfulness of some drugs could potentially be undermined by the development of safer and less addictive substances. Paternalistic strategies are unlikely to be welcomed by informed, educated, and affluent users of cognitive enhancers that do not fit neatly into the categories of illicit, recreational, or therapeutic drug use. Regulators are already being challenged to

Addiction 27

distinguish between products sold over the Internet as food supplements, alternative medicines, cognitive enhancers, and even legal and supposedly safer alterna­ tives to illicit drugs. Existing drug-control policies will need to put in place a regulatory framework for the evaluation of novel drugs and new patterns of addiction. To take these policies forward, it is imperative that communities critically assess whether current regulation is effective, legitimate, and optimal. The creation of a coherent drug regulation system will require more effective integration of scientific research on psychoactive drug use. The ethical and legal justifications for traditional regulatory theories need to be better informed by our understanding of the neurochemical actions of drugs and the processes of addiction, including the role of genetic and environmental factors.

An Ethical Response to Addiction An increased understanding of the neurobiological changes that occur during addiction has led to the devel­ opment of novel interventions and treatments of addiction, and preventative measures for those perceived to be at greater risk. In this section, we raise some of the issues that ought to be considered as part of an appro­ priate ethicolegal response to the increased role of neurobiological research in the treatment of addiction. Treatment, Prevention, and Detection Current treatments aimed at stopping the craving felt by addicts or to prevent relapse are only modestly effective. Researchers are developing a range of novel addiction treatments that target specific aspects of the cycle of addiction, such as treatments to: prevent the onset of withdrawal symptoms and drug cravings, reduce the severity of these symptoms; protect against or reduce the length and magnitude of relapses to drug use; facil­ itate greater control over drug use; or enable someone to unlearn habitual drug use. Researchers are also develop­ ing long-acting treatments that overcome poor compliance with traditional pharmacological treatments, including drug vaccines and sustained-release drug implants, which prevent addictive drugs from entering the brain and producing their rewarding effects. These treatments are often developed as a prophylaxis against relapse to drug use, although they are increasingly advo­ cated for addiction prevention. Diagnostic technologies, such as genetic screening, brain imaging and cognitive testing may enable better matching of addicted indivi­ duals to current treatments, and more controversially, prevent addiction in those identified as highly vulnerable to developing it. Advances in pharmacogenetics have

identified possible genes and gene products that are implicated in addiction, tolerance, sensitization, depen­ dence, craving, and relapse. These addiction genes may represent a higher probability of developing an addiction and indicate how large a dose, or doses, of a drug may cause addiction in the first place. Technology and the Preclusion of Addictive Behavior The ways in which these novel technologies are used will be determined by the predominating ethical views in a given jurisdiction. One area of interest is the deployment of preclusion measures either coercively or to enable individuals to make better-informed choices. For exam­ ple, the choice model encourages punitive preclusionary strategies to penalize and coerce individuals. Any tech­ nologies that improve detection, such as neuroimaging or genetic testing, could strengthen the ambit of incapacita­ tion and punishment measures. Advocates of the medical model suggest that treatment should be prioritized and that breaking the addiction cycle is a more effective use of the science. This raises its own ethical concerns, because the addicted individual has to take on the role of the patient, which removes them from the private world of drug use. This may have serious effects on privacy and future opportunities, such as access to employment and health insurance. Emerging Cognitive Enhancers and Lifestyle Drugs There may also be interest in developing novel drugs that enhance cognition, emotion or arousal, or safer deriva­ tives of existing drugs by engineering out the addictive or toxic effects. This could have a number of impacts. For example, new or safer drugs, or effective quick-fix treat­ ments might lead to different patterns or demographics of use. One might see a moderation of the attractiveness of punitive measures, but it may also cause unforeseen social and economic harms or change the criminal patterns normally associated with drug use. Current laws and regulations will have to evolve if they are to deal with any such neurobiological developments. Coercion in Addictive Behavior Under the choice model, drug users can be coerced into treatment with punitive measures for failure to comply. There are different forms of coerced treatment for drug addiction that vary in the amount of force used and therefore the degree to which they contravene an indi­ vidual’s liberty, freedom, and autonomy. In addiction treatment, coercion usually refers to legal forms of coer­ cion that involve the use of the state’s power to force

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individuals to undergo treatment, either in response to conviction for a drug-related crime (e.g., as in drug courts) or as a form of mandated or compulsory treat­ ment for their addiction. There is no challenge to an individual’s autonomy if treatment is offered to a person with capacity, and with­ out duress, or threat of reprisal, should they refuse the offer. If treatment is also offered within a punitive setting, such as a court, it may be considered as a constrained choice that is justified by the nature of judicial responses to illegal drug use or drug-related crime. Whether the threat of penal sanctions (which is normally seen as an acceptable form of social control) should be used to force treatment entry is a controversial issue. The involvement of the medical profession in state-sanctioned penal mea­ sures has been a long-standing human rights issue. In respect to court-mandated treatment, it is important that careful consideration is given to the public interests of such measures. Coercion may also be justified by medical models of addiction that suggest that autonomy is impaired rather than absent. Treatment may be seen as a viable option to offer an addicted person when competent. Duress is less relevant when individuals are seen to lack decisionmaking capacity. If the individual lacks decision-making capacity, then offering anything reflects a disingenuous view of their autonomy. There is a risk in conflating punitive goals and a lack of competency. It is not possible to hold an individual responsible for their offences while at the same time maintaining that they lack autonomy and therefore can be subjected to nonconsensual medical treatment. If the individual is incompetent, then it is unlikely that they can either stand trial or consent to treatment. Where capacity is lacking, notions of best interests may be used to justify interventions for the good of the patient; but once competence has returned, a nonconsensual approach is no longer justified. Drug Tests and Genetic Screening Drug testing and screening of individuals would be one area where coercive preclusionary tactics may be used. Their effectiveness is limited within medical models of addiction because duress requires that there is a coercible will that can be influenced. However, if drug use is seen as a choice, the risk of punishment is one way in which one may be deterred from using drugs. The issue, however, is under what conditions drug testing is justified. It may be justified in testing individuals who risk harming others by drug use, but it is far less clear whether workplace drug testing is always justified. Often, the aim of this type of drug testing is to reduce employer costs, such as limiting acceptable – rather than self-inflicted – sick leave and increasing productivity by reducing the costs incurred through health insurance. However, some drug use may

be targeted simply because it is illegal rather than because it impairs productivity, thereby justifying disciplinary measures. Some argue that activities that do not impinge upon one’s ability to do a job ought not to be monitored because such actions infringe liberty. It is possible that drug testing could be extended to schools, universities, and other places where fair test conditions are paramount; this may be a notable development if the use of cognitive enhancers becomes widespread. Screening for the presence of a drug is also a way to deter use. Once potential or suspected users are identi­ fied, they can be removed from an environment (e.g., the military, workplace, or high school), in order to minimize prospective harm or discourage others from using. Direct interventions can also be used to preclude use (vaccines are an example of the latter, which are discussed in the section, ‘The preventative use of a vaccine’ below). Screening can also label individuals as deviant and hence risks discrimination and stigmatization. Many argue that screening of any kind is only justified when there is an effective treatment, since the information gleaned has no therapeutic use to the individual tested unless they can be effectively treated. Screening may be beneficial if we can, for example, identify genes that are strongly associated with addiction vulnerability. Some have argued that specific populations at risk, such as those with a family history of drug use, could be genetically tested and those at a higher risk could be given preventative behavioral and pharmacolo­ gical interventions to reduce the likelihood of their using drugs. Such analysis may be expanded to include comor­ bid mental disorders that are triggered or exacerbated by chronic drug use, on the grounds that this may deter some prospective users at high risk of addiction from drug experimentation. But it is problematic to use genetic determinants as addiction indicators. For example, it makes little sense to talk of an addiction gene if an individual is never exposed to a potentially addictive substance. A comorbid condi­ tion, such as cannabis-induced psychosis, cannot be characterized as genetically determined in any tangible sense if the individual never comes in contact with mar­ ijuana. Furthermore, susceptibility alleles are likely to only predict a very modest increased risk that is difficult to quantify in any meaningful way. It is also possible that persons told that they have a low genetic susceptibility to addiction may be encouraged to try drugs. Genetic risk information could also encourage fatalistic attitudes if individuals concluded that they were unable to give up a drug because of their genes. The Preventative Use of a Vaccine A vaccine against an addictive drug could be deployed in two ways that potentially raise ethical concerns: to

Addiction 29

coercively vaccinate persistent drug users and to vacci­ nate potential users. Vaccines currently being tested only confer immunity for 2–3 months, after which the antibo­ dies rapidly disappear. There are questions with respect to the effectiveness of a vaccine and the level of intrusion necessary for a vaccine program to achieve the desired goals (e.g., repeated vaccinations through adolescence or sustained release implants for offenders). These different uses will have different implications for the kinds of ethical choices that society has to make. Some individuals may recognize that they are likely to relapse to drug use and choose to receive a drug vaccine in order to protect against the effects of relapse. A vaccine against a drug of addiction may reduce the length and severity of any relapse to drug use by blocking the rein­ forcing effects of the addictive drug. This effect may be counter-productive if individuals attempt to overcome this effect by consuming greater quantities of a drug, thereby increasing physical harm (e.g., cardiovascular dis­ ease), or worse, leading to overdose. Furthermore, this kind of vaccine does not give life-long protection and therefore would require repeated administration that may become a costly burden to some. It also risks repeat­ edly exposing past addictions and reinforcing negative attitudes, rather than allowing individuals to move on. Coerced vaccination for certain populations of depen­ dent drug users, such as pregnant women or mothers of young children, may also prove attractive. Such coercive treatment may also drive such groups away from seeking perinatal care. Cooperation on the part of the drug user is required for vaccines to be effective. There are few con­ cerns about vaccinating a genuinely consenting addicted individual to alter the progress of their addiction or pre­ vent relapse after discontinued drug use. The risk is that those without an addiction, vaccinated because of a pre­ disposition to addiction, as well as current and recovering addicted persons, might be grouped together because of the presence of the vaccine antibodies. The risk of stig­ matization should be weighed against the potential benefits from treatment.

Concluding Remarks Individuals with an addiction continue to use alcohol, tobacco, and other drugs in ways that cause significant physical, psychological, or social harm to themselves or others. The distinction between recreational use of illicit and licit drugs and the response to each has significant sociopolitical implications, including measures such as taxation, recreational prohibitions, and demarcated and authorized medical use.

Over the past several decades, animal and more recently human research has increasingly suggested that human addictive behaviors have a genetic and neurobiological basis. These discoveries raise the potential for providing new and more effective medical treatments of addiction. Many addiction neuroscience researchers also express the hope that an increased understanding of the neuro­ biological basis of addiction will lead to social policies that recognize addiction as a neuropsychiatric condition that should be treated therapeutically. This optimistic view needs to be balanced by anticipation of potential misuses and misrepresentations of this research that may impede the realization of the potential for neuroscience and genetic research to reduce the harm associated with drug use and addiction. See also: Drugs, Moral and Legal Issues; Gambling in the United States; Neuroethics/Brain Imaging.

Further Reading Ashcroft R, Campbell A, and Capps B (2007) Ethical aspects of developments in neuroscience and drug addiction. In: Nutt D, Robbins T, Stimson G, Ince M, and Jackson A (eds.), Drugs and the Future: Brain Science, Addiction and Society, pp. 439–466. London: Academic Press. Carter A, Capps B, and Hall W (eds.) (2009) Addiction Neurobiology: Ethical and Social Implications. Lisbon: European Monitoring Centre for Drugs and Drug Addiction. http://www.emcdda.europa.eu/ publications/monographs/neurobiology (accessed June 2010). Corrado ML (1999) Addiction and responsibility: An introduction. Law and Philosophy 18(6): 579–588. Dackis C and O’Brien C (2005) Neurobiology of addiction: Treatment and public policy ramifications. Nature Neuroscience 8(11): 1431–1436. Davies JB (1997) The Myth of Addiction, 2nd edn. Amsterdam: Harwood Academic Publishers. Hall W (2006) Stereotactic neurosurgical treatment of addiction: Minimising the chances of another ‘great and desperate cure’. Addiction 101: 1–3. Hall W, Capps B, and Carter A (2008) The use of depot naltrexone under legal coercion: The case for caution. Addiction 103: 1922–1924. Hall W, Gartner CE, and Carter A (2008) The genetics of nicotine addiction liability: Ethical and social policy implications. Addiction 103(3): 350–359. Hall W and Carter A (2007) Drug addiction, society and ethics. In: Ashcroft R, Dawson A, Draper H, and McMillan J (eds.), Principles of Health Care Ethics, pp. 639–646. Hoboken, NJ: John Wiley and Sons. Husak DN (2004) The moral relevance of addiction. Substance Use and Misuse 39(3): 399–436. Kleinig J (2004) Ethical issues in substance use intervention. Substance Use and Misuse 39(3): 369–398. Leshner AI (1997) Addiction is a brain disease, and it matters. Science 278(5335): 45–47. Levy N (2006) Autonomy and addiction. Canadian Journal of Philosophy 36(3): 427–448. Volkow ND and Li TK (2004) Drug addiction: The neurobiology of behaviour gone awry. Nature Review of Neurology 5(12): 963–970. World Health Organization (2004) Neuroscience of Psychoactive Substance Use and Dependence. Geneva: World Health Organization.

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Relevant Websites http://www.emcdda.europa.eu/publications/monographs/ neurobiology – European Monitoring Centre for Drugs and Drug Addiction. http://www.foresight.gov.uk/OurWork/CompletedProjects/ Brain%20Science/index.asp – Foresight, Brain Science and Addiction. http://www.acmedsci.ac.uk/p99puid126.html – The Academy of Medical Sciences, Working group and policy reports. http://www.nida.nih.gov/ – National Institute on Drug Abuse. http://www.nida.nih.gov/pubs/teaching/default.html – National Institute on Drug Abuse, Teaching Packets.

Biographical Sketches Benjamin Capps was appointed as an Assistant Professor at the Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore, in 2008. He was previously a Research Fellow at the Centre for Ethics in Medicine, University of Bristol, UK. He read for a Doctorate in Medical Ethics (awarded in 2004) and completed a Postdoctoral Fellowship at the University of Bristol (2004–06), both funded by the Wellcome Trust’s Biomedical Ethics Programme. He has coordinated a number of projects, including an ethical review for the Department of Trade and Industry’s Foresight pro­ ject: ‘‘Brain Science, Addiction and Drugs’’ (published in 2005); a commissioned report, ‘‘Public Interest and Public Good as Applied to UK Biobank Access Decision-Making’’ for the UK Biobank’s Ethics and Governance Council (published in 2008); and an inter­ national multicenter project ‘‘New Developments in Neuroscience and Genetics: Implications for Policy and Practice’’ (published in 2009), with Adrian Carter and Wayne Hall. He has prepared a report for the Bioethics Advisory Committee of Singapore titled ‘‘Oocyte Procurement for Research’’ (published in 2007). He has been a Visiting Fellow at the Centre for Biomedical Ethics at the National University of Singapore (2007 and 2008) and the Hastings Center, New York (2005).

Adrian Carter is a Postdoctoral Fellow at the School of Psychological Sciences, The University of Melbourne and the Centre for Clinical Research, The University of Queensland, investigating the way in which a neurobiological understanding of addiction affects how we think about and treat individuals with an addiction. In 2009, Dr Carter was awarded the Australian National Drug and Alcohol Award for Excellence in Research. He received the Dean’s Award for Outstanding Research Higher Degree Theses from The University of Queensland in 2009 for his dissertation, ‘‘Addiction Neuroethics: The Promises and Perils of Neuroscience Research on Addiction.’’, which was published as a book in 2011. Dr Carter has 24 publications on these issues since 2006, including reports for the World Health Organization (WHO), the European Monitoring Centre for Drugs and Drug Addiction, and the Australian Ministerial Council on Drugs Strategy, and has been an advisor to the WHO and the United Nations Office on Drugs and Crime.

Wayne Hall is a National Health and Medical Research Council Australia Fellow and Professorial Research Fellow at the UQ Centre for Clinical Research at The University of Queensland. He was formerly Professor of Public Health Policy in the School of Population Health, UQ (2005–10), Director of the Office of Public Policy and Ethics at the Institute for Molecular Bioscience, UQ (2001–05), and Director of the National Drug and Alcohol Research Centre at the University of New South Wales (1994–2001). He has advised the World Health Organization on the health effects of cannabis use, the effectiveness of drug substitution treatment, the scientific quality of the Swiss heroin trials, the contribution of illicit drug use to the global burden of disease, and the ethical implications of genetic and neuroscience research on addiction. In 2001, he was identified by the Institute for Scientific Information as one of the world’s most highly cited social scientists in the past 20 years. He was awarded an NHMRC Australia Fellowship in 2009 to research the public health, social policy, and ethical implications of genetic and neuroscience research on drug use and addiction.

Adoption D H Siegel, Rhode Island College, Providence, RI, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Adoption The act of transferring legal parental rights from one parent to another. Best practice Policies, standards, and procedures based upon sound empirical research, professional codes of ethics, and widely accepted theory. Birth parent The biological mother or father whose parental rights are legally terminated, either involuntarily or voluntarily. Intercountry adoption Adoption of a child born in one country by a parent who lives in another; the child is moved across international boundaries.

Paths to Adoption Adoption occurs when biological parents legally termi­ nate their parental rights and responsibilities to their child, either voluntarily or involuntarily by a court of law, and another parent or parents legally assume those parental rights and responsibilities. These legally trans­ ferred arrangements are distinct from informal adoptions, which throughout human history have occurred when available adults have assumed parental roles for children in need, without legal sanction or recognition. This article deals with legal adoption. Adoptions are formed by many different auspices and routes; each carries with it unique as well as similar ethical issues. For example, an adoption may take place either within a biological family (this is known as kinship adoption) or among people with no genetic ties. Some children enter adoption through foster care. Government-run child welfare agencies in some countries may deem biological parents unable to ensure the child’s safety, due to abuse or neglect, and place the child into foster care while providing services to biological parents with the goal of reunification. If reunification efforts fail, the state may terminate parental rights and free the child for adoption either by that or by another foster family. These are known as public child welfare adoptions. Adoptions may instead be facilitated by a governmentlicensed private agency, for either profit or nonprofit. These are known as private agency adoptions. Private agencies may facilitate adoptions either within a country (domestic) or across international boundaries (intercountry).

Kinship adoption Adoption of a child to whom one is genetically related. Open adoption Adoption in which there is contact and exchange of identifying information between birth and adoptive families. Special needs adoption Adoption of a child who is over age 3, is of color, is in a sibling group, or has a behavioral, emotional, physical, or learning disability or developmental delay. Transracial adoption Adoption of a child of one race by a parent of another.

Some adoptions are handled without agency involve­ ment, via an intermediary or an attorney, or the birth parent directly places the child; these are called indepen­ dent adoptions. (Examples of different kinds of adoption can be heard on the National Public Radio website. (See ‘Relevant Websites’ section.))

Overview of Ethical Issues in Adoption The kinds of ethical issues in adoption vary in part depending upon which of the previous paths leads to an adoption. Some ethics concepts run thematically through the adoption landscape; generally, these have to do with self-determination and autonomy; informed consent; truth telling and deception; confidentiality, privacy, and secrecy; paternalism and coercion; conflicts of interest; social and economic justice; and human rights. While this is not an exhaustive or mutually exclusive list, orga­ nizing one’s thinking in this way may facilitate efforts to identify and analyze ethical issues in adoption. Some generally, although not universally, accepted principles to guide adoption policy and practice have emerged. Ethics debates, however, persist regarding how these principles should be applied in adoption laws, agency policies, and clinical practice. Some widely accepted principles include the following: 1. Adoption’s primary purpose is to provide children with parents, not to provide children to adults who wish to parent.

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2. Whenever possible, children should remain with their birth parents. When birth parents are not able to parent a child adequately, it is best first to seek a biologi­ cal relative who can adopt the child. Adoption outside the biological family, culture, and country of origin should be an option only when a child cannot safely be nurtured within the biological family, country, or culture of origin. 3. Adoption should be available for all children in need of a family, regardless of race or color, age, sibling group size, ethnicity, social circumstances, health, mental health, learning disability, or other special need. 4. Children should have permanent families. 5. The child’s ethnic, cultural, religious, and language heritages should be honored when making adoption plans and throughout the adopted person’s life. 6. Children who are old enough should be consulted when adoption plans are being made on their behalf. 7. Adults who were adopted as children have the same rights to information about themselves that nonadopted people enjoy. 8. Poverty should not be the primary reason for mak­ ing an adoption plan. The only legitimate reason for adoption is birth family inability to nurture a child free of abuse or neglect. Major policy documents, including the United Nations Convention on the Rights of the Child, Hague Convention on Intercountry Adoption, and U.S. legisla­ tion such as Adoption and Safe Families Act (ASFA), Multi-Ethnic Placement Act (MEPA), and Indian Child Welfare Act (ICWA), reflect some of these principles. In the last two decades a nascent literature on adoption ethics has expanded somewhat, along with the growing literature on ethical issues and standards in the human service professions in general. The Code of Ethics of the National Association of Social Workers in the United States includes standards directly applicable to ethical conundrums that emerge in adoption policy and practice. In addition, the professional ethics literature provides philosophical concepts and theories and decision-making frameworks that one can use to analyze ethical issues in order to shape adoption policy and practice. Classic ethics concepts and theories include utilitarianism (one ought to make decisions that maximize positive outcomes for the greatest number of people), deontology (certain things are inherently good and one ought to do these things as a rule), and teleology (the ends can justify the means). Modern ethics concepts that have stood the test of time include autonomy (one ought to do that which enhances individual choice), beneficence (one should promote the common good), nonmaleficence (one should do no harm), and justice (the way in which social burdens and benefits ought to be allocated). In adoption, ethics concepts have sometimes been used to support self-serving actions. Market forces, politics,

self-interest, bias, and misinformation sometimes trump careful ethical decision making in determining adoption laws, policies, and clinical services. An ethically grounded approach involves first identifying a particular adoption issue as an ethical issue and then systematically examin­ ing it through the lens of multiple ethical theories and decision-making frameworks. While doing so may not always produce a clear right answer, it increases the like­ lihood of a well-reasoned, ethically justifiable conclusion. While ethical principles can conflict, yielding no clearcut course of action, sidestepping ethical analysis contri­ butes to adoption policy and practice that harm those they are intended to help. Contentious controversies characterize the world of adoption, in part because adoption issues evoke primal emotions. Categorizing these controversies through the lens of ethical principles can contribute to discerning ‘best practices,’ ‘the best interests of the child,’ and what it means to ‘do no harm.’

Self-Determination and Autonomy Ideally, any biological parent who is considering making an adoption plan would do so with full information about and access to all alternatives, including family preserva­ tion services and resources as well as the complete range of adoption options. This reflects the ethics concepts of self-determination and autonomy. Often, agencies and facilitators define the client as the person who pays the adoption fees. Typically, the fees that support an agency’s or facilitator’s practice are paid by prospective adoptive parents; hence, there can be financial pressure on agencies to make adoptions happen. This can result in purposeful or unwitting pressure on biological parents to follow through with adoption plans. The language service pro­ viders use may also exert pressure; calling a pregnant woman who is thinking about adoption a ‘birth mother’ instead of ‘mother’ may convey a bias toward the adoption option. Conversely, using language such as ‘give the baby away,’ ‘give up the child,’ or ‘surrender the child’ may imply that adoption means the birth parent does not want the child and is quitting; saying instead ‘make an adoption plan’ implies that adoption is a proactive choice. Agencies may also exert influence on the biological parent to accept whatever services the particular agency has to offer, even if the agency does not provide the service that the biological parent might actually prefer. If a prospective birth parent approaches a facilitator or agency that practices only confidential adoptions (where there is no contact or exchange of identifying information between the biological and adoptive families), that parent may not know that there is a wide range of mediated (contact through an intermediary), semi-open (disclosure of some identifying information), and fully open adoption

Adoption

alternatives available elsewhere. Openness in adoption is a continuum of many different kinds and frequencies of contact. The best practice that enhances self-determination and autonomy is for birth and adoptive parents to be carefully educated and supported as they develop for themselves an open adoption agreement that works for them in their unique circumstances. Providing this indi­ vidualized service is time consuming, costly, and may require an off and on lifelong clinical relationship with the people involved as situations and lives change; hence, many agencies offer a one-size-fits-all approach to open adoption, for example, advising all birth and adoptive families to limit their relationship to exchanging a letter and picture once a year at holiday time. While generally anyone who chooses and is physically able to reproduce is free to do so, not everyone who wishes to adopt may. Some governments and agencies do not allow people to adopt if they are over a certain age; lesbian, gay, bisexual, or transgendered; unmarried; disabled; overweight; or have some other so-called unde­ sirable personal characteristic. While it is widely accepted that governments have a responsibility to ensure that children are adopted by parents who are able to nurture a child safely, standards vary widely and are more restric­ tive than those applied to people who have children by birth. Often biases, not criteria grounded in rigorous research, dictate who is approved to adopt. In an effort to deal with this disparity, some agencies that do home studies (the legally mandated pre-adoption education and screening process) approve virtually any family that meets very minimum criteria (such as no record of having harmed a child, no active substance abuse). Other agencies use the home study experience to help prospec­ tive adoptive parents explore their needs, motivations, expectations, assumptions, and anxieties regarding adoption and assess for themselves their readiness to parent a child through adoption. As a result of this selfexploration, some prospective adopters may realize that adoption is not a good fit for them. This approach to the home study protects children while enhancing adults’ self-determination. Some governments mandate counseling and licensed agency involvement for all prospective birth and adoptive parents. Others do not. While the latter offers more autonomy perhaps, the absence of full information about alternatives to adoption or about the lifelong issues that accompany adoption might actually limit self-determina­ tion. Birth and adoptive families may mistakenly believe that adoption is an event, not a lifelong process with predictable, normal, developmental crises that may require counseling and other services along the way. (See ‘Relevant Websites’ section for a documentary film illustrating emotional issues in adoption.)

33

Effective pre-adoption education and post-adoption services can enhance self-determination. Governments differ regarding how soon after giving birth a woman is allowed to consent to an adoption and how long she has to revoke that consent. On the one hand, some argue that government should not interfere with a biological parent’s autonomy to make a decision within a time frame of her or his choice. On the otherhand, some say that a woman is more likely to be exhausted, affected by hormones and intense emotions, right after giving birth and should be required by law to wait before con­ senting to adoption; some governments require a 25-h wait, a 2-week wait, or longer. Some allow 2 weeks for withdrawing consent; others require 6 months. Some agencies prescribe what kind of pre- and post-adoption contact birth and adoptive parents are allowed to have, while others offer more room for selfdetermination. For instance, some agencies do not permit direct face-to-face contact but do require that adoptive parents send a full frontal facial photo of the child to the agency every 6 months; a profile shot of the child is unacceptable. The agency may require that all letters be sent via the agency, which screens them, whiting out any information the agency deems unsuitable to exchange. As the child grows, agency policy grants the child no say in determining when and what kinds of photographs, if any, are sent to the birth parent. These limits on autonomy and self-determination are based on paternalistic impulses to protect the people involved. In an effort to preserve Native American identity in the United States, the Indian Child Welfare Act of 1978 (PL 95-608, 92 Stat, 3969) stipulates that a child who has a percentage of Native American heritage must be offered for adoption according to the following hierarchy: first by an extended family member, then by another member of the child’s tribe, next by another Native family, and only then by a non-Native family. This is an effort to preserve the child’s and tribe’s heritage. Some Native American birth parents may feel that the law limits their access to the freedom other birth parents have to pick a family for their child. In contrast, the United States’ Metzenbaum Multiethnic Placement Act of 1994, amended in 1996, forbids strict racial matching of a child and adoptive family; a child may not be denied speedy placement with a suitable family solely on the grounds that the adopting family is of a different race. Some argue that the law does not sufficiently acknowledge a child’s need for a family that shares the child’s heritage. Protecting self-determination and autonomy in adop­ tion can be elusive. For example, birth parents in public child welfare adoptions often have little or no voice in determining whether or not their child is freed for adoption or who adopts their child. Public child welfare agencies and courts have tended to disempower and control biological

34

Adoption

parents who have been determined to have abused or neglected their children; the agency decides what these parents have to do to be reunited with their children, where the children will be placed in foster care, and when reunification or termination of parental rights will occur. In contrast, newly emerging family-centered models of child welfare practice aim to foster more client selfdetermination in the public child welfare system. A family-centered approach includes biological and foster parents, other biological and fictive kin (people who func­ tion as family without genetic or legal links), and other significant people (e.g., a teacher, neighbor, clergyperson) in the family’s life as collaborators on a carefully coordi­ nated intervention team focused on the family’s strengths, hopes, and goals. This more collegial approach expands resources and supports and fosters birth parent involvement without abandoning the state’s role in child protection. When the family-centered practice model works well, the child either returns safely to the biological parents or is adopted by the foster family that continues its relationship with the birth parents and other biological kin so that the child endures fewer cutoffs and losses. This collaborative, nonadversarial perspective can reframe the view of adop­ tion; instead of thinking in terms of an adoption triad composed of birth parents, adoptees, and adoptive parents who have competing interests, one thinks of an adoption circle composed of multiple people (including the extended birth and adoptive families) linked in love or concern for the same child. This new view may help the players manage conflicts of interest more ethically and humanely. Passive mutual consent registries also limit client selfdetermination. Some governments have established regis­ tries whereby a birth parent and adopted person can indicate their wish to be contacted by the other party. If both indicate that wish, the registry makes a match. If only one party registers, no further action occurs. If one party is deceased or does not know about the registry, the other party is left in limbo. Some registries only allow a biolo­ gical parent, not other biological relatives, to register or require that the adult adoptee have the adoptive parent’s written permission in order to register. An active mutual consent registry includes staff who will attempt to contact the sought person; while this is somewhat more empow­ ering, it does not provide access to other information about oneself that is available to nonadopted persons and thus also limits self-determination.

Informed Consent In order to be self-determining and autonomous when making choices for oneself, one needs information. Adoption facilitators, attorneys, and agency personnel must decide who they view as their client and commu­ nicate this clearly and directly to the other parties in the

adoption plan. The person paying the adoption fees, usually the prospective adoptive parent, typically sees himself or herself as the client. Simultaneously, the birth parent may have contacted the agency to ask for help in exploring the adoption option and may thus see herself or himself as the primary client. Often agencies see the child, not the biological or prospective adoptive parent, as the primary client. When the parties involved in making an adoption plan have different views of whose interests and needs the agency or facilitator will hold primary, truly informed consent does not exist. Lack of informed consent may affect birth parents in particular ways. Not all biological parents who consider making an adoption plan receive quality counseling, or any counseling at all, regarding the lifelong grief and loss issues that freeing one’s child for adoption typically pro­ duce. (Examples of how secrecy and cut-offs may affect birth parents can be heard on the National Public Radio website. (See ‘Relevant Websites’ section.)) Agencies and facilitators, who have a financial incentive to finalize adoptions, may not adequately challenge a pro­ spective birth parent’s beliefs that relinquishing parental rights will ensure a better life for their child. Similarly, while growing numbers of private agencies and facilitators encourage biological parents to meet and then choose the adopting parents, not all are extended this option; their child might be placed with someone unacceptable to them. Child information given in good faith to prospective adoptive parents may be incomplete or erroneous. Or infor­ mation that might discourage prospective adoptive parents from adopting a particular child might be withheld inten­ tionally. The term ‘wrongful adoption’ has been used to describe situations in which parents adopted a child without receiving full disclosure of all the information the agency held regarding the biological family’s physical and mental health and other circumstances. Successful lawsuits against agencies who did this have led to full disclosure of issues such as history of abuse, criminal behavior, schizophrenia, addiction, learning disabilities, or developmental disabil­ ities within the birth family that might predispose a child to special needs in the future. Adoptive parents brought these suits in the effort to obtain funds necessary to purchase services to meet their child’s special physical, mental health, behavioral, and educational needs. Had they known in advance that there was a particular possibility of these needs, they would have sought adoption subsidy agree­ ments or made other plans at the time of the adoption. In the absence of fully informed consent adequate planning was not possible. High fees that must be paid to private adoption agen­ cies, facilitators, and attorneys, both for domestic and intercountry adoptions, may lead potential adopters to consider adopting through a less expensive channel, a public child welfare agency. Many of the children freed for adoption through public agencies are survivors of

Adoption

traumatic abuse, neglect, or loss, are older, are in sibling groups, are of color, or have special health, educational, and mental health needs that present unique challenges both to the child and to their adoptive families. Hence, the adopters with the least financial resources may end up adopting the children with the most needs requiring costly supports and services. While adoption subsidy pay­ ments may be available for children with special needs, specific eligibility requirements may deny access to needed services. Full disclosure of these possibilities is essential for truly informed consent. The Adoption and Safe Families Act of 1997 in the United States stipulates that public child welfare agencies in the United States must honor specific timeframes in moving children quickly from foster care into permanent families. There are financial incentives for states to finalize adoptions. Many of the children in need of adoption have special needs. Workers who feel organizational pressure or who have fully benign wishes to move children into perma­ nent families may disclose information in ways that minimize or subtly camouflage their descriptions of a child’s special needs when presenting a child to a prospec­ tive adoptive parent. While the workers tell the truth, they use gentle language that may not convey the full emotional and practical impacts of living with this child’s struggles.

Truth Telling and Deception In several developing nations, fees paid to agencies that facilitate adoptions have motivated kidnappings to supply children to adopting parents in more affluent societies. While orphanages in some developing countries have many children in need of families, the children who are kidnapped for adoption may be those who are living in families; sadly, the children in orphanages may be older, traumatized, or disabled and considered less desirable or adoptable than healthy, happy children who are living with their parents. (Illustrations of challenges that may occur in adopting a child from a Russian orphanage can be heard on the National Public Radio website. (See ‘Relevant Websites’ section.)) The parents who adopt these kidnapped children are told that the biological parents’ rights have been legally terminated. In independent open adoptions there can be a lack of full disclosure or deliberate deception between biological and adoptive families. Both parties may misrepresent them­ selves in order to appear more appealing to the other. In the worst scenarios, prospective adoptive parents purpose­ fully mislead biological parents, promising contact they do not intend to honor. Biological parents who have no inten­ tion of adoption may accept legal payments from prospective adoptive parents under false pretenses. In some instances, a biological parent has recruited multiple prospective adoptive parents who do not know of one

35

another, all of whom supply legally permissible payments in the hope that the biological parent will place the baby with them. Private agencies and facilitators have also delib­ erately misled prospective adopters in order to collect fees from them. While baby selling is illegal, some biological parents offer their child to the prospective adopter who is willing to provide the most living expenses. A biological mother may strongly feel that although she is not equipped to parent, neither is the child’s biological father. Thus, she may claim that she does not know who the father is and may not tell the father that the child exists. The agency or facilitator may accept her word without chal­ lenge or exploration because it is less complicated for them to do so; rather than search for and devote time and expen­ sive clinical services to a biological father, they simply pursue a termination of any putative biological father’s parental rights. This may deny the biological father’s rights to parent his child or participate in making an adoption plan and deny the child access to part of the birth family. Birth fathers may be handled as an afterthought, receiving mini­ mal or no counseling and other services. Embryo adoption involves a fertilized egg from one set of genetic parents being implanted into the uterus of a woman who did not produce the egg. This practice intro­ duces many ethical questions regarding the resulting child’s right to know the circumstances of her or his conception. The same holds true when a child is con­ ceived via donor egg or sperm. When the donors are anonymous, the child is affected by lack of access to full information about her or his genetic makeup.

Confidentiality and Privacy versus Secrecy Some countries, such as New Zealand and England, and several states in the United States allow adult adoptees access to their original birth certificates. Before the 1900s most birth certificates were unsealed. Sealing these records in perpetuity began in an effort to shield children who were adopted from the stigma of shame that accom­ panied birth outside of marriage. The stigma dissolved with changing times; the feminist and civil rights move­ ments, access to birth control and abortion, and changes in attitudes and family structure made adoption a more acceptable way of forming a family. Proponents of allow­ ing adopted persons the same access to their birth certificates as nonadopted people see this as a fundamen­ tal civil and human rights issue. Permanently sealed original birth certificates deny adopted people access to information about themselves that is everyone else’s birthright. Promises of confidentiality could never legiti­ mately be made because adopted people and their biological relatives have searched for each other and reunited all along. The advent of the Internet has made

36

Adoption

searching feasible, so accessing birth certificates is no longer about searching; it simply gives adopted people information about themselves. Opponents of access to original birth certificates fear that giving an adopted per­ son this information could violate birth parent privacy and promises that might have been made to them about confidentiality. Today it is clear that these secretive practices meant to help people actually cause harm. Many twentieth-century birth parents have come forward to say that they had no choice; they were required to accept sealed birth certifi­ cates and adoption records in order to make the adoption plan. They say they have lived haunted by unanswered questions: Does my child know that he is adopted? Is she alive? Is he thriving? Does she need any information from me in order to protect her mental or physical health? Many adopted people, similarly, have reported feeling burdened by the mandated secrecy surrounding their adoptions. The legally required secrecy, they explain, conveys that there is something fundamentally shameful about their births and identities. They report feeling that a piece of themselves is missing. They fear marrying a biological relative and are worried about passing on to their children and grandchildren unknown genetic vulnerabilities. Even when non-identifying biomedical information from an adoption record is shared with the adopted per­ son, lack of ongoing access to the birth family means that health information that was not known at the time of the adoption but has emerged since is also not available to the adoptee. As a result, increasing numbers of governments are granting adults who were adopted access to their original birth certificates. While allowing this access has yielded very few problems, the practice remains controversial. There is growing awareness in general that adopted people have a right to know that they were adopted and a right to any health and mental health information that might impact choices they make. While most adoption experts support fully answering any questions an adopted person asks about the birth family, there is disagreement about the age when disclosure is appropriate and how much information to disclose. Some governments have passed ‘safe haven’ laws that permit a biological parent to leave anonymously a new­ born at a hospital or police or fire station, free of legal charges of abandonment. These laws are intended to protect infants who might otherwise be left to die. Ethically, these laws are problematic in many respects. They deny infants access to any biopsychosocial informa­ tion about their genetic origins, invite vulnerable parents to make a possibly impulsive life-altering decision with­ out any assistance, offer no assurance that the person dropping off the baby actually is the biological parent, may completely ignore the other biological parent’s rights

to participate in the decision, and discriminate against older infants and children who also have biological par­ ents who feel unable to care for them.

Paternalism and Coercion Biological parents may be subtly coerced to follow through with adoption plans because they feel obligated to prospective adoptive parents who have legally pro­ vided funds for medical, legal, and other legitimate adoption-related expenses. This dynamic may also occur when the agency providing pre-adoption counsel­ ing provides the funds to the biological parent. As a consequence, some argue that governments, not agencies or prospective adopters, should fund pre-adoption ser­ vices via tax revenues. This would also remove the profit motive from the equation so all focus can be on what the child needs, not on satisfying the one who pays the bills. Coercion also characterizes the way some states han­ dle open adoption agreements for children moving from foster care to adoption. Those who voluntarily relinquish their parental rights in exchange for promises of ongoing contact with the child may discover that they have little or no legal recourse when the child or adoptive parents fail to deliver on promised contact; not all governments have laws making open adoption agreements legally enforceable. Foster parents who wish to adopt the child in their care may be told that in order to do so, they must agree to a certain number and types of contacts per year with the child’s birth parents, regardless of whether they agree that the plan is best for the child or one they can live with and fulfill. The public child welfare per­ sonnel put the pre-adoptive parents in an untenable situation – either lose the child they love and care for or succumb to an ‘agreement’ to which they do not agree. These false ‘agreements’ are also thrust upon biological parents, who are told that if they do not consent to a voluntary termination of their parental rights (TPR) in exchange for a promise of annual visits with the child, the agency will obtain an involuntary termination and no visits will be promised. A voluntary TPR that is coerced is voluntary in name only. Public child welfare agencies pursue these in an effort to speed cases through the system and move children into adoptive homes without lengthy involuntary TPR proceedings. They serve agency needs, not the needs of children and their families. Adoptive parents, like parents by birth, face many issues of paternalism in relation to their children. In addition, there are unique issues in adoptive parenting. Adoptive parents need to decide what kinds of difficult information about the birth family to share with their child. Perhaps the child was conceived by incest or rape;

Adoption

the birth parents have drug addiction, mental illness, or troubled psychosocial circumstances; or the birth parents are parenting the child’s siblings. The child’s right to know important information about him- or herself must be balanced with decisions about what, how, and when to disclose information that the child may find hard to comprehend or cope with. Some agencies will not allow prospective adoptive parents to bring an infant or child home until after the birth parent has terminated parental rights because it can be emotionally traumatic for the prospective par­ ents to return the child should the birth parent revoke their consent to the adoption. Even when the birth parent in these situations wants the infant to go directly into the adoptive home and not enter foster care first, and the adoptive parents are willing to take the risk, the agency refuses. This is an obvious example of paternalism.

Conflicts of Interest and Competing Values The interests and needs of the child, biological and adop­ tive families, agencies, facilitators, health care providers, attorneys, and others involved in adoption often conflict. While, for instance, it may benefit birth parents to have up to 6 months to revoke their consent to adoption, it may leave a child in a pre-adoptive placement in an emotion­ ally traumatic limbo. Biological parents’ rights to raise their children may clash with their children’s rights to a safe, nurturing family. A public child welfare social worker may wish to adopt a client of the agency because there is no other adoption alternative available to that child, even though changing roles from worker to parent in that child’s life may bring emotional complexities that could hurt the child. A birth parent may want to search for an adult child he or she lost to adoption many years ago, but fear intruding in unwanted ways into the adoptive family’s life, and vice versa. The same lawyer may repre­ sent both the birth and adoptive parents in an adoption; if the parties’ interests conflict, whose will the lawyer pri­ marily serve? This can be true when the same social worker counsels both the birth and adoptive parents. Adoptive parents may want to pursue a relationship with their children’s birth parents, when the child objects to that, and vice versa. Sometimes practice principles or legal mandates con­ flict. So, for instance, when adoptees ask an agency for information about themselves in sealed records, workers must decide between honoring a person’s right to know and upholding policy or law. Another example of com­ peting values occurs when a biological relative who is providing foster care is willing to do so permanently but is unwilling to adopt the child because adopting means

37

losing services necessary to meet that child’s needs. The agency must decide whether to honor the child’s biologi­ cal and emotional connection or to honor the child’s right to have an adoptive family.

Social and Economic Justice Social and economic justice have to do with equitable distribution of power and resources. Market forces, poli­ tics, and culture shape adoption policies and practices throughout the world. Government has a role in regulat­ ing adoption practices in ways that are ethical. This requires adequate public funding of well-informed laws and policies. For instance, many children available for intercountry adoption from Africa, Asia, Latin America, and Eastern Europe come from families who are unable to parent largely due to extreme poverty in their developing nations. In such economic and political environments it can be very difficult to locate people with the resources to add children by adoption to their families. As a result, children in need of parents may reside in orphanages or, at worst, on the streets. Proponents of intercountry adoption maintain that it is better to have a family in another country than to grow up in congregate care or with no care at all. Opponents note that in essence impoverished nations send children to families in affluent nations, denying these children access to their biological roots, language, and culture. This places undue burden on the child to adjust to unfamiliar circumstances and is a form of psy­ chological trauma and cultural genocide. The ethical course of action, they argue, is to keep children in their country of origin and devote more resources to devel­ oping adoptive homes there. In highlighting international adoptions by celebrities (e.g., Madonna, Mia Farrow, Angelina Jolie) who have adopted multiple children, the media may ignore ethical questions embedded in those situations. Interestingly, the United States, the nation that receives the most children from other countries for adop­ tion, also sends children to other nations to be adopted. For the most part, the children from the United States who are available for intercountry adoption are of color, are older, or have other special needs. It appears that the majority of adopting parents in the United States prefer a child who does not have identified special needs; in this instance, racism and ‘able-ism’ deny a child the opportu­ nity to remain in the homeland. From an ethical standpoint it appears that addressing societal discrimina­ tion might end the practice of sending U.S. children to other countries for adoption. The Hague Convention on Intercountry Adoption, an internationally accepted set of standards, specifies that a

38

Adoption

child must remain in the country of birth while the adoption agency makes reasonable efforts to find a biolo­ gical parent, other biological relative within the country if a biological parent cannot be found, or a nonrelative within the country who can adopt the child. Intercountry adoption becomes an option only when these first three options are unavailable. While this enhances the chances that a child’s genetic and ethnic links are honored, it can also slow placement into a permanent family, possibly exacerbating the child’s losses and trauma. Hence, under Hague two rights or values may conflict. Controversy in transracial/transcultural adoption also reflects social justice concerns. Affluent prospective adop­ ters whose demographic characteristics are similar to adoption workers’ typically have more access to the full range of adoption options than do low-income prospec­ tive adopters. This raises distributive justice issues. Some are concerned that by allowing transracial and intercoun­ try adoption, governments may not devote sufficient resources to developing same-race, same-country adop­ tion options for children.

Conclusion Ethical issues in adoption can be examined through the lens of basic human rights. Many argue that one has a fundamental human right to a safe, nurturing parent; complete access to information that can be critical to one’s own and one’s descendants’ physical and mental health and to information that is readily available to nonadopted persons; resources needed to parent one’s child above a subsistence level; adequate family preserva­ tion services so that adoption is not needed; services to meet a child’s special needs and to sustain adoptive and birth families in the lifelong adoption journey; and to adopt regardless of sexual orientation or other personal characteristic that does not compromise one’s ability to parent effectively. Debates about these and other issues continue to permeate adoption policy and practice.

See also: Autonomy; Child Abuse; Children’s Rights; Codes of Ethics; Ethnocultural Minority Groups, Status and Treatment of; Exploitation; Homosexuality, Societal Attitudes Toward; Infertility; Native American Cultures; Needs and Justice; Poverty; Privacy, Challenges to; Reproductive Technologies, Overview; Rights Theory; Sexual Orientation; Theories of Justice, Rawls; Utilitarianism.

Further Reading Babb LA (1999) Ethics in American Adoption. Westport, CT: Bergin & Garvey. Carp EW (1998) Family Matters: Secrecy and Disclosure in the History of Adoption. Cambridge, MA: Harvard University Press. Fogg-Davis H (2002) The Ethics of Transracial Adoption. Ithaca, NY: Cornell University Press. Freundlich M (2000) Adoption and Ethics: Volume 1 – The Role of Race, Culture, and National Origin in Adoption. Washington, DC: Child Welfare League of America. Freundlich M (2000) Adoption and Ethics: Volume 2 – The Market Forces in Adoption. Washington, DC: Child Welfare League of America. Freundlich M (2001a) Adoption and Ethics: Volume 3 – The Impact of Adoption on Members of the Triad. Washington, DC: Child Welfare League of America. Freundlich M (2001b) Adoption and Ethics: Volume 4 – Adoption and Assisted Reproduction. Washington, DC: Child Welfare League of America. Freundlich M (2006) Ethical issues in adoption. In: Shepherd SK and Bullough VL (eds.) The Praeger Handbook of Adoption vol. 1, pp. 208–212. Westport, CT: Praeger. Greenhaven Press (2009) Issues in Adoption: Current Controversies. Farmington Hills, MI: Thomson-Gale. Murphy T (2005) An Ethical Assessment of Intercountry Adoption: Romania to the United States 1990–2003. Doctoral dissertation, Salve Regina University. Available at: http://escholar.salve.edu/ dissertations/AAI3169310/ Pati J (ed.) (2007) Adoption: Global Perspective and Ethical Issues. New Delhi: Concept Publishing Co. Reamer FG and Siegel DH (2007) Ethical issues in open adoption: Implications for practice. Families in Society 88(s1): 11–18. Schweitzer H and Pollack D (2006) Ethical and legal dilemmas in adoption social work. Family Court Review 44(s2): 258–269. Smith JF (1996) Analyzing ethical conflict in the transracial adoption debate: The conflicts involving community. Hypatia 11(2): 1–33. Stolley KS and Bullough VL (eds.) (2006) The Praeger Handbook of Adoption, vols. 1 and 2. Westport, CT: Praeger.

Relevant Websites http://www.adoptivefam.org/ – Adoptive Families. http://www.npr.org/templates/story/story.php?storyId =12138181 – An Adoption Gone Wrong, National Public Radio story on Morning Edition, July 24, 2007. http://www.americanadoptioncongress.org/ – The American Adoption Congress. http://www.cwla.org/programs/standards/ cwsstandardsadoption.htm – Child Welfare League of America, Adoption Standards. http://www.adoptioninstitute.org/ – Evan B. Donaldson Adoption Institute. http://www.hcch.net – Hague Convention on Intercountry Adoption. http://www.ncsl.org/programs/statetribe/icwa.htm – Indian Child Welfare Act. http://home.jdmag.net/default.aspx?dir¼/dir/ Family/Adoption/International/ Joint_Council_on_International_Children%27s_Services/ index-2-690-13203-0-0-0-.html – Joint Council on International Children’s Services. http://www.acf.hhs.gov/programs/cb/pubs/mepa94/index.htm – Multi-Ethnic Placement Act of 1994, amended 1996.

Adoption http://www.npr.org/templates/story/story.php?storyId= 4237866 – Open Adoptions Redefinining Extended Family, National Public Radio story on All Things Considered, December 24, 2004. http://www.npr.org/templates/story/story.php?storyId= 125903954&ps=rs – Russian Case Spotlights Potential Adoption Risks, National Public Radio story by Deborah Tedford, April 13, 2010. http://www.npr.org/templates/story/story.php?storyId= 5408449 – The Girls Who Went Away: Birth Mother Stories, National Public Radio story on Fresh Air From WHYY, May 16, 2006. http://www.unicef.org/crc/ – United Nations Convention on the Rights of the Child. http://unlockingtheheart.com/www/index.htm – Unlocking the Heart, video clip of a documentary film, May 26, 2008.

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http://www.npr.org/templates/story/story.php?storyId= 10100860 – Young, Shunned and Thrown Off Course, National Public Radio story on Weekend Edition, May 13, 2007.

Biographical Sketch Deborah H. Siegel, Ph.D., LICSW, DCSW, ACSW, is Professor, School of Social Work, Rhode Island College. She earned her B.A. in 1972 from Dickinson College and graduate degrees in 1974 and 1981 from the University of Chicago. She has taught at Auburn University, University of Chicago, and University of Missouri; consulted for adoption agencies; provided clinical services for people whose lives are touched by adoption; pub­ lished research on open adoption; written articles and chapters on adoption ethics and other related topics; and presented at numerous conferences on adoption.

Advance Directives E van Leeuwen, Radboud University Nijmegen Medical Center, The Netherlands

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Hans-Martin Sass, Volume 1, pp 41–49, ª 1998, Elsevier Inc.

Glossary Advance directive An advance directive is a set of instructions made by a competent person regarding her or his treatment at the end of life. An advance directive becomes active when that person is no longer capable of making decisions due to terminal or irremediable illness or loss of consciousness. Advance directives encompass a set of ways in which persons have written down their wishes, ideas, and instructions in case they are no longer capable of participating in decision making. Most notable examples are living wills and the durable power of attorney. A special case of advance directives consists in the Dutch possibility to express a euthanasia directive. Durable power of attorney A durable power of attorney is a legal document in which a proxy is appointed who will be charged with decision making in case of mental incapacity of the person who has written the document and had it signed by two independent witnesses.

Historical Overview Advance directives became a legal reality in the United States in 1991. The Patient Self Determination Act (1991) states that healthcare institutions are required to give written information to their patients about their right under state law to execute advance directives. The law completed a dispute in the United States on terminal care for patients and the right to withhold or withdraw treat­ ment in case of a unconscious patient (coma, persistent vegetative state). The dispute began with the case of Karen Ann Quinlan. In 1976 Karen Ann lapsed into a persistent vegetative state at the age of 21, after coming home from a party. Her parents asked for removal of the ventilator after some 6 months. The hospital refused to do so, and after legal procedures the parents were granted their wish. After withdrawal of the ventilation, Karen Ann started to breath normally and she lived for another 10 years. The Quinlan case stirred public debate in 1976 about a wide range of issues having to do with dying in hospital care. Sissela Bok, who was granted her Ph.D. in 1970 on Voluntary Euthanasia, published in the same year

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(Voluntary) euthanasia Euthanasia has been defined in many ways. Voluntary euthanasia refers to a situation in which a patient explicitly expresses a wish to die while suffering unbearably. Living will A living will ordinarily expresses desires and wishes of a patient concerning the preferred treatment in a terminal situation, sometimes connected with forbidding special treatments. Mental incapacity A situation in which a person is no longer capable of deciding about his own interests at issue. Persistent vegatative state The (wakeful) condition of a patient after a coma when cognition is lost and only certain, involuntary actions are performed on his or her own. The lower brain stem is still intact, but higher brain functions are lost. Right to die The idea that one’s life and body are one’s own and that in case of terminal illness one is entitled to make one’s own decisions toward death.

an article in The New England Journal of Medicine called ‘‘Personal directions for care at the end of life.’’ That article started the debate also in the medical profession. The public and medical debate had as its discursive core the question: Who should be in control of decision making when death and dying are no longer natural events of life, but are instead controlled by medical technology? Numerous papers were written in the 1970s and 1980s on issues such as natural death, death and dignity, eutha­ nasia, the right to die, and living wills. The dispute on who is to decide? was stirred up by the Quinlan case, but it existed already in the United States as well as in many developed countries within medicine, medical ethics, philosophy, theology, and in legal debates. In 1964 in France, Simone de Beauvoir published Une mort tre`s douce (A Very Easy Death) as a memoir of her mother and pleaded for a patient-centered dying process. Cicely Saunders established St Christopher’s Hospice in 1967 as a place where holistic care could be given at the end of life. Spiritual care was considered as important as, for instance, adequate pain management. On the legal side, the concept of a living will had been coined in 1969 by

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Luis Kutner in an article called ‘‘Due process of euthana­ sia – living will, a proposal.’’ In the same year, the debate on euthanasia started in the Netherlands with a booklet on Medical Power and Medical Ethics, written by a psychiatrist-criminologist, JH van den Berg. The techno­ logical procedures that became available in intensive care units, as well as in surgery, raised questions about the goals of care at the end of life as well as on the moral justification of the decision-making process, once a no-longer conscious patient was kept alive by means of technological support. In the slipstream of the Quinlan case, the economic counterpart of that decision making became the last issue of the debate: Who should be kept alive under what circumstances, given the scarce eco­ nomic resources in health care, and who should be charged with paying the bill when the proxies do want to continue life support against medical advice? All the issues mentioned above were put in a legal perspective in 1991 by means of the legal framework of the Patient Self Determination Act in the Unites States. Similar laws followed in Europe and other parts of the world in the 1990s. The legal framework gave the patient a means to express her or his wishes and instructions in end-of-life care, even when the patient would no longer be in a mental state to participate in decision making. Several evaluations followed the legal hallmark. Most particularly, the Support study in the United States, pub­ lished in 1995, drew a great deal of attention in the mid­ 1990s, making claims that advance directives made no real difference in decision making and had no economic influ­ ence in the choice of necessary care. At the beginning of the twenty-first century, the focus of the debate shifted from individual decision making to communicative atti­ tudes and processes. The main outcome of this shift has been that directives became replaced by common or shared planning for advance care. This kind of care is now propagated as an effective means to deal with the desires and wishes of the patient in end-of-life care. The number of patients who made advance directives started to rise slowly over the years, mainly in the white middle class. Minority groups in the United States and Europe are more hesitating or even opposed to advanced care planning in the end of life. Studies on this matter suggest that some of those groups, such as Latin Americans in the United States, or African and Turkish people in Europe, do not consider the end of life so much a personal matter, but more an event or process within the family. Family values and family decision making supposedly lift the necessity of advance directives. Studies have also sug­ gested that some minority groups may distrust the medical establishment and therefore fear discrimination as a possible bias. Within the medical profession, advance directives also continue to be a matter of discussion, hesitation and even neglect. For instance, in cases of people suffering from dementia, advance directives tend

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to be interpreted from the perspective of the actual situa­ tion and not so much from the perspective of the patient at the time of writing the directive. In spite of these different opinions, advance directives have been given a legal place in health care. In 2009, President Obama was the first President of the United States who clearly admitted that he had an advance directive and recom­ mended it to the public.

Moral Justification The enactment of advance directives parallels the rise in the moral principle of respect for autonomy. This principle had been put forward by the President’s Commission of the United States in 1974. Initially, the principle signified that medical decision making should respect the values and autonomy of patients. With the rise of the legal concepts of confidentiality and informed consent, the principle of respect for autonomy became more and more associated with the right to choose and autonomous decision making. From the latter perspective, the advance directives can be justified too as an expression of the respect for autonomy. In a living will, for instance, someone can state what kind of medical treatment will fit into his or her philosophy, reli­ gious tradition, and basic values in life. Healthcare workers are then considered to be bound by the statement and will have to act accordingly. In practice, however, matters tend to be more complicated. Living wills are mostly made up in general terms and therefore too vague and inconclusive to give an explicit guidance to medical decision making. E. Emanuel therefore suggested, already in the late 1980s, that advance directives should be formulated as medical directives. In other words, the discourse in which people think and prepare themselves on issues of death and dying cannot easily be translated in the specific medical discourse of treating patients in terminal care. Another complication has to do with the so-called right to die. Is the way in which people will die strictly an individual matter in which they can make their own choice or does the dying process also involve a duty to communicate with family members, other loved ones, and caregivers? Jonas discussed this question of the right to die and the duty to respect others at some length already in 1978. In an example of hopelessly sick and suffering patients, he argued that: Death must be the most uninfluenced of all choices; life may have its advocates, even from self-interest, certainly from love. Yet even life’s case must not be pressed too hard in any such pleading. Especially love should acknowledge, against the clamor of self-interest, that no duty-to-live, though it may overcome in me the desire to die, can really nullify my right to choose death in the circumstances here assumed (Jonas, 1978: 32).

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The inalienable right to choose death thus grounds the advance directive as a personal choice of every individual. Still, even when that right is granted by the respect for autonomy as a warrant of the advance directive, and even when the statement of a living will is clear about the treatments that are preferred or refused, moral complica­ tions may continue. Healthcare workers do not solely work with the prima facie principle of respect for auton­ omy; they also have to deal with other principles, such as do no harm and serve the patient as best possible. In tragic circumstances, it is known that conscious autonomous patients initially express a sincere wish to die, for instance after suffering a severe accident that makes them physi­ cally handicapped for life. During revalidation, the patients then may recover their will to live and their strength to conquer their loss. So what should be done in an emergency room when someone is brought in unconscious, carrying an advance directive that forbids a life-saving surgical treatment and permits donation of organs? Does the respect for autonomy then prevail or do other principles, such as prudence and proportionate means in order to support the patient? In cases like this, life-saving treatment may, depending on the circum­ stances, prevail over the written statements in order to gain time to have the content of the writing confirmed by relatives or the patients themselves. As a special case the possibility of a euthanasia direc­ tive in the Netherlands can be mentioned. Advance directives in usual care are acknowledged in Dutch health care, as in many other countries. Because a request of voluntary euthanasia can be acknowledged and fulfilled under constraints of due care, it also became possible to write an advance directive on euthanasia. One of the constraints of due care has to do with the demand of intolerable suffering and the way in which that suffering is experienced by patients. Especially in cases of demen­ tia, the presence of severe, intolerable suffering can be difficult to assess. It may also be the case that patients suffer from dementia but at the same time show a will to live, although their advanced directive precludes such a situation. When patients with dementia enter the nursing home after having been taken care of at home, the care professionals are sometimes shown an explicit advanced euthanasia directive by family members or loved ones. Because the professionals did not have any contact with the patient before that moment of entering the institution, it becomes difficult for them to decide what to do with the directive. Ordinarily, they will be able to assess for themselves how much a patient is suffering and what perspectives remain, but even when such an assessment has taken place, physicians and other healthcare workers remain reluctant to meet the wish to die as was written down in the advance directive when a patient is comple­ tely incapacitated.

A last issue has to do with economy and the principle of justice as distributive justice. The case has occurred of a woman who carried an advance directive giving instruc­ tions for prolonged care when the tax regime would not allow her survivors to enjoy her estate fully. The taxation rule was to expire the next year, and she intended to survive that expiration even in a comatose state. The ethical discussion then had to do with the moral weight that should be given to advance directives that clearly were written in order to serve the interests of others. Should such a directive be accepted? That question is still left somewhat open given that the number of elderly who need long-term care in a state of dementia is grow­ ing. If their estate will be taken into account to provide for their care (instead of health insurance or Medicare), then the question arises of whether or not people could be allowed to die on behalf of, let us say, the education of their grandchildren. This type of gruesome reasoning seems to be far from the moral principles of health care as such, but it must be remembered that they seem to be in accordance with the legal thinking in which the legacy is formulated. To conclude, advance directives are morally justified by using the principle of respect for autonomy. That principle warrants the right of patients to make choices in end-of-life care, according to their own beliefs and philosophy of life. In practice, complications involve the explicitness of the directives, the opinion of relatives, and the duties of healthcare workers based on medical experi­ ence and the prognosis of quality of life after treatment. Economic incentives are morally not allowed within this perspective but could be advanced from a legal and social point of view, using the principle of distributive justice.

Philosophical Remarks If we look into the structure of why advance directives became a morally justified tool in the process of dying and end-of-life care, four aspects should be considered: 1. the advancement of medical technology; 2. individuality of dying: loneliness and relative autonomy; 3. public discourse: legal settlements and the consumer perspective; 4. death as a communal event. The Advancement of Medical Technology After World War II, medical technology developed rapidly. Special-care units for infant care were followed by intensive care units in the early 1950s. At the same time, pharmacological means to control and improve vital func­ tions were created. In the late 1960s and early 1970s, the

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moral and social consequences of the medical and techno­ logical development became apparent. Contraceptive means and abortion in the early phase of life and (dis)con­ tinuance of treatment in comatose or vegetative states became matters of debate. The first heart transplantation by Christiaan Barnard, who refused to disclose how the donor heart had become available, was one of the land­ marks that stirred debate about whether decision making in these matters could be completely left to doctors. It also became clear that although much progress had been made in controlling and improving physiological and biological processes by means of ventilation, antibiotics, and sedation, the result did not necessarily have to be a humanistic, morally evident good. On the other hand, the fact that technological progress was made, immediately created high hopes in prolonging and ameliorating the lives of patients. Stopping such a development because of nonme­ dical reasons seemed to be out of the question. The old medical saying when in doubt, withhold (in dubio abstine) was being changed to when in doubt, act (in dubio fac). This situation has been called the medical technological impera­ tive. Especially in the United States where doubts about saving the lives of very premature babies was ended by special presidential ruling, the so-called Baby Doe rules of Ronald Reagan, the medical technological imperative seemed to dominate the process of social and moral adap­ tation to the new technologies, while in other countries, in Europe but also in Canada, medicalization or even medical imperialism gained support. The Quinlan case can be considered a paradigmatic case in which it became clear that medical technology may make it possible to keep people alive, but it does not by itself create meaningful life in end-of-life care. It was therefore not surprising that natural death and death with dignity were central focus points in the discussion of the case. Advance directives, or personal directions as Sissela Bok called them, formulated one of the answers to a seemingly meaningless use of technology by stating that every person is entitled to make his or her own choices to ensure meaning in end­ of-life care. Another answer was given by Cicely Saunders and her pursuit of embedding technological care into meaningful social, psychological, and spiritual meanings of care. Individuality of Dying: Loneliness and Relative Autonomy Advance directives presuppose that dying is a process with the dying person at its center. Death, the end of the process, is a public event. Dying, however, is con­ sidered to be an individual, private affair. Within Western culture, the individualization of dying has a long history, probably going back to Roman and Greek Antiquity. Epicurus already formulated the vision that death implies the annihilation of a person. So there is

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no reason to fear death. That epicurean vision was sharpened in the nineteenth century in Kierkegaard’s work. Kierkegaard presented death and dying as ulti­ mately subjective events with a subjective truth. As such the subject is isolated in dying and thrown back onto mere existence. The views of Kierkegaard have been of great influence on existential philosophy but also on Protestant religion and theology. They pre­ pared the road for the belief that dying is a lonely process in which the subject alone has to face the end of his or her existence. Medical actions and medical care have a merely extrinsic meaning with respect to the humane, subjective aspects of dying. In this way, the meaning of being human, and in its suite the mean­ ing of being finite, become separated from biomedical knowledge about the dying process. The patient as a person, to recall the work of the Protestant ethicist Paul Ramsey, needs to be directly addressed as a fellow human being and not as an object of scientific or tech­ nological understanding. But even when fellow human beings do show a caring attitude, the loneliness of the individual who is dying may still remain insurmounta­ ble. Specific psychological tools have therefore been developed to deal with the existential loneliness that results from this possibility. Respect for autonomy recognizes as an ethical prin­ ciple the possibly insurmountable individuality in the subject of end-of-life care by granting persons the right to make their own choices. Following their own bio­ graphy, lifestyle, and philosophy, patients should be able to express their own wishes and desires in end­ of-life care. Autonomy is nevertheless bound by reason and therefore more than the expression of the subjec­ tive will, while truth in life also finds its limit in reasonability. Advance directives symbolize this rea­ sonability in that they cannot ask physicians and other care professionals to do things that are beyond the law or morality. Respect for a patient’s biography and nar­ rative therefore also presupposes a sufficient amount of understanding why the patient has formulated the directive. Although the subjective truth in itself may be beyond the reach of reason, the actions that have to be taken do need a reasonable justification. Otherwise, the compelling intention of the directive may get lost in unprofessional behavior. In this way, the advance directives also express a common relational ground for end-of-life care. The professional caregiver must have a reasonable understanding of the directive in order to be able to follow it. The same holds for the appointment of proxies. Studies have made it clear that it frequently happens that proxies do not follow the presumed will of their beloved when they have taken over decision making. The proxy follows his or her own reasoning, knowing that the patient would have thought differently. This discrepancy can be considered

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an infringement on the moral rights of the patient, but can also be explained as a consequence of the bounds of reason. The patient should have known that the proxy could not be forced to make decisions that would dis­ card what the proxy would see as the best way to act on behalf of the patient and therefore the patient must accept that things will not go as foreseen. Both inter­ pretative views continue to call for debates and be the source of misunderstandings, especially when others than the proxy are also familiar with the wishes of the incapacitated patient. Cultural traditions in which death and dying are not as individualized as within (at least) parts (existentialism, Protestantism) of the Western culture may not accept advance directives. Decision making should respect the values that belong to the family, not so much because the wishes or biography of the one who is dying are denied or neglected, but because the existence of the patient is still part of meaningful relationships, like kinship or families. Anthropological studies suggest that this might explain why advance directives are not very common among Latin Americans or Islamic people. The essence of end­ of-life care is, for instance, defined from the perspective of the care given by the family and not so much as the fulfillment of individual desires and wishes. The ties that bind individuals in the living community are in other words kept in place until the last moment of life. In such situations, autonomy results in more than reason­ able understanding. It takes into account the sharing of emotions and the common aspects of life within the family or the community. This concept of relational autonomy has been put forward by philosophers such as Joan Tronto. It states that in care relational bonds are more fundamental than the isolated individual wishes and desires. The latter should be dealt with from a perspective of responsiveness. Public Discourse: Legal Settlements The fact that written advance directives have found a swift and easy way to the legal systems of many countries, calls to mind the necessity of bureaucracy in the indivi­ dualized world as described by the early twentiethcentury German sociologist Max Weber. In his study on the rise of capitalism, he referred to the Protestant ethics of individual responsibility as a main source for rationa­ lizing public behavior and establishing legal rules and bureaucracy for society. Although the dying process as such is still not considered to be part of legal discourse in most countries of the world, persons are dead or alive, the ways in which people die need to be accounted for in legal terms. Death from natural causes is quite different than death caused by accident, violence, or intrigue. Life is an inalienable part of human beings and every non-natural way of ending that life needs to be investigated and

accounted for. Advance directives fill in the gap that exists between being fully alive in a competent way and being dead, because they clarify why decisions in the dying process have to be taken by physicians and other healthcare personnel. For instance, when an advance directive states that tube feeding, including water supply, should not be installed in some circumstance, the fact that the patient died because of dehydration can then be easily explained. From a legal and social point of view, natural death has then occurred in a way that only involves the action of the deceased person. In this way, a reasonable common ground is created between the subjective wishes of the patient and the professional standards of good care at the end of life. By recognizing advance directives, law and society indirectly recognize the subjectivity of the dying person. In the eyes of many, including philosophers of law such as Ronald Dworkin, this recognition marks progress in a humane direction. On the other hand, the law also has to keep its distance in matters of private choice by respecting the presence of an advance directive without control of the content of those directives. In this way, the legal system grants people a choice in their way of dying without taking part in debates about what could be called a good death from the personal perspective of the citizens. The position of the law toward advance directives therefore leaves open that citizens prepare themselves for death. The living will may thus be connected to the will of the deceased, making it possible for the funeral industry to anticipate the wishes of the person who is going to die. The funeral industry in developed countries can be estimated as having a considerable economic weight. In the United Kingdom, the turnover was estimated in 2010 as £1 billion and as more than $US 20 billion in the United States. By allowing people to die in their own way, society therefore opens the door to consumer perspectives on the process of dying and being dead. While for ages the naming and remembrance of deceased people was only something achievable by those who were recognized by their impor­ tance, the funeral market of the twenty-first century is reaching out to many persons. How this development will continue and whether it will affect the ways in which advance directives will become entangled with economic considerations, given the scarce resources for long-term care, is something that will need ethical debate. Death as a Communal Event Rituals, celebrations, and rites de passage, which the French anthropologist Van Gennep studied intensively more than a century ago, have marked the ways used by the living to say good-bye to their loved ones. Passage could be returning to the ancient fathers, a reunion with nature or deity, or the passage to hell or heaven. Within those celebrations, the dying person was not left alone, but

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within the community when he or she was to take leave. Within the hospital, surrounded by technology, a new environment has been shaped for the dying. Advance directives can be seen as an answer to that situation, an answer that again calls for others to sit near the bed and take part in the dying process. At least the advance direc­ tives give a sense of control to the dying person to die in his or her own way. Control and the wish to die at home have become strong factors present in advance directives as well in the request of voluntary euthanasia, as has become possible in countries like the Netherlands and Belgium. Control empowers the subject to make choices even when incapacitated. This paradoxical situation points to the moral quandary that has arisen with the mastery by medical technology of the dying phase of life, the quandary of how people should adapt the tech­ nology as a support in their wish for a humane and good death. That control should be respected in humane con­ versation and not seen as an excuse to leave the patient alone while the directives are obeyed.

Developments: Advance Care Planning Initiatives The latest development in advanced directives is the emer­ gence of advance care planning. Advance care planning aims at thoughtful and shared discussion and planning of all matters that might occur in the terminal phase of life. Patients, caregivers, and family members participate in the timely discussions that may take several meetings. The result will be planning ahead in such a way that all parties know beforehand what will be done in different kinds of situations. Studies have shown that advance care planning can reduce uncertainty and fear in patients of what will happen to them. In fact, advance care planning is a form of advance directive that is shared with the caregivers and can as such be considered the expression of relational auton­ omy and responsive behavior on the part of the patient to the caring support. Because advance care planning can take place in a situation in which end-of-life care is still in its palliative phase, patients can be given the time and the support to make up their minds and reflect on the com­ plexity of the issues that will be present in dealing with end-of-life care. Prudent and proportionate thinking and acting may then result for all parties involved. Emmanuel has pleaded in this respect for explicit orders for physicians that she terms ‘‘Polst,’’ physicians’ orders for life-sustaining treatment, in such a way that they are evidence-based by making use of validated forms. Others have already tried to develop web-based decision tools that may enhance the reflection of patients. It seems that advance care planning could be a break through the impasse between the profes­ sional use of medical technology and the subjective truth on the patient’s dying. Caveats have also already been

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published. Advance care planning should not rationalize a process in which deep and disturbing emotions are natu­ rally present in all parties involved. The good death targeted by advance care planning does not necessarily coincide with following the plan as it is written down in validated forms. This may cause a new kind of bureaucracy to surge that would exclude patients from their dying process. Instead, advance care planning should take into account that situations might change and will need recon­ sideration by all parties involved. In the end, dying is a process that is most intimately experienced by the one who is dying, and he or she should not only be responsive to the well-meaning intentions of caregivers. Another caveat has to do with the care of people who are becoming demented. Personal attitudes and emotional denial of the end stage of dementia may block an open and sincere discussion with respect to advance care planning. Empowerment of the patient, based on all available information, is then a neces­ sary requirement that could demand psychological counseling. As such, the ethics of advance directives is still moving between the various discourses of medicine, the law, psychosocial behavior at the end of life, and the subjective truth of dying.

See also: Brain Death; Death, Definition of; Death, Medical Aspects of; Death, Social Attitudes Toward; Palliative Care; Patients’ Rights; Right to Know and Right Not to Know.

Further Reading Abramovitch H (2001) Anthropology of death. In: International Encyclopedia of Social and Behavioral Sciences, pp. 3270–3273. New York: Elsevier/Pergamon. Boer ME de, Hertogh CMPM, Dro¨es RM et al. (2010) Advance directives in dementia: Issues of validity and effectiveness. International Psychogeriatrics 22: 201–208. Doukas DJ and Reichel W (2007) Planning for Uncertainty: Living Wills and Other Advance Directives for You and Your Family. Baltimore: The Johns Hopkins University Press. Emanuel LL (2008) Advance directives. Annual Review of Medicine 59: 187–198. Gastmans C and Lepeleire J (2010) Living to the bitter end? A personalist approach to euthanasia in persons with severe dementia. Bioethics 24: 78–86. Jonas H (1978) The right to die. Hastings Center Report 8(4): 32. King NMP (1996) Making Sense of Advance Directives. Washington, DC: Georgetown University Press. Kirk TW and Luck GR (2010) The modern advance directive and patients’ financial values. Journal of Pain and Symptom Management 39: 605–609. Ramsey P (1974) The indignity of ‘death with dignity’. Stud Hastings Cent Report 2: 47–62. Sass HM, Veatch R, and Kimura R (1998) Advance Directives and Surrogate Decision Making in Healthcare: United States, Germany and Japan. Baltimore: The Johns Hopkins University Press. Wittenberg-Lyles E, Villagran MM, and Hajek C (2008) The impact of communication, attitude and acculturation on advance directive decision making. Journal of Ethnic and Cultural Diversity in Social Work 17: 349–367.

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Advance Directives

Relevant Websites http://www.direct.gov.uk/en/Governmentcitizensandrights/ Death/Preparation – Directgov: Government, citizens an rights, Wills and probate. http://www.nlm.nih.gov/medlineplus/advancedirectives.html – MedlinePlus, Advance directives. http://www.patient.co.uk/doctor/Advance-Directives-(Living­ Wills).html – Patient.co.uk, Advance Directives (Living Wills). http://www.cancer.org/Treatment/ FindingandPayingforTreatment/ UnderstandingFinancialandLegalMatters/ AdvanceDirectives – American Cancer Society, Advance Directives.

Biographical Sketch Evert van Leeuwen Ph.D., is head of the section Ethics, Philosophy, and History of Medicine of the Scientific Institute for Quality of Healthcare: IQ healthcare at the Radboud University Nijmegen Medical Centre. The section combines philosophy, ethics, and medicine in interdisciplinary teaching and research. The program has an interface with the clinical departments and integrates clinical ethics, moral argumentation and philosophical study of key concepts. The section organizes the EU Master of Bioethics Course with the universities of

Leuven (Belgium) and Padova (Italy). Dr van Leeuwen studied philosophy and mathematics at the Free University (VU) of Amsterdam. In 1986 he graduated cum laude in philosophy on the Ph.D. thesis ‘Descartes’ Regulae’. From 1980 until 1983 he worked at a High School for Nursing in Den Haag/Voorburg as lecturer in philosophy, ethics, and world-orientation. From 1982–2007 he taught philosophy and ethics at the Faculty of Medicine of the Free University (VU) Amsterdam. In 1994 he was appointed professor of Philosophy and Medical Ethics at the faculty of medicine at the VU in Amsterdam. Since 1996 Dr van Leeuwen has participated in the European Intensive Bioethics Course (EU Erasmus/Socrates), organized by the University of Udine, Italy; and since 2002 he has participated in several EU Tempus projects on teaching Ethics in Medicine. Dr van Leeuwen was a member of the Regional Euthanasia Committee in North Holland 1999–2005, and has been a mem­ ber of the several IRB’s since 1989. In 1999 he became a member of the Dutch Central Committee Research involving Human Subjects CCMO. Dr van Leeuwen is a member of the editorial board of Theoretical Medicine and Bioethics (co-editor 1995–2002) and is international board member of the Cambridge Quarterly of Health Care Ethics. Evert is, as ethicist, a member of the following committees in the Netherlands: CCMO (Dutch Central Committee Research involving Human Subjects); Sanquin, ethics Board; Dutch Society of Huntington Disease; Royal Dutch Medical Society; Ethics board UMC St Radboud, Nijmegen; Federation of Biomedical Societies.

Advertising R L Arrington, Georgia State University, Atlanta, GA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Control The power to bring about in an unavoidable manner the attitudes, beliefs, or actions of a person or group of people. Deception The act or practice of intentionally causing a person or group of people to have false beliefs. Dependence effect The process by which advertisers create new desires in consumers for the products they then supply. Manipulation The process of taking advantage of the desires or wishes of a person in order to bring about an

Advertising and Contemporary Society Like it or not, advertising is a large and ever-expanding part of our lives. In the United States, every day, 12 billion display and 184 billion classified advertising messages pour forth from 1,710 daily news­ papers, billions of others from 7,600 weekly newspapers, and 6 billion more each day from 430 general magazines and 10,500 other periodicals. There are 4,658 AM and 3,367 FM radio stations broadcasting an average of 2,600,000 commercials a day; and 844 television stations broadcast 330,000 commercials a day, redisseminated by 5,000 cable systems. Every day, millions of people are confronted with over 500,000 outdoor billboards and painted bulletins, with 1.5 million car cards and posters in buses, subways, and commuter trains, with 40 million direct mail pieces and leaflets, and with billions of display and promotion items. (Bogart, 1990: 1–2)

More recently, an untold number of ‘infomercials’ are constantly available online. It has been said that each one of us, on average, sees 1 600 ads each day. Such depressing or – as you choose to look at them – gratifying statistics reveal not only the amount of advertising but also its diversity. The amount gets larger every year: ‘‘Just between 1967 and 1986, the number of TV, radio, maga­ zine, and newspaper advertisements disseminated in the United States increased by 133%. The number of TV messages alone increased by 257%.. . .’’ (Bogart, xxvi). We are simply inundated with advertisements. But we do not seem to mind, since many of us have ourselves become walking advertisements, for example, T-shirts with the

action which otherwise would not occur and which benefits the manipulator. Materialism A value orientation that stresses the importance of material goods, financial success, and acquisitiveness. Persuasion The process of changing another person’s beliefs, attitudes, or preferences by rational or emotional means. Puffery A term for the practice in advertising of making exaggerated or fanciful claims about a product.

Nike (or Reebok, Wilson, Brooks Brothers, etc.) logo emblazoned across the front or back. Advertising is big business. According to one source, $133 billion was spent on advertising in the United States in 1990, ‘‘more than the gross national product of all but a handful of nations’’ (Bogart, xvii). At about that time, the ninth largest advertising agency in the country had billings of $1.79 billion! In spite of the fact that no one has been able to give an accurate measure of the impact advertising has on sales, it remains the case that industries, corporations, retail business, and ‘mom and pop’ stores avail themselves of ads in order to bring their products to the attention of the buying public – and, hopefully, increase sales. Big as it is, and as involved as we members of the general public are in it, advertising is one of the most morally questionable and ambiguous practices in contem­ porary society. More often than not, scholars and intellectuals condemn this practice, while apologists for advertising create ads defending it, some of those pub­ lished by the American Association of Advertising Agencies having the appearance of scholarly attempts to refute, point by point, the ‘lies’ and falsehoods told by advertising’s opponents. Advertising has been called ‘‘a very powerful aggression’’ by Marshall McLuhan and ‘‘an instrument of moral, as well as intellectual, miseduca­ tion [which prepares people] for submitting to a totalitarian regime’’ by Arnold Toynbee (cited by Bogart, p. 4). Turning the tables, its apologists have labeled its opponents as ‘misinformed,’ ‘ideologically controlled,’ and worse. No less a personage than Winston Churchill defended the practice of advertising in, as one would expect, bold terms:

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Advertising Advertising nourishes the consuming power of men. It creates wants for a better standard of living. It sets up before a man the goal of a better home, better clothing, better food for himself and his family. It spurs individual exertion and greater production. (Rotzoll et al., 1986)

The general public cannot seem to make up its mind about the moral character of advertising. Public opinion polls always show a divided mind in the populace at large; some, indeed most, of the polls reveal that the majority of people think advertising is ‘dishonest,’ ‘misleading,’ ‘socially damaging,’ or culpable in other ways, and other polls indicate that the majority of people think the adver­ tising business is morally okay ‘for the most part.’ Defenders of advertising usually portray it as a vital cog in the free market system. Its functions are to bring a product to the attention of the buying public and thereby to increase sales. It is a coordinating link between supply and demand. Free market advocates are gener­ ally committed to high ideals of political liberty, and they see the rights of advertisers as nothing less than an expression of citizens’ rights to freedom of speech. But critics of advertising need not be left-wing revolu­ tionaries. Many accept the basic principles of the free market system but see advertising as violating the moral norms presupposed by this very system (e.g., the rights of the informed consumer), or they view advertising as having disutility within the system (in effect, a waste of money). In what follows, we shall concern ourselves with the philosophical, ethical arguments that have been devel­ oped pro and con the practice of advertising and only indirectly allude to economic and political considerations. Most of the philosophical arguments in defense have been made in response to attacks on the advertising practice. Thus we shall begin with criticisms and in each case follow these with rejoinders. Criticisms of advertising fall into three groups: (a) claims that advertising has pernicious social conse­ quences; (b) claims that it involves manipulation or, worse than that, control over members of the buying public; and (c) claims that it is often misleading and deceptive. We begin with (a).

The Social Consequences of Advertising Criticisms The relationship between society and any one of its con­ stituent institutions or practices like advertising is difficult to decipher. Basically we confront a ‘chicken and egg’ dilemma. Is advertising simply a reflection of the social norms and values of society, or is advertising responsible to a large degree part for making our society

what it is? It has been said that the advertisements we are exposed to ‘‘constitute a cultural bombardment with an ideology of acquisitiveness’’ (Waide, 1987: 76). Certainly, ads encourage us to buy, and to buy more and more, and more and more often. They often celebrate the person who owns lots of consumer products. Frequently (e.g., in ads for luxury automobiles) they stress ‘good American values’ like individuality and achievement and go on to correlate the attainment of these values with one’s ability to purchase expensive consumer goods. In a Lexus, for instance, one can ‘take the road less traveled,’ which means that one’s level of success will exceed that of most other people, who cannot afford such an expensive automobile. We are told that we fulfill ourselves by acquiring things and that true individuality is being able to buy things others cannot have. But what here is cause, and what is effect? Is advertis­ ing responsible for the acquisitiveness we encounter almost everywhere in our society? Here is a contrary view: One may build a compelling case that American culture is – beyond redemption – money mad, hedonistic, super­ ficial, rushing heedlessly down a railroad track called Progress. De Tocqueville and other observers of the young republic describe America in these terms in the early 1800s, decades before the development of national advertising. (Fox, 1984: 381; cited by Rotzell et al., 1986)

Do not blame advertising, the apologists cry out, for what is not its fault. Advertising is simply an extension of the cultural values that already exist, and ads do nothing more than express these socially sanctioned goals. One can back away, however, from the excessive claim that advertising is responsible for the hedonism and superfici­ ality of contemporary society and still charge that this practice heavily reinforces these attributes. It sustains them and, arguably, intensifies them. To the extent that we oppose excessive concern with money, consumer goods, and economic progress, we can certainly point a finger at advertising as a contributing cause. Acquisitiveness is wrapped up with a materialistic view of life, one that stresses the importance of material possessions, financial success, and sensations of pleasure and sensual activities. A large proportion of the ads seen in the public media focus on the delights of sex. These ads work by drawing an associative connection between the recommended product and the enhancement of one’s sexual powers or prospects. Seldom if ever do ads cele­ brate the life of modesty and restraint; seldom do they offer for sale products designed to enhance moderation; seldom do they praise self-sacrifice. With the advertising world’s almost exclusive focus on individual success, the virtues of social solidarity, compassion, and kindness are seldom expressed or reinforced – except, perhaps, in

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those highly cynical examples of advertising that show a child offering a soft drink to a hardworking, enormously wealthy, successful, and famous professional athlete. Ads prompt us to be more materialistic – and they gladly show us how to bring it off. Inevitably a practice motivated by a materialistic ethos will project stereotypes that instantiate the defining values of this ethos. The rich corporate executive (who celebrates his ‘independence’ by buying a Cadillac with the Northstar system), the hardworking athlete (who gives it his all, suffers great pain, and comes out, invari­ ably, on top – wearing his Nikes), and the cutely bumbling charmer (who gets his girl, but only because of his American Express card), these are the ‘ideal types’ of American advertising. Women usually do not figure among these ideal types – more often than not they play roles in ads for hemorrhoids, laxatives, sanitary napkins, cleansing detergents, and the like, roles that define them in terms of their suffering and their secondary, supporting position in American life. Watching ads on television is excellent instruction in the personality types and life styles that contemporary Westerners value and to which they aspire. These stereotypes and ideal types throw into relief the failures of our society: someone who cannot afford the Cadillac (almost all of us), or someone who works hard but does not play on the winning team (almost all of us). As the ideal types are celebrated by advertising, the failures are derided – we are told, as it were, not to be or become like that, and the solution to our problems is always the product on display. Such a success–failure dichotomy, one can confidently assert, is unhealthy. It can induce severe psychological insecurities: what if one cannot jump high enough to win, in spite of great effort? What if one cannot afford the luxury car, in spite of working 16 hours a day? In the cultural environment shaped by advertising’s values, it becomes increasingly difficult not to see oneself as a failure if one does not obtain these values. Yet common sense tells us that obtaining them is not always, or even often, just a matter of working hard, wearing the right shoes, or even having an American Express card. Thus the contemporary cultural world reinforced by advertising condemns many of its members to the ignominy of failure and defeat. If we ‘‘ask what kinds of lives are sustained, made possible, or fostered’’ (Waide, 1987) by advertising, we may conclude that in promoting cultural absolutes that are difficult to obtain, and implying negative evaluations of the lives most of us actually lead, advertising does a disservice to the members of society. The finger can also be pointed at the deplorable stan­ dards of aesthetic taste set by advertising. The simple jingle, not a complex form of varied meter and rhythm, sets the standard. To be effective, an ad must be memor­ able, and the simpler it is, the more memorable. At their best, ads are ‘cute’ and amusing, but such ads often

promote an ‘airhead’s’ idea of humor. Often they are ridiculous and repulsive – after all, these two traits corre­ late well with memorability. On aesthetic grounds, ads in general must be given a low score. The phenomenon of ‘indirect information’ should also be noted here. The mere frequency of an ad, and its endless repetition, lead the audience to the conclusion that the product advertised must be good, since otherwise the advertiser would not continue to advertise it. The simplicity of the ad, the repetitiveness of its promotion, are factors that send indirect information to a potential consumer about the product’s success. The simplicity and idiocy of many commercials seem aimed primarily at the ‘brain dead’ among us, and some­ thing like a self-fulfilling prophecy seems to be at work: if you treat people as idiots long enough, they soon become idiots. It is hard to claim that advertising fosters critical thinking, analysis, reflectiveness, or imagination. On the contrary, it often appears to promote a ‘knee-jerk’ response, gullibility, and simple-mindedness. A daily dose of television commercials can make one think in cliche´s and exercise imagination by means of overly sim­ ple, often sentimental, images. One’s affective capacities are also impacted, often in a very unfortunate manner. After the inescapable violence on television has dulled one’s sensitivity, thereby making it difficult to have an emotional response to events not rising to the level of excitement shown on the little screen, the ensuing com­ mercials wreak havoc with other normal sentiments. We may, for instance, find it difficult to develop a sexual or romantic interest in people whose natural attractions do not measure up to the standard set by the stars of com­ mercials. And the value of individual pleasure and success drummed into our heads by most ads can make it increas­ ingly difficult to enjoy the more gregarious sentiments and to appreciate other individuals as valuable in themselves. Special mention should be made of the effects of advertising on children. Not only are children easy prey for persuasive advertising, as we shall discuss, they quickly assimilate the social messages conveyed by adver­ tisements. One writer reports how, as a young girl, she learned to walk ‘correctly’ by watching television com­ mercials. Children also quickly imbibe the materialism and acquisitiveness permeating the ads they view. On a more pernicious level, they become conditioned early on, through many of the toys on display, to a culture in which acts of violence are everyday occurrences. Such are some of the undesirable social consequences that critics find advertising to have. The problems can be posed in terms of explicitly ethical categories: advertising fosters false ideals of self-fulfillment; advertising projects values that rank low in terms of emotional, social, and spiritual richness; advertising is socially divisive; and advertising celebrates the individual over society

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and the community. Utilitarians (who seek the greatest good for the greatest number), Kantians (who stress the importance of duty, reason, and the dignity of persons), self-realizationists (who urge the most complete develop­ ment of human nature), and virtue ethicists (who encourage the development of individual virtues like moderation and social ones like kindness) can join hands in decrying the social consequences of advertising. Rejoinders The main defense against these social criticisms is to reiterate the claim that the values embodied in ads and commercials simply reflect the preexisting values of the buying public. An argument can be given that if the public did not already value personal independence, ‘winning,’ sexual prowess, and the like, associating these features with a product would not enhance the marketability of the product. If the public did not find the ‘simple-minded’ commercials amusing, these ads would not receive such high audience approval ratings. In effect, blaming adver­ tising for the social consequences discussed above is simply ‘shooting the messenger.’ Advertising can also be defended against the above charges by pointing out that no one is being forced by ads to buy a product or to buy into the ethos in which it cloaks itself. ‘Let the buyer beware’ still has some applic­ ability in the marketplace, and advertisers retain the rights of all citizens to express and promote their values, whether or not others agree with them. But the question of whether or not advertising is coercive or simply an individual or corporate expression of values leads to the second set of criticisms of this practice.

Advertising, Manipulation, and Persuasion Criticisms These criticisms embody the claim that in one way or another, and to one degree or another, advertising is a manipulative practice. In order to come to grips with this claim, we need to have in mind a clear conception of manipulation. First, what we might call simple manipula­ tion occurs when one party takes advantage of the beliefs or desires of a second party so as to get this person to act in ways that are in the interests of the first party. Manipulation of this sort usually ignores the interests of the second party, the person manipulated. An older brother, for instance, might manipulate a younger sibling into doing something the brother wants by offering the sibling lots of candy, paying no heed to the fact that the candy is not good for the younger person. In a case of simple manipulation, the manipulating agent uses the subject’s own motivational structure to secure a result

that would otherwise not be forthcoming. Second, more complex and morally problematic practices embody deep manipulation. In such cases, the manipulating agent actu­ ally creates in another person the beliefs or desires that then work to the advantage of the manipulator. The classic case of deep manipulation is brainwashing, in which a manipulator puts thoughts, beliefs, or desires into the mind of a subject and then uses these implanted contents to the manipulator’s advantage (and usually to the subject’s disadvantage). Instances of both simple and deep manipulation raise the question of control. When manipulation occurs, it can appear that our very freedom or autonomy is taken away from us – although to different degrees in different cases. Simple manipulation

A clear and extreme example of simple manipulation is blackmail. The blackmailer manipulates his victim by, say, agreeing to withhold information that would ruin the victim’s much valued or desired career – in exchange, of course, for a large financial payoff. The blackmailer appeals to what the victim wants – a particular career. Given this want or desire and its level of intensity, the disvalue of what is threatened exceeds the disvalue of the payoff, and the victim accedes to the blackmailer’s demands. A far less serious case of simple manipulation would occur if a person manipulated a friend by getting her to agree to join him at a concert (which, as he knows, she would prefer not to attend) simply by appeal to their friendship. This act of manipulation takes advantage of the friend’s feelings and leads her to act in a way contrary to her immediate wishes. Although not nearly as morally contemptible as blackmail or bribery, such manipulation is still troubling. In cases of simple manipulation there is a common pattern. The person manipulated agrees to undertake a course of action. In one sense, this individual ‘wants’ to do what she in fact does; the act is an expression of her overall, hierarchical set of desires (the blackmailed party’s desire for a career is stronger than her aversion to the payoff; a person’s feelings of friendship are stronger than her aversion to going to the concert). In another sense, the manipulated person does not want to do what she does; she would not have done it had she not been manipulated into doing so. Manipulation thus involves a violation (however minor and however subtle) of one’s autonomy, one’s right to do as one pleases. Do we find instances of simple manipulation in adver­ tising? Certainly not all ads are guilty of it. Consider a ‘classified ad’ in which only factual information about the advertised product is provided. A person may read the ad, like what she finds out about the product, and offer to buy it at the advertised price. Here we have a case of one party providing factual information to another about a product that the potential buyer antecedently wants and,

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presumably, can afford. There is nothing morally proble­ matic about such a transaction, at least not in any obvious way. No manipulation has occurred. But consider a common type of television commercial, one, say, that commends the purchase of a luxury auto­ mobile. A young woman new to the workforce may bring to the viewing of this commercial an interest in a new car and a need for one. Given her entry-level salary, what she needs is safe, reliable, relatively inexpensive transporta­ tion. But the female model driving the car in the ad is stunning in appearance, and at the end of the commercial she is met by an equally stunning man. The ad suggests to our viewer that owning this car will make one attractive and lead to amorous results. The young woman runs out to the agency and buys the car in question, signing up for loan payments she can ill afford. In defense of the ad, it might be said that it appeals to the viewer’s actual interests (the woman does want to look more attractive and to meet a handsome man). But given her meager means, her need is for an inexpensive vehicle. The car she buys as a result of the commercial will not satisfy this need – and, of course, may not and probably will not satisfy her desire for glamour and romance! The ad takes advantage of this latter desire and induces her to buy something contrary to her real interests. This is a case of simple manipulation. Manipulation of the above sort is ethically question­ able because of its disutility with regard to the customer’s well-being or happiness. It can also be argued that such advertising is unethical because it infringes on the auton­ omy of the purchaser. By appealing to the young woman’s strong desire for glamour and romance, the advertisement activates feelings in her that often are beyond rational control. Her purchase of the car is not the result of a rational process in which she weighs reasons for buying it against reasons for not doing so. In leading her to bypass the process of rational choice and decision making, the ad violates her autonomy as a person who can, and should, rationally make up her mind about her purchases. Deep manipulation

Let us now consider a case of deep manipulation in advertising. As we have seen, simple manipulation utilizes feelings and desires that exist prior to the ad. In the case of deep manipulation, advertisements create the desires that motivate one to purchase a product. John Kenneth Galbraith is well known for bringing this possibility to our attention. He calls it the ‘dependence effect.’ Galbraith claims that the chief function of advertising is to create the very desires that the advertised product aims at satisfying. As an example, let us take the case of ads promoting suntan lotion and skin bronzing cream. We know that desires for a particular mode of skin coloration vary widely from age to age; in the not-too-distant past, a white, pale complexion was considered desirable for

women. But ads for suntan lotions and bronzing creams have created in many contemporary Westerners a desire for a dark, sun-tanned appearance. Here the advertising audience has been manipulated into wanting a quality that the advertised products will supply. Without the ads, the desire for this appearance would likely not have existed. What is ethically wrong about this scenario? After all, we do want a good tan, and so, given the information provided in the ad for a bronzing cream, we voluntarily buy it. But the appearance of individual consumer auton­ omy is superficial. The problem resides in the deep way in which the consumer’s autonomy has been violated. Advertisements have molded us into potential consumers with certain desires. Unbeknown to us, the magic of advertising has shaped our desire structure. We are no better than puppets controlled by a puppet master, other­ wise known as the advertising agency and the company sponsoring the ad. Hence our autonomy, our right to decide for ourselves what we want and what we pursue, has been eroded. And if we add to our scenario regarding suntan lotion the well-known fact that tanning is hazar­ dous to one’s health, we can also object to ads utilizing the dependence effect in that they often lead us to act in ways detrimental to our well-being. Control

Do cases of simple and deep manipulation amount to control? It has been claimed by many that this is the case. In his popular book The Hidden Persuaders, Vance Packard points to the burgeoning industry of motivational research and notes the belief that many people have in psychology’s ability to control human behavior. B. F. Skinner, the well-known behaviorist, subscribed to such a view. He argued on many occasions that behavioristic psychology is a science of human behavior capable of identifying the laws governing all forms of behavior. And he explicitly noted how advertising makes use of such knowledge in controlling the purchasing patterns of human beings. Skinner’s conclusion was that advertis­ ing practices demonstrate that human freedom is a myth: ‘‘The concept of freedom that has emerged as part of the cultural practice of our group makes little or no provision for recognizing or dealing with these kinds of control’’ (Skinner, 1956: 1058). Advertising reveals how patterns of stimuli generated in accord with the laws of behavior can shape our actions even when we (falsely) think we make purchases as a result of our own voluntary decisions. Far from being free and responsible agents, the argument has it, we are under the control of the advertiser. One particular and highly controversial form of manipulation and control should be mentioned before we leave this area of criticism. This is the case of sub­ liminal control. In this practice an advertiser supposedly sends out signals that boast of the benefits of a product

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but that cannot be consciously processed by the receiver of the signals. These signals go into the subconscious or unconscious mind and play on the motivations found in this subterranean realm. Thus it has been said that movie theaters sometimes broadcast subliminal messages advertising their refreshments, and that department stores encode subliminal signals into their Muzak offer­ ings touting, say, their irresistible cashmere sweaters. Totally without realizing why, the story goes, we run out and buy popcorn and candy, or without realizing what prompts us to do so, we buy a cashmere sweater. Those who believe that subliminal control is found in advertising usually point to unconscious sexual stimula­ tion as the mechanism employed. Print ads are claimed to have embedded in them sexual innuendos or sugges­ tions about the positive sexual effects of the product advertised. Thus it is not, say, our conscious desire for a warm coat that leads us to buy the parka advertised, it is the suggestion coded into the ad that this parka will improve our sex lives that does the trick. The purchase is out of our hands – out of the conscious decision maker’s reach – and in the hands of drives and desires we have little if any control over. That is to say, control is exer­ cised here by bypassing the rational, conscious, reflective aspects of the mind. Insofar as autonomous agents are those who make up their minds on the basis of available information processed rationally, subliminal control overwhelms our autonomy. As one writer has put it, in such cases people act ‘automatonously’ rather than autonomously. If subliminal control exists, it is to be ethically condemned.

Persuasion

The issues we have considered under the rubric of manip­ ulation can also be expressed using the idea of persuasion. To persuade is to convince someone to do or believe something. Often this is a matter of changing someone’s mind or leading a person from a position of indifference to one of interest or commitment to the issue at hand. A person may be persuaded simply on the basis of factual information and logical argument, but as every student of elementary logic knows, people may also be persuaded by invalid forms of argumentation, particularly appeals to emotion. Persuasion can be deemed rational if it limits itself to true claims and valid arguments; if it appeals directly to emotion or feeling, it may well be irrational. To be sure, a physician may use emotional strategies to persuade a person to have an operation, but such emo­ tional persuasion is justified in light of the patient’s real need for the operation. If the emotional appeal is not grounded in real need, or if it is not designed to be processed rationally, it is unjustified. Thus advertise­ ments can be divided into (a) those that limit themselves to factual information and valid arguments; (b) those that

make emotional appeals based on the real needs of the individuals at whom the ads are directed; and (c) those that make emotional appeals that are not grounded in the real needs of the target audience. The first two forms of advertising constitute morally legitimate kinds of per­ suasion, but the third is morally illegitimate. Classified ads for the most part fall into the first category; many public service ads and some ads for commercial products (e.g., smoke detectors) fall into the second. A very large number of mass media ads and commercials seem to fall squarely into the third. Inasmuch as most mass media ads are aimed at the public at large, no assessment of the needs of the members of this public will usually have taken place. Thus the emotive appeals these ads often contain, not being based on the needs of most members of the audience, fall into the morally question­ able category. Once again, the advertising of children’s products merits special attention. Because the cognitive abilities of children are still underdeveloped, ads aimed at chil­ dren are by their very nature emotionally persuasive, many, if not most, of them in an objectionable way. Perhaps all interactions with children appeal to their easily aroused emotions and desires, but some are aimed at improving the children (and developing their rational abilities). Ads for children’s toys and the like seem for the most part aimed only at the improvement of the advertiser’s profits. And many of the ads are for products that are straightforwardly dangerous for children.

Rejoinders Defenders of advertising categorically deny that ads and commercials manipulate and control people. As one man­ ifesto of the American Association of Advertising Agencies puts it: [W]hen was the last time you returned home from the local shopping mall with a bag full of things you had absolutely no use for? The truth is, nothing short of a pointed gun can get anybody to spend money on some­ thing he or she doesn’t want. (Rotzoll et al., 1986: 24)

The truth is, so the defense goes, advertising works when, and only when, it appeals to desires and preferences people have. Many products fail in the marketplace in spite of massive advertising, simply because the buying public did not want the product or did not find it appealing (witness the ‘New Coca-Cola’ debacle). To purchase something one wants or finds attractive is a classic instance of voluntary behavior. One is forced to do something against one’s will only when one is coerced into doing what one does not want to do. According to advertising’s defenders, this sel­ dom if ever happens in advertising.

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It is possible to develop a more philosophical formula­ tion of the above defense. Coercion or control by advertising, it can be said, occurs if a purchaser acts on an advertising-induced desire she does not want to have. This state of affairs needs to be understood in the follow­ ing way. In addition to our first-order desires (for particular objects) and first-order feelings (for particular persons or things), we have any number of second-order desires: desires or feelings about first-order desires and feelings. For instance, a person may wish that she did not have a desire to smoke. If, nevertheless, she continues to smoke, she is acting against her own will, being ‘in the grip’ of an uncontrollable first-order desire. If a person does not disapprove of her desire to smoke, she is not acting against her will in doing so. Inasmuch as most of us want the products we purchase (as a result of advertise­ ments) and most of us have second-order desires approving of these first-order wants, our response to advertising is perfectly voluntary. To claim that behavior is controlled is to deny that it is voluntary. But an agent acts voluntarily when she acts on the basis of motives approved by her own second-order desires. In such cases – which include most purchasing activities influenced by advertising – no control exists. With regard to subliminal advertising, it suffices per­ haps to say that the reality of this type of control is very much in doubt. In fact, the very idea of unconscious desires is not one that currently commands widespread respect in the field of psychology, as it once did in the heyday of Freudianism. Advertising apologists have also denied that deep manipulation occurs in advertising. Galbraith is simply wrong, they claim, in thinking that advertising creates desires.

giving her candy and influencing an adult to purchase a car she does not need. The child is unable to reach a decision based on a consideration of relevant facts (the effects of eating candy). The young woman in our previous example can be presumed to know the relevant facts about her financial status and to be aware that she cannot afford a luxury automobile (unless, perhaps, she cuts back on other expenses, or gets a loan from her parents, or pursues any of a number of other options that may be available to her). Thus being an adult she can be presumed responsible for her own decisions. If her desire for glamour is great and if she is aware of this desire and has no second-order aversion to it, she is hardly being manipulated. If in purchasing the luxury car she does something foolish, she, not the adver­ tising agency, has to take responsibility for this. Furthermore, how do we know that advertising leads people to purchase things inconsistent with their needs? It is possible to ascertain needs only when it is possible to make a clear distinction between subjective and objective opinions about the matter at hand. We adults can pro­ nounce on the needs of children in ways that may conflict with their preferences; a physician can pronounce on our medical needs in ways that may conflict with our desires. In both cases we distinguish the objective point of view from the subjective one. But can anyone pronounce on the social and emotional needs of the adult woman and pro­ claim that what she needs is different from what she wants? Does anyone have a more objective point of view of her life than she does? Although some psychotherapists may pretend to occupy this superior perspective, a degree of skepticism is in order.

Advertising and Deception Criticisms

Of course, people didn’t desire the automobile before it was invented. However, they did desire mobility, and once the automobile was invented many thought it was a good means to mobility.. . . Men couldn’t have desired Aramis before that scent was concocted, but they desired to attract women, and when Aramis became available many thought Aramis was a good means to attract women.. . . In general, then, advertising does not create desires; given a certain desire, the advertiser brings to the consumer’s attention a product that may satisfy that desire. (Collins, 1992: 425)

We have preexistent general desires (for mobility, comfort, sexual attractiveness, etc.), and advertising at most gen­ erates desires for particular products thought to satisfy these general desires. Accordingly, the rejoinder has it, there is no deep manipulation going on here. What about simple manipulation? Does not advertising sometimes lead us to purchase products we do not need? Defenders of the practice may argue that it is unfair to draw an analogy between manipulating a small child by

Puffery

Let us turn now to the third set of criticisms aimed at advertising, the charge that many advertisements are deceptive. One thing is certain: ads often do not stick to the cold, unvarnished facts. When an ad for an automobile says, ‘‘Everybody’s talking about the new Starfire,’’ it is obvious to any reasonably informed person that this sim­ ply is not true. Likewise, the ad for women’s underwear that states, ‘‘A woman in Distinctive Foundations is so beautiful that all other women want to kill her,’’ is clearly overstating the facts. So if truth be our measure, much advertising falls short of the mark. But before we reach the hasty conclusion that ads such as the two just cited are deceptive and morally suspect, we need to recognize them for exactly what they are. They are not intended to be taken literally, and almost no one would take them that way. Even the advertiser, who may hope that they will be taken literally, does not actually anticipate that they will be. The ads above are examples of what in the

54

Advertising

advertising business is called puffery. Puffery is the prac­ tice of making exaggerated, highly fanciful, or suggestive claims about a product or service with the intent of con­ veying the impression that the product or service is highly desired and/or highly desirable. While most adults realize that not everybody is talking about the Starfire, the ad does leave one with the believable impression that lots of people are talking about it, that is, find it desirable. Is this true or false? It’s hard to say, but given the flexibility of ‘lots,’ it may well be true. And some women may entertain murderous impulses toward those wearing Distinctive Foundations. So once we identify the intentions behind instances of puffery, it is more difficult to claim that such forms of advertising are intrinsically deceptive. Puffery is a matter of bragging, and bragging is not something inherently wrong from a moral point of view. Although what the braggart says is not literally true, we usually do not accuse this person of lying or deliberately disseminat­ ing false information. Bragging is not that kind of speech act; neither is puffery. Half-truths

But putting puffery aside, there are other advertising techniques that more legitimately arouse moral suspicion. An example is the case of half-truths. Advertisements always emphasize the positive, valuable characteristics of a product; never are the negative characteristics iden­ tified. In omitting the negatives, an ad expresses a halftruth. The most egregious instances of this fault occur in ads for products that are well-known to have deleterious effects on one’s health or safety. Ads for cigarettes stress the enjoyment one receives from smoking and the social status it (allegedly) conveys; until required by the govern­ ment, none of the statistics about its harmful effects were revealed in the manufacturers’ ads. Automobile designs have been known by the manufacturer to have mechan­ ical problems, but these are not identified in the literature or sales talk. Assuming that the manufacturers are aware of these negative features (something they always deny), telling only part of the story irresponsibly conveys a dangerously incomplete picture of the product. In pre­ senting a half-truth, a manufacturer does not lie about its product or make a false claim, but it is nevertheless morally culpable for concealing its harmful features. The advertising industry sees itself as providing informa­ tion about products. If this information is to create informed consumers, the information needs to be as com­ plete as possible, particularly with respect to harmful or negative product features. Misleading images

In addition to purveying half-truths, the advertising industry not infrequently engages in other misleading forms of promotion. Instances of recent Volvo ads are notorious for an alleged form of deception involving

misleading images. One ad showed a Volvo holding up a 6-ton truck that had been lowered onto it, testifying, supposedly, to the tremendous strength of the car’s tires and suspension. In fact, the car was held up by jacks hidden behind the tires. Volvo claimed the ads were intended to show the strength of the roof and body of the car, not that of the tires and suspension. Nevertheless, the ad can be seen as conveying the misleading impres­ sion that the tires and suspension would hold up the car under these conditions. In cases such as this, no outright statements are being made: Volvo does not say that the tires and suspension hold up the car. Thus, again, the ads do not constitute outright lies. But the images used in them may convey very definite impressions to the normal viewer that are incorrect. In using such misleading forms of communication, advertisers, it is claimed, are guilty of deception. The precise kind of moral culpability in a case like this depends on the intentions of the advertiser. If a company intends to give a misleading impression of its product’s nature, it is guilty of deliberately deceiving the buying public. If it does not intend to do this but nevertheless conveys false information about its product, it may still be liable, in accordance with provisions of so-called strict liability, if any damage is done as a result of this mislead­ ing information. Cases of deliberate deception are more serious morally and legally than cases of strict liability, but both are morally, and sometimes legally, culpable.

Deception

What exactly is deception? Carson, Wokutch, and Cox have proposed the following definition: ‘‘x deceives y if and only if: x causes y to have certain false beliefs (b) and x intends or expects his actions to cause y to believe b’’ (Carson et al., 1985: 98). The virtues of this definition, according to its authors, are that (1) it indicates that an ad ‘‘must [itself] be the cause of one’s misinformation or lack of reasonable knowledge,’’ (2) it allows for deceptive ads aimed at children, since it does not require that an ad must mislead ‘a reasonable man’ in order to be deceptive, and (3) it stresses the intent to deceive as a necessary condition of deception. Carson, Wokutch, and Cox grant that additional standards may be needed in order to pass legal and moral judgment on advertisements. Some would argue that among these additional standards (at least for advertising aimed at adults) is the ‘reasonable man’ stan­ dard: an ad is deceptive not if it misleads just anyone (an ignorant person, say) but only if it misleads a person who has a reasonable amount of knowledge sufficient to dis­ criminate obvious examples of false claims. Thus a person knowledgeable of automobiles might still be misled by the Volvo ads, because arguably it would take more than the knowledge of the reasonable adult to identify the false claims suggested by these ads.

Advertising 55

Carson, Wokutch, and Cox point out that the American Federal Trade Commission has enacted stan­ dards for deception that require that for an ad to be found deceptive, it must not only have a capacity to mislead but also cause harm to the reasonable consumer. This regu­ latory edict raises the question of what exactly constitutes harm. From some ethical points of view, misleading a person – through lies, false promises, half-truths, or sug­ gestive images – is itself a form of harm, a failure to recognize the consumer as a person of value in herself (accompanied by an interpretation of the consumer sim­ ply as a means to the end of the advertiser). Other ethical systems might require that an ad cause a person physical or psychological pain as a condition for harming that person. And there are intermediate positions that would recognize as harm the undermining of a general atmo­ sphere of trust, even when no specific individual suffers as a result of this undermining. Clearly, these different ethi­ cal systems will evaluate differently the moral status of misleading advertisements. Rejoinders Defenders of advertising point out that it is illegal to lie or make false claims in advertisements, and they note that very few if any ads actually do so. They also urge us to reflect on the likelihood that in a highly competitive market, false claims on the part of an advertiser will immediately be identified by a competitor (but Alan Goldman has pointed out that there have been highvisibility cases in which this did not occur). And they argue that the ‘reasonable man’ standard for truth in advertising allows for half-truths: any reasonable person, they claim, will realize that an advertiser only focuses on positive attributes of its product. The reasonable person must be presumed to have the responsibility to investigate any negative features the product may have. No one, however, defends a manufacturer’s deliberate attempt to ignore features of a product known to be dangerous. But legislation and the mechanics of the marketplace are sufficient, the argument goes, to reduce incidents of this type to a minimum. These, then, are some of the ethical arguments pro and con advertising. If we put them all together and sum up the results, what do we get? Is advertising ‘‘the single most value-destroying activity of a business civilization’’ (Heilbroner, 1985: 71–76) Or is it simply a free market

practice whose ‘‘goal is the dispensing of information important to all consumers’’ (Brooks, 1985: 8) The reader must decide. See also: Consumer Rights; Corporate Responsibility; Corporate Ethics, Reputation Management.

Further Reading Bogart L (1990) Strategy in Advertising, 2nd edn. Lincolnwood, IL: NTC Business Books. pp. 1–2. Brooks F (1985) Departing LEAP praises program The 4A’s Washington Newsletter (April): 8. Washington, DC: American Association of Advertising Agencies. Carson T, Wokutch R, and Cox J, jr. (1985) Persuasive advertising, autonomy, and the creation of desire. Journal of Business Ethics 4: 98. Collins C (1992) In defense of advertising. In: Snoeyenbos M, Humber J, Almeder R (eds). Business Ethics. rev. edn., p. 425. Buffalo, NY: Prometheus Crisp R (1987) Persuasive advertising, autonomy, and the creation of desire. Journal of Business Ethics 6: 413–418. De George RT and Pichler JA (eds.) (1978) Ethics, Free Enterprise, and Public Policy. New York: Oxford University Press. Donaldson T and Werhane PH (eds.) (1996) Ethical Issues in Business, 5th edn. Upper Saddle River, NJ: Prentice–Hall. Fox S (1986) The Mirror Makers. New York: William Morrow and Co. p. 381. Goldman A (1984) Ethical issues in advertising. In: Regan T (ed.) Just Business, pp. 235–270. New York: Random House. Heilbroner RL (1985) Advertising as agitprop. Harper’s (January): 71–76. Iannone PA (ed.) (1989) Contemporary Moral Controversies in Business. Oxford: Oxford University Press. Kirkpatrick J (1994) In Defense of Advertising: Arguments from Reason, Ethical Egoism, and Laissez-Faire Capitalism. Westport, CT/London: Quorum Books. Macklin R (1982) Man, Mind, and Morality: The Ethics of Behavior Control. Englewood Cliffs, NJ: Prentice Hall, Inc. Regan T (ed.) (1984) Just Business. New York: Random House. Rotzoll K, Haefner J, and Standage C (1986) Advertising in Contemporary Society. Cincinnati, OH: Southwestern Publishing. Schudson M (1984) Advertising, the Uneasy Persuasion: Its Dubious Impact on American Society. New York: Basic Books. Skinner BF (1956) Some issues concerning the control of human behavior: A symposium. Science 124: 1058. Snoeyenbos M, Humber J, and Almeder R (eds.) (1992) Business Ethics, rev. edn. Buffalo, NY: Prometheus. Waide J (1987) The making of self and world in advertising. Journal of Business Ethics 6: 73–79. Werhane PH and Freeman RE (eds.) (1997) The Blackwell Encyclopedic Dictionary of Business Ethics. Oxford: Blackwell Publishing.

Biographical Sketch Robert Arrington is professor emeritus of philosophy at Georgia State University in Atlanta, Georgia.

Affirmative Action E Frankel Paul, Bowling Green State University, Bowling Green, OH, USA

ª 2012 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, Volume 1, pp 63–80, ª 1998 Elsevier Inc., with revisions made by the Editor.

Glossary Affirmative action A term with various interpretations; it signifies policies intended to promote the interests and welfare of individuals from racial and ethnic minorities, and women, in order to redress the lingering effects of past discrimination. Affirmative action plan A yearly plan required of all but minor federal contractors (including companies and higher educational institutions) establishing specific goals for the hiring or admission of individuals from underrepresented minorities or women. These plans may also result from a court order, a consent decree ending a lawsuit, or as a voluntary effort to assist members of groups that have been discriminated against. Black Codes Laws that were passed immediately after the Civil War by southern White landowners to make the new freedmen’s economic condition as nearly like slavery as possible. Rights to land ownership and free movement were curtailed, and many Blacks were faced with the choice of signing disadvantageous yearly employment contracts with their former masters, or going to jail. Civil Rights Act of 1964 The most significant civil rights act since Reconstruction; the act banned discrimination in employment, in public accommodations, and in programs receiving federal funds. Compensatory (backward-looking) arguments The principle that in formulating social policy, rectificatory justice requires that the past be taken into account, and that past injustices be recompensed. Consent decrees and court orders Devices utilized by the government through the courts to get employers and government agencies (such as police divisions or fire departments) to adopt and implement affirmative action plans. A consent decree is an agreement reached between the government and an accused discriminatory employer to cease discriminating and to implement an affirmative action plan. A consent decree is reviewed by the presiding judge. A court order accomplishes the same objective through a direct order by a judge upon motion of the government. Consequentialist (forward-looking) arguments The principle that in formulating social policy, distributive

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justice involves examining the likely future benefits and costs of adopting a policy. EEOC Equal Employment Opportunity Commission, the federal regulatory agency created by the Civil Rights Act of 1964 to receive complaints of employment discrimination from workers throughout the United States, to assess the merits of such claims, and to facilitate a conciliation agreement to resolve the matter amicably, or (after 1972) to file a lawsuit on the complainant’s behalf. Goals and timetables The key elements of an affirmative action plan that establish the number of new hires from protected groups that will need to be employed within a designated time period. Jim Crow Although the provenance of this term is unclear, it came to stand for the segregation of Blacks in the South, their ostracism to inferior accommodations on railroads, steamboats, parks, schools, lunch counters, lavatories, housing, and other public places, and the denial to them of the franchise. Segregation was written into the law books in southern states during the last 20 years of the nineteenth century and in the first decade of the twentieth century. Merit A term often used by opponents of affirmative action to contrast their ideal of selection by individual achievement, with selection by preferences for protected-group members. OFCCP Office of Federal Contract Compliance Programs, the unit within the United States Labor Department that oversees the letting of federal contracts and ensures that all contractors abide by affirmative action guidelines in their employment practices and meet the ‘goals and timetables’ in their affirmative action plans. Pattern or practice cases An enforcement mechanism based on the Civil Rights Act of 1964 which gave the Attorney General the right to file suits against employers who appeared to practice systematic employment discrimination. This power was aimed at extirpating discrimination in large companies and giving public visibility to the antidiscrimination cause. Amendments to the act passed in 1972 gave this enforcement power to the EEOC, which originally had only informal powers of conciliation.

Affirmative Action

Preferences In its weaker form, preferences under affirmative action plans mean that when two applicants for employment or college admissions are both highly and equally qualified, the person from the discriminated-against group ought to be selected. In its stronger version, a qualified protected-group member should be chosen over a more qualified applicant from a non-protected group. Protected group The language of the Civil Rights Act of 1964 prohibited discrimination against all people, but the principal purpose of the act was to remove impediments to the advancement and civil liberties of African Americans. Over the years several other distinct groups have come to enjoy special protection under the act because of their legacy of discriminatory treatment. The list of protected groups usually includes African Americans, Hispanics, Asians and Pacific Islanders, and Native Americans. Discrimination on the basis of sex was also banned in the act, and women also became a protected group. Quotas A disputed term, in that where advocates of affirmative action see benign ‘goals and timetables’ to advance the prospects of members of

Affirmative action is an attempt by society to accelerate the advancement of members of racial, ethnic, and gender groups that have suffered extreme forms of discrimination in the past. In the United States, affirmative action pro­ grams began in the late 1960s and came to play a prominent role in most hiring, promotion, and firing decisions and in college admissions by the following dec­ ade. Affirmative action officers are employed by virtually all federal and state government agencies, by institutions of higher education, and by large corporations. Their role is to ensure that employers implement affirmative action plans and make all major employment decisions in conformity with federal and state guidelines against discrimination. Although our discussion will be confined mostly to the United States, policies similar to affirmative action have been utilized by other countries to facilitate the betterment of groups victimized by discrimination or economic disadvantages. In countries as disparate as Sri Lanka, Malaysia, Fiji, India, and Nigeria, group preferences in education or employment are practiced. While minority groups are the usual beneficiaries of group preferences, in Sri Lanka and Malaysia, majority populations receive preferences in order to overcome the economic dominance of a highly successful minor­ ity group.

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disadvantaged groups, opponents see malign quotas that limit the opportunities of other individuals and that divide the population into hostile and competing factions. Reverse discrimination A charge frequently made by opponents of affirmative action who argue that employment, college selection, and government contracting policies that favor Blacks, other minorities, and women are themselves discriminatory because they treat unfairly young White men who themselves are not responsible for the injustices of the past. Segregation See Jim Crow. Title VII The section of the Civil Rights Act of 1964 that bans discrimination in employment based on a person’s race, color, religion, sex, or national origin. Underrepresented or underutilized In a company, an underrepresented group is one in which the number of people employed from that group is less than their proportion in the surrounding labor market (or in a particular profession). In university admissions, correspondingly, an underrepresented group is any protected group that has been excluded or that has suffered discrimination in admissions in the past.

The Controversy In its original understanding, affirmative action programs would open up employment opportunities to all without regard to race, color, or sex. Artificial barriers to advance­ ment – such as classified advertisements in newspapers that distinguished female from male jobs, and union and employer practices that excluded African Americans from all but the lowest job categories – would be eradicated. Jobs would be widely advertised, especially in outlets likely to be received by women and minorities, and employers would aggressively seek out qualified appli­ cants from disadvantaged groups. Shortly after its inception, affirmative action took on a more expansive connotation. Opening jobs and college admissions to all on a color-blind, equal basis, would not solve the problem of racism and sexism quickly enough, many influential social thinkers and government officials argued, because the victims of discrimination were ham­ pered at the starting gate as the result of opportunities denied in the past. Affirmative action, if it were to be successful, would have to grant preferences to those han­ dicapped by discrimination. In addition, there would have to be written affirmative action plans with hiring and promotion ‘goals and timetables’ for employers to attain. These plans would also facilitate the monitoring of

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Affirmative Action

progress by courts and government antidiscrimination agencies. The initial rationale for affirmative action was to ame­ liorate the lingering effects of slavery and the discrimination that followed emancipation. Racial animus toward Blacks since the Civil War has taken many guises. The Black Codes tried to reduce the manumitted slaves to an economic condition akin to the slavery they had just left. Radical Reconstruction, imposed by northern Republicans in Congress, repealed these early attempts at re-subjugation. However, when the armies of the North finally departed from the last two formerly Confederate states, South Carolina and Louisiana, in April of 1877, the South reimposed restrictions on the intermingling of the races by segregating them in public places, and confining Blacks to the least desirable accommodations. This regime of segregation became known as Jim Crow. After Blacks in the 1960s received affirmative action benefits, other minority groups pleaded their cases for inclusion in these programs as ‘protected groups.’ They cited their own legacies of discrimination, and today many groups, including Asians, Hispanics, Native Americans, Eskimos, and Aleuts, are beneficiaries of var­ ious affirmative action programs. Women, too, enjoy the protection of these programs. The case for affirmative action, however, has always been strongest when the descendants of the southern bondsmen are its beneficiaries. Affirmative action, in its stronger, preferential form, has been a highly controversial tool, and its critics have not relented over the ensuing decades. If preferences are given in college admissions, hiring, and promotion to minorities and women, and if opportunities for advance­ ment are not infinitely expansible, then some group must lose out if others are granted preferences. This latter group is comprised mostly of younger White males in the early stages of their working lives. The critics contend that this is unfair, because those who pay the cost are largely blameless for the injustices of the past when they were not yet living. Scholars who criticize affirmative action view it as tantamount to reverse discrimination. Discrimination is discrimination whether it is practiced for benign or malevolent reasons, they contend. These critics do not see how committing a second wrong, this time against young White males, can vindicate the origi­ nal injustice against Blacks. Proponents of affirmative action are no less persistent. For them, any adverse impact on White males is consi­ dered to be the unfortunate byproduct of finally dealing with America’s racist and sexist past. If younger White males suffer setbacks to their careers when minorities or women are hired or promoted ahead of them, these set­ backs are viewed as merely temporary and incidental. White males unjustly enriched themselves for centuries in America at the expense of African Americans, women, and other aggrieved minorities. Young White males today

are the spiritual heirs of those that perpetrated injustice, and it is only fitting that they should cede some of their undeserved social and economic advantages, the advo­ cates argue. Thus, the debate over affirmative action both in the country at large and among moral philosophers is funda­ mentally over justice. Is society justified in rectifying past injustices by granting preferential treatment to the des­ cendants of those unjustly treated? How much ought majority-group members sacrifice today in order to recompense the descendants of African slaves and other minorities? How extensive and how long must prefe­ rences be retained before injustice has been vanquished? Injustice and how to eradicate its effects will be discussed from a moral perspective later, but first, let us see how affirmative action developed as a social policy.

Affirmative Action as Public Policy The Civil Rights Act of 1964 The Civil Rights Act of 1964 was the culmination of an extraordinary effort by civil rights groups to pass the first truly significant national legislation to ameliorate the legacy of slavery in the United States in nearly a century. Legislation and constitutional amendments (the Thirteenth, Fourteenth, and Fifteenth) enacted in the decade following the Civil War (1865–75) had ostensibly guaranteed free­ dom and equal rights of citizenship to the emancipated freedmen. These well-intentioned devices, often under­ mined by the Supreme Court, had largely failed to stem the abuses of legality and the social opprobrium that a century later still attached to being Black, especially in the southern states. Passed by Congress in the wake of riots and protests in the South and the assassination of President Kennedy, the Civil Rights Act of 1964 would have far-reaching effects in transforming race relations, if not always improving them to the extent anticipated by its drafters. The act sought to end the infamous Jim Crow practices in the South that excluded African Americans from White pub­ lic schools, from exercising their franchise, from intermingling with Whites in public places such as hotels, restaurants, and railroad cars, and even from using the same public lavatories and drinking fountains. Various sections of the Civil Rights Act addressed the most egregious inequities. Title I struck at barriers to Blacks’ voting in federal elections in the South, barriers that had been erected in the late nineteenth and early twentieth centuries to solidify the Democratic Party’s dominance by eliminating the Black, predominantly Republican vote. Henceforth, literacy tests, unless required of everyone, would be prohibited. The subse­ quent Voting Rights Act of 1965 would further enlarge federal oversight of elections in the South. Title II banned

Affirmative Action

discrimination in places of public accommodation – such as hotels, restaurants, theaters, movie houses, and sports arenas – thus eliminating Jim Crow’s most visible and humiliating badges of inferiority. Title IV aimed at imple­ menting the famous Brown v. Board of Education (1954) Supreme Court decision outlawing segregation in the public schools that, despite the passage of 10 years, had barely produced any integration in the South. In Title VI discrimination was also prohibited in all programs receiv­ ing federal assistance in the form of loans, grants, or contracts. Title VII as originally crafted proscribed dis­ crimination on the basis of race, color, religion, sex, or national origin by all employers with 25 or more workers (reduced to 15 by amendment in 1972), employment agencies, and labor unions. Amendments to the original act enacted in subsequent years extended Title VII’s protection to employees of state and local governments, and to most federal workers. Antidiscrimination laws pro­ liferated over the years since the enactment of the 1964 Act. In addition to race, sex, color, religion, and national origin – categories covered in 1964 – protection against employment discrimination is now provided for those over the age of 40 (enacted in 1967), for pregnant women (1978), and for the disabled (1973 for federal employees and 1990 for the private sector and state and local governments). Over the years, Title VII has generated a tidal wave of complaints of discriminatory labor practices to the Equal Employment Opportunity Commission (EEOC; the agency established by the Civil Rights Act to receive and investigate such complaints) and its sister agencies in the states. During the 1990s, in particular, the EEOC struggled with huge backlogs of complaints waiting to be investigated. Employment discrimination cases in the courts have also proliferated, with no letup in sight after more than three decades. The Emergence of Affirmative Action The conception of justice held by the supporters of the Civil Rights Act of 1964 embraced equality before the law, equal rights of citizenship, and equal treatment in the public domains of daily life, principally the schools, stores, restaurants, hotels, and all forms of transport. From the congressional floor leaders who guided the act through Congress, to the northern Democratic and Republican congressmen and senators who voted for it, and to the civil rights groups that worked so tirelessly for its enactment, justice as equality of rights before the law was the common understanding. The overriding convic­ tion was that people should be treated on the basis of their own individual merit, regardless of irrelevant qualities of skin color or heritage. This conception was deeply indi­ vidualistic, for it regarded people as individuals rather than as representatives of discrete groups without

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common bonds of understanding. In banning employment discrimination the wording of the act’s Title VII is indi­ vidualistic: ‘‘It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s race, color, religion, sex, or national origin’’ (emphasis added). Such individualistic language is mirrored in other sections of the act. The Supreme Court revisited the hostile envi­ ronment sexual harassment issue again in 1993, in Harris v. Forklift Systems, Inc. (510 U.S. 17). The Court tried to illuminate its ‘‘severe or pervasive’’ criteria, first articu­ lated in Meritor v. Vision. While the victim need not prove psychological harm from the alleged harassment, psycho­ logical effect should be one factor that courts consider in assessing sexual harassment. Other factors, the Court suggested, could include the frequency of the conduct, severity, whether it is threatening or humiliating, or merely offensive, and whether it unreasonably interferes with work performance. In addition to the victim’s per­ ception that the environment was abusive, the Court blended an objective test: that a reasonable person would consider the environment abusive, as well. Within the first few years after the passage of this seminal act, however, this consensus on the ultimate goal of achieving a color-blind society quickly eroded. If progress in ending employment discrimination needed to be quantified, then employers would have to identify their workers by race and sex. Civil rights groups, so long opposed to employment applications that required photographs or other devices for identifying one’s race in order to discriminate against Blacks, and with a resound­ ing victory just in hand, found themselves acquiescing to counting by race in the workplace. Quotas for university admissions and employment – so detested by those denied admission for discriminatory reasons and despite sterling records – became acceptable in the form of numerical ‘goals’ to benefit members of groups formerly proscribed. The Republican Senate minority leader, Everett Dirksen, had tried to forestall this course by proposing a friendly amendment to Title VII that was intended to prevent the government from requiring employers to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group, on account of an imbalance which may exist with respect to the total number or percentage of any race, color . . . in compar­ ison with the total number or percentage of persons of such race, color . . . in any community or in the available workforce in any community.

Although the bill’s principal supporters in the Senate agreed to the amendment, they thought it unnecessary, and assured their colleagues that no one intended to

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impose quotas or demand preferential treatment. History would soon prove Senator Dirksen’s prescience. Executive agencies, the President, and the courts, all frustrated by the obduracy of discrimination, sought more effective means of guaranteeing entry to the outcasts. They felt that the individual rights to nondiscrimination, guaranteed by Title VII, were not effective enough, and certainly not quick enough to quench their thirst for justice, still a century late in coming. Preferences and goals might succeed with greater rapidity than the indi­ vidualized focus on the discriminatory employer that the Civil Rights Act targeted. For many who found the act’s enforcement provisions too nebulous, because they were too focused on errant employers, remedying societal dis­ crimination with a more effective instrument seemed to be a necessity. Although the act’s sponsors had insisted that they did not wish to hold particular employers responsible for the societal discrimination that had denied Blacks the education and job opportunities that would make them truly competitive with Whites, many civil rights advocates soon recognized that such an approach might be ineffective, and certainly would be slow to achieve results. Perhaps, the strongest argument for some form of affirmative action at the time was the sub­ stantial gap between White and Black test scores, a gap that handicapped Blacks in competition for college admissions as well as in pursuit of many types of employ­ ment where tests were employed to judge candidates. The intractability of this gap, and its persistence even after several decades of affirmative action programs, is still a deep concern to those desirous of remedying the injus­ tices of the past. The Role of Federal Enforcement Agencies Very shortly after its creation, in the summer of 1965, the Equal Employment Opportunity Commission deter­ mined that more aggressive measures needed to be taken than the Civil Rights Act seemingly anticipated. President Lyndon Johnson, who as Vice President had been in charge of a civil rights committee set up by President Kennedy, but without enforcement powers or congressional approval, understood the ineffectiveness of past presidential antidiscrimination efforts dating back to the administration of Franklin D. Roosevelt. He too wished to engage in more aggressive enforcement. Executive Order 11246

Executive Order 11246, issued by President Johnson in 1965, marked the true beginning of ‘affirmative action’ as a national imperative, although the term itself can be found, bearing a different connotation, in the Civil Rights Acts and in an earlier Executive Order of President Kennedy’s. Johnson’s order, as amended over the years, charges the Secretary of Labor with ensuring

nondiscriminatory employment practices and affirmative action by all federal contractors who do more than $50,000 in business annually with the federal government. The Office of Federal Contract Compliance Programs (OFCCP), within the Labor Department, is in charge of implementation. The Philadelphia Plan

The defining moment for affirmative action in federal contracting came in the Nixon Administration, when in 1969 the Secretary of Labor resuscitated a plan for over­ coming barriers to the employment of Blacks in some of the construction trades in Philadelphia. The plan had been floated 2 years earlier by President Johnson’s labor department as the Philadelphia Plan, an attempt to imple­ ment Executive Order 11246, but the plan had been declared illegal by the Comptroller General, whose func­ tion it was to oversee federal expenditures. The revised plan, slightly reconfigured to overcome the bidding irre­ gularity first flagged by the Comptroller, required would-be contractors to agree to an affirmative action plan that initi­ ally set goals for minority hiring at 4–6%, increasing to 20% over 4 years. Contractors who failed to meet their goals would have to demonstrate a ‘good faith effort’ to comply. The plan prohibited contractors from discriminat­ ing against anyone in pursuit of these goals. Not surprisingly, the Philadelphia Plan evoked consi­ derable controversy. Critics saw it as nothing more than quotas, which could only be met by preferential treatment, precisely the mechanisms that Dirksen’s addition to the Civil Rights Act was designed to forestall. The Comptroller again found the plan defective. Contractors would necessarily have to hire by race to meet their obli­ gations under the plan, he argued, and this is precluded by Title VII’s call for nondiscrimination in hiring and its ban on quotas and preferences. This time his objection proved to no avail, as Nixon’s Attorney General, John Mitchell, declared the plan permissible. The Attorney General offered an argument that would be repeated many times in the coming years: that the plan did not violate the Civil Rights Act because it only required a broadening of the recruitment pool, not impermissible quotas or preferences. An attempt in the Senate to block the plan and uphold the Comptroller’s position failed. The Office of Federal Contract Compliance Programs

Since 1971, OFCCP has enforced essentially the same affirmative action rules. Federal contractors must file an annual utilization analysis. If underutilization of pro­ tected minorities or women is found, according to a complicated eight-factor analysis that basically compares the composition of the surrounding workforce to the employer’s workforce, contractors must establish ‘goals and timetables’ to remedy any disparities. (In the wake

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of a 1995 Supreme Court decision that tightened stan­ dards for preferences in federal contracting, OFCCP indicated that the eight-factor test may be revised to include fewer factors.) Those contractors who fail to comply can lose their contracts and can be barred from bidding on future contracts, although these penalties have been rarely levied. The Equal Employment Opportunity Commission

While OFCCP is limited to combating discrimination by federal contractors, who employ roughly 21% of the United States’ workforce, the Equal Employment Opportunity Commission has a wider purview. Federal agencies and all but the smallest employers (or those filing with OFCCP) must file annual reports that divide their employees by race and sex. When complaints are received by the agency against an employer, the agency investigates, and then attempts to reach a conciliation agreement with the employer, and if that fails legal action can be taken by the agency or the worker can file a suit. Conciliation agreements may include ‘goals and time­ tables’ or they may be imposed against refractory businesses by court order or consent decree. The Justice Department’s Civil Rights Division

The Civil Rights Division of the Justice Department is the third major enforcement agency for combating employ­ ment discrimination. The division pursued many ‘pattern or practice’ cases, suing employers who exhibited syste­ matic discrimination in their employment practices. Many successful suits were brought against police agencies, fire departments, state universities, local and state govern­ ments, and other recipients of federal aid. These suits resulted in consent decrees or court orders that established affirmative action hiring and promotion goals as the remedy for past discrimination. The high-visibility cases litigated by the division sent a message to employers everywhere that the federal government would actively pursue violators of the antidiscrimination laws. Affirmative Action in the Courts The courts of the United States, and most influentially, the Supreme Court, were instrumental in validating affir­ mative action, for the courts heard the charges brought by the various enforcement agencies, accepted their inter­ pretations of the civil rights laws for the most part, and approved their affirmative action remedies. This approval, especially in the Supreme Court, came at a steep price in controversy, for these affirmative action cases as a group were the most contentious and fractious that the Court would ever decide. In society at large, by the mid-1970s, affirmative action aroused passionate dis­ pute, and the Court mirrored that division, sometimes in acrimonious dissents.

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From the first affirmative action case that it heard in 1978 to the cases of the 1990s, it is a rare case that has elicited anything approaching clearly drawn majority and minority opinions. Rather, the norm is for numerous opinions for the majority, for the minority, and for frac­ tured voting, because justices often cannot bring themselves to share more than a few sections of their colleagues’ opinions. Without clear judicial guidance from the Supreme Court, the lower courts have cobbled together decisions that often conflict with each other from circuit to circuit. Fluctuating membership on the Supreme Court and some justices who seem of two minds from case-to-case, only add to the confusion. Regents of the University of California v. Bakke (438 U.S. 265 (1978)), the first affirmative action case that reached the Supreme Court, set the pattern. The justices penned six separate opinions, and two shifting majorities agreed to different parts of the leading opinion. This opinion, drafted by Justice Powell, is hardly a model of clarity, easily avoid­ ing the hobgoblin of consistency. In fact, Justice Powell was the only justice who assented to his workmanship in its entirety. The case arose from a complaint by a rejected White male applicant to the medical school at the University of California at Davis. Despite two attempts (in 1973 and 1974) and a strong record of achievement, Allan Bakke was spurned for one of the 100 slots in the entering class. His benchmark scores (a combination based upon under­ graduate grade point average, score on the Medical College Admissions Test, letters of recommendation, interview, and other factors) of 468 out of 500 the first year and 549 out of 600 the second, were just a sliver below the cutoff for the general admissions program. What irked Bakke was the operation of a special admissions committee, with 16 slots reserved for economically or educationally disadvantaged students and minorities. This special com­ mittee admitted students with credentials much weaker than his. Although the special dispensation was in theory open to nonminority applicants, and many applied, only minority-group members had won admission through this special committee. In contrast, 44 minority students over a 4-year period had attained admission through the regular admissions process. Bakke sued the medical school, charging that the admis­ sions process violated (1) the U.S. Constitution’s Fourteenth Amendment Equal Protection Clause, a vital portion of one of the post-Civil War amendments that guarantees to all persons equality before the law, (2) a similar provision in the California Constitution, and (3) Title VI of the Civil Rights Act of 1964, which mandates nondiscrimination in all programs receiving federal funds. Bakke received favorable hearings in two California courts. The trial court agreed with him on all three grounds, but denied him admission, nevertheless, because he could not prove that he would have been admitted had

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the special admissions policy not existed. The California Supreme Court, basing its decision on the Equal Protection Clause, found that the special admissions pro­ gram was not the least intrusive means to achieve the legitimate end of increasing minority doctors. That court ordered Bakke’s admission. The United States Supreme Court, in the person of Powell and his first, cobbled-together conservative major­ ity, agreed with the California Supreme Court that Bakke should be admitted, but his second, liberal majority, refused to prohibit race as a factor in admissions decisions. The liberals agreed with Powell’s assessment that racial classifications, although inherently suspect, may be used to overcome chronic minority underrepresentation. They declared invalid the medical school’s special admissions program because, Powell argued, it smacked of a quota by designating 16 positions for minorities, and by selecting minority admittees in a separate pool that sheltered them from competition with other applicants. Emerging from the maze of convoluted opinions – partial concurrences and partial dissents – that Bakke elicited from the Supreme Court, is one overriding teach­ ing: that it is permissible to take race into account in university admissions if the selection mechanism does not set aside a fixed number of slots for minorities, and if race is considered as a ‘plus factor.’ In the words of Justice Blackmun, words destined to be repeated often in subsequent cases and by legal commentators, ‘‘In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.’’ In the years that followed, the Supreme Court would hear many affirmative action cases, and the disputed ele­ ments of the Bakke decision would never be resolved. First, what level of scrutiny should benign racial classifi­ cations receive from the courts? The more conservative justices favor a ‘strict scrutiny’ standard that would have courts apply microscopic examination to any racial clas­ sification as a potential violation of the Equal Protection Clause. Liberals, in contrast, are willing to apply a heigh­ tened scrutiny, but one less searching than strict scrutiny. Liberals suspect that the conservatives’ ‘strict scrutiny’ would be ‘strict in theory, and fatal in fact.’ Second, what is the appropriate ‘interest’ that a government agency must meet in order to justify classifying people by race? For the liberals, an ‘important’ government inter­ est is sufficient for their ‘intermediate scrutiny.’ Their test is satisfied by a claim to be remedying an underrepresen­ tation of minorities that derives from societal discrimination in general or by an employer’s desire to promote diversity. For the conservatives’ tougher test, a university or employer must explicitly seek to remedy its own past discrimination. Neither camp, however, favors using the weakest standard of judicial review – the rea­ sonable relationship test. This test is the one that the

Court employed for decades in cases challenging eco­ nomic regulation; it is a test that shows great deference to legislators and involves minimal judicial scrutiny. After Bakke, universities continued to apply racial clas­ sifications to applicants, counting race as a ‘plus factor,’ and admitting minority students with significantly lower qualifications over White applicants with better grades and test scores. Sometimes they did so in a process very similar to the one invalidated in Bakke, by considering minority candidates in a separate pool, by a separate committee, and on relaxed standards. For affirmative action beyond the university, another reverse discrimination case that the Supreme Court decided the year after Bakke set the pattern. In United Steelworkers v. Weber (443 U.S. 193 (1979)), the justices upheld a ‘voluntary’ affirmative action program estab­ lished by Kaiser Aluminum and the United Steelworkers Union to set aside 50% of all openings in a training program for craft positions for Blacks, until the number of Blacks in such positions reflected their proportion of the local population. Over the objection of a displaced White worker, the Court upheld the plan as a legitimate means to remedy Kaiser’s own past discrimination, as evidenced by the paucity of Blacks among its craft work­ ers, and the more general history of racial discrimination in the craft unions. From the disparity between a local population that was 39% Black and the plant’s skilled employees who were only 2% Black, the Court inferred that discrimination must have been a factor. Weber objected to the affirmative action plan on the grounds of discrimination by race, as interdicted by Title VII of the Civil Rights Act of 1964. Unlike Bakke, this case was not decided on constitutional grounds, because Weber’s employer was in the private sector and not subject, as the Davis Medical School had been, to the Equal Protection Clause. Writing for the majority, Justice Brennan, a liberal jurist, finessed the Dirksen Amendment, aimed at preventing the use of preferences or quotas, by contending that Congress merely banned ‘requiring’ companies to utilize racial preferences, but did not, although it easily could have, prohibit ‘permitting’ the use of preferences. Weber would stand for the proposition that an affirmative action plan must remedy past discrimi­ nation (but whether societal or specific would remain unsettled), that the remedy must not completely exclude Whites, and that the plan must expire at such time as the effects of past discrimination have been overcome. Following these two precedent-setting cases, the Court’s subsequent decisions would vacillate between the two main antagonistic positions of the conservatives and liberals, depending in large part on the composition of the Court. For example, in Fullilove v. Klutznick (448 U.S. 448 (1980)) the Court deferred to Congress’s intent to remedy past discrimination by establishing ‘set-aside’ programs or preferences for minorities in federal

Affirmative Action

contracting. With the conservatives on the ascendancy in a 1989 case, Richmond v. J. A. Croson (488 U.S. 469 (1989)), the Court overturned the City of Richmond’s set-aside scheme for minorities, by arguing that state and local governments, under the Fourteenth Amendment, did not have the same latitude as the federal government in remedying past discrimination. With the swing vote deserting the conservatives the following year, the Court’s liberals struck back with Metro Broadcasting Inc. v. Federal Communications Commission (FCC) (497 U.S. 547 (1990)), upholding a regulatory policy of the FCC grant­ ing preferential treatment to minorities in the granting of broadcast licenses. The conservatives marshaled their forces 5 years later, in Adarand v. Pena (115 S. Ct. 2097 (1995)), and came full circle by in effect nullifying Fullilove and applying the same ‘strict scrutiny’ standard from Croson to federal set-aside programs. The Adarand decision applying ‘strict scrutiny’ to federal contracting by racial preference had an immediate impact. President Clinton ordered his Justice Department to deter­ mine which federal contracting programs would fall afoul of the newly imposed ‘strict scrutiny’ standard, just as Croson had sent state and local governments scurrying to complete disparity studies to demonstrate the two elements of the ‘strict scrutiny’ test: that they had discriminated in the past; and that their set-aside programs were ‘narrowly tailored’ to remedy their own past discrimination. Beyond the issue of set-asides, Adarand sent a wider signal that several appeals courts quickly interpreted to mean that affirmative action in general ought to be sub­ jected to a more searching examination, and perhaps found wanting. A quick check of Adarand ’s potential impact can be discerned in a case denying admission to several nonminority applicants to the University of Texas Law School, a case challenging an affirmative action admissions scheme much like the one that had been supposedly forbidden in Bakke. The law school set goals of 5% for admission of Black students and 10% for Mexican-Americans; it screened minority applicants through a separate selection committee; and it offered admission to minority students with significantly lower qualifications than rejected White students. Race looked like something more than just a ‘plus factor.’ It is worth noting, since the data on comparative aca­ demic records of White and minority students at competitive universities have been so tightly held by admis­ sions committees, that the disparities revealed at the University of Texas Law School are substantial, and of the same scope as at other elite universities whose practices have become known, always reluctantly. All applicants received a Texas Index score which reflected their grades and test scores on the Law School Admission Test. Nonpreferred applicants were placed in a ‘presumptive admit’ category with a score of 199 or above, while those below 192 fell into the ‘presumptive deny’ category. In contrast, Blacks and

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Mexican-Americans were placed in the ‘presumptive admit’ category with a score of 189 and above and in ‘pre­ sumptive deny’ at 179. Those falling between the two extremes for both minority and nonminority groups of applicants received the closest examination, and some were admitted and some not. The effect of this program was that minority students were placed in ‘presumptive admit’ at scores lower than ones that disqualified the nonpreferred White and Asian applicants. The Fifth Circuit Court of Appeals, in Hopwood, et al. v. State of Texas, et al. (78 F. 3d 932 (1996)), hinged its decision on the Supreme Court’s reasoning in Adarand. Reaching a far harsher verdict on the law school’s admissions policy than had the original, pre-Adarand district court (the court that had originally tried the case), the appeals court found the scheme objectionable in its entirety. The judges engaged in exactly the sort of searching analysis called for by the con­ servative majority in Croson (the set-aside case decided in 1989) and Adarand, in which the Supreme Court endorsed a strict scrutiny standard for ‘benign’ racial classifications. The appeals court discerned no compelling justification on Fourteenth Amendment, Equal Protection Clause grounds for ‘‘elevat[ing] some races over others, even for the whole­ some purpose of correcting perceived racial imbalance in the student body.’’ The court, likewise, found unacceptable the diversity rationale for affirmative action, concluding that only remedying an organization’s own prior history of dis­ crimination with present effects could justify a remedy that takes race into account. The judges seemed genuinely dis­ concerted by a presumption that they found implicit in the diversity argument, that is, that ‘‘a certain individual pos­ sessed characteristics ‘or viewpoints’ by virtue of being a member of a certain racial group.’’ While allowing consid­ eration of social and economic disadvantage on an individual basis, the court spurned ‘‘any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body.’’ More ominously yet for affirmative action’s supporters was the court’s reasoning on the law school’s argument that its program sought to remedy the present effects of past discrimination throughout the Texas public educa­ tion system. Parsing every detail, as strict scrutiny requires, the court could find no compelling state interest in such a broad mission. The law school would have had to present a justification relying solely on its own past history of discrimination, the court opined. Because many of the successful minority applicants had come from states other than Texas or from private schools, any vestiges of discrimination in the Texas educational system were deemed irrelevant. For good measure, the court added that even a narrowly framed rationale based on the law school trying to remedy its own prior discrimination would be deficient, because the law school had been actively recruiting minority students under various affir­ mative action programs since the late 1960s.

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Perhaps another court, parsing Texas’s history of maintaining segregated public schools, universities, and professional schools, might have reached a different con­ clusion, even on Adarand ’s strict scrutiny standard. Indeed, the law school’s affirmative action plan had not been adopted voluntarily, but rather after years of pro­ tracted litigation attacking its remaining vestiges of discrimination against Blacks and Hispanics. In fact, the Office of Civil Rights (OCR, then a part of the U.S. Department of Health, Education, and Welfare and now a unit of the Department of Education) had been ordered in 1977 by the District Court for the District of Columbia to investigate Texas’s admissions policies in its institu­ tions of higher education. In 1980, the OCR concluded that the system was still in violation of Title VI of the Civil Rights Act of 1964. It took several more years for the Texas system to present a plan that the OCR found acceptable for remedying this legacy. In 1983, after a threat from the district court to order enforcement pro­ ceedings, the OCR approved a revised ‘Texas Plan,’ one that agreed to instruct all state professional schools to ‘‘admit black and Hispanic students who demonstrate potential for success but who do not necessarily meet all the traditional admission requirements.’’ In 1988, when the plan was scheduled to expire, the OCR agreed with Texas that a new ‘Plan II’ would replace the first one, because the state had not yet been certified by the Department of Education as having achieved compliance with Title VI. The new ‘Plan II’ employed a more rigor­ ous quantitative technique for judging applicants, and allowed for considerably less subjectivity in assessing minority applicants than the plan it replaced. By 1994, 2 years after Hopwood and her fellow disappointed appli­ cants had been denied admission, Texas was still under OCR supervision. Thus, even for a post-Adarand court applying strict scrutiny, there was much past history that could have led to a different result. This court, however, saw matters quite differently. Employing unusually harsh language, the judges seemed offended by what they called the ‘‘segregated’’ mechanisms employed in the law school’s admissions procedures – separate color-coding of applications by race, a separate committee to review and admit minority students, and ‘‘segregated’’ waiting lists. Such exclusionary selection mechanisms treated people as members of groups, rather than as individuals, and this greatly disturbed the judges. On their reading, the Equal Protection Clause implies an individualism incompatible with the group entitlement implications that they drew from the law school’s scheme. It is too early for any definitive conclusions about the scope of permissible affirmative action on campus. In the wake of Adarand, Hopwood, and a pre-Adarand decision by the Fourth Circuit that invalidated race-based scholar­ ships at the University of Maryland (Podberesky v. Kirwan, 38 F. 3d 147 (1994)), the viability of affirmative action

programs similar to the one at Texas is doubtful. The Supreme Court declined to hear an appeal in Hopwood (116 S.Ct. 2581 (1996)), thus leaving this harsh condemna­ tion of affirmative action standing as precedent in the Fifth Circuit, and possibly influential in other circuits as well. Since most universities’ affirmative action programs share much in common with the one invalidated in Hopwood, only time will tell how influential this blast at ‘racial social engineering’ will prove to be. Summary: Affirmative Action as Public Policy Affirmative action first emerged in the late 1960s as an unforeseen outgrowth of the Civil Rights Act of 1964. Frustrated by the subsequent, slower-than-anticipated pace of integration throughout the society, executive branch and judicial officials sought a more aggressive approach. Taking race into account in order to overcome racism became the regnant social policy, enforced by government agencies and courts, and embraced by universities and large corporations. First seriously challenged in the Reagan Administration, affirmative action received renewed inspiration from the Civil Rights Act of 1991. This act overturned several con­ servative Supreme Court decisions in the late 1980s that had chipped away at affirmative action’s legal underpinnings and made Title VII employment discrimination cases harder for workers to win. With renewed vigor, the conservative posi­ tion reasserted itself in the mid-1990s, as the high Court imposed a strict scrutiny test on programs employing racial preferences. In this unsettled environment, universities and employers are likely to find themselves defending against many more reverse discrimination suits that will be more difficult to vanquish under the microscopic analysis demanded by strict scrutiny. At the same time, they will still in all likelihood be pressured by regulatory agencies to abide by affirmative action requirements. A 2004 study of affirmative action programs in U.S. law schools proposed that removing affirmative action programs would probably bring less African American students to law school but would also result in more graduating and passing bar exams (Sander, 2004).

Affirmative Action Abroad Spurred by equal opportunity efforts in the United States dating back to the Roosevelt Administration, by the pas­ sage of the Civil Rights Act of 1964, and by the subsequent emergence of affirmative action, countries of the European Community, Canada, and Australia, to dif­ fering extents, modeled new laws on American practice. The United Nations’s adoption in 1948 of the Universal Declaration of Human Rights and similar declarations over the years by the UN and its agencies, were also influential in enshrining in Western law recognition of

Affirmative Action

the ‘‘inherent dignity and of the equal and inalienable rights of all members of the human family.’’ A study of affirmative action policies in India, Malaysia, Sri Lanka, Nigeria, and the United States found that they encourage non-affirmative action groups to redesignate themselves as members of preferred groups, to benefit primarily the most fortunate among the preferred group and reduce the incentives to achieve because it appears either unneces­ sary or futile. Equal employment opportunity law and affirmative action in Australia make that country a parti­ cularly interesting one to discuss alongside U.S. practices, and the two countries share many similarities in background and social tensions. Australia has been particularly energetic in fashioning equal employment opportunity laws, consciously mod­ eled after efforts in the United States. The heterogeneity of Australia’s population, and the presence of the Aborigines, explains part of Australia’s vigilance. Australia’s highly structured labor markets, in which labor contracts are negotiated before national labor boards, is another reason why the country proved amena­ ble to the sorts of interferences in the labor market that vigorous equal employment enforcement requires. Dating back to the turn of the century, Australia has set wage rates for almost all occupations by federal and state wage tribunals, with employers and workers left free to nego­ tiate overawards through a modified collective bargaining process. It was only in the period between 1969 and 1975 that the Commonwealth Conciliation and Arbitration Commission – the federal wage tribunal – handed down two decisions that ended the long-standing practice of a two-tier wage structure for men and women. Prior to World War II, women’s wages for each occupation were set at 54% of men’s wages; after the war, the figure rose to 75%. Australia’s labor market continues to be highly segmented by sex. Australia has five major Commonwealth Government (federal) laws, each enacted in response to the country’s signing of an international human rights declaration, and its states and territories (with the single exception of Tasmania) have also passed civil rights measures of even greater scope. Because Australia’s federal constitution is one of delegated powers, and none was given to enact antidiscrimination laws, the Parliament hinged its equal opportunity legislation on its power to enact laws affect­ ing ‘‘external affairs,’’ hence the connection to international declarations. The first act, the Racial Discrimination Act of 1975 (tied to the country’s signing of the UN’s International Convention on the Elimination of All Forms of Racial Discrimination), makes discrimi­ nation on the basis of race, color, or national and ethnic origin illegal. This act has broad sweep, declaring that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on

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race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the poli­ tical, economic, social, cultural or any other field of public life.

The act covers ‘‘access to places and facilities’’ open to the public (including means of travel), estates or other inter­ ests in land, housing, provision of goods and services, membership in trade unions, employment, advertise­ ments, and incitement to acts prohibited by the law. To enforce the act, a position of commissioner was estab­ lished to investigate and conciliate complaints of breaches of the act. Recourse to the civil courts, should conciliation fail, was also provided, with much leeway for judges to fashion remedies to restore the aggrieved person to the position that he or she would have been in had no discrimination occurred, to void discriminatory contracts, and to provide monetary damages. Another fundamental act extended protection to women and, also, enhanced enforcement mechanisms. The Sex Discrimination Act of 1984, passed after Australia signed the UN’s International Convention on the Elimination of All Forms of Discrimination against Women, banned discrimination based on sex, marital status, dismissal from a job for caring for family members, pregnancy or potential pregnancy, and made sexual harassment unlawful. It, too, covered a wide scope of human interactions, including employment, employment agencies, education, goods, services and facilities, accom­ modations, land, clubs (but single-sex clubs are permitted), partnerships of over six people, and the administration of Commonwealth laws and programs. The act permits ‘‘special measures’’ to promote the inter­ ests of women and their quest for equal opportunity. Numerous exceptions – for household workers, employees who take care of children, combat soldiers, thespians, competitive athletes, the sale of insurance policies based on actuarial or statistic data that varies by sex, the ordina­ tion of religious leaders, selection of staff members of denominational schools, and so on – make this a very lengthy, intricate, and cumbersome law. Thus, it is a law highly dependent on those who do the interpreting: com­ missioners and judges. Three major Commonwealth acts have been added to this structure over the ensuing years, each covering approximately the same range of human activities as the earlier legislation. These acts include: (1) The Human Rights and Equal Opportunity Commission Act of 1986, which established a Human Rights and Equal Opportunity Commission to enforce all of the antidiscri­ mination acts and made it illegal to retaliate against anyone filing a complaint (termed ‘‘victimisation’’); (2) The Disability Discrimination Act of 1992 prohibits

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discrimination on the basis of physical, intellectual, psy­ chiatric, sensory, and neurological disabilities, as well as infectious diseases such as being a carrier of the HIV virus that causes AIDS. This act also bans harassment of the disabled. Employers are permitted to argue in their defense that a disabled employee could not perform the ‘‘inherent requirements’’ of the job, or that in order to carry out these duties, the disabled person would require services or facilities not required by others and that the provision of these supplements would ‘‘impose an unjus­ tifiable hardship on the employer.’’ Similar defenses are permitted for those operating educational institutions, public facilities, and so on. Numerous exceptions make this another very cumbersome, lengthy, and interpretable act. ‘‘Victimization’’ of someone for contemplating or fil­ ing a complaint is punishable by imprisonment for 6 months. The act permits ‘‘special measures’’ to help the disabled achieve equal opportunity, just as the Sex Discrimination Act permitted such measures to benefit women. (3) The Affirmative Action (Equal Employment Opportunity for Women) Act of 1986 made women the only group of Australians (with the exception of some categories of federal employees) (now the Equal Opportunity for Women in the Workplace Act 1999) specifically entitled by Commonwealth legislation to affirmative action. Educational institutions and employers of over 100 workers must implement programs to advance the careers of women and break down barriers to their advancement, and they must file an annual report. Statistical comparisons of the employment of men and women in various occupations within a company led to the setting of ‘‘objectives’’ and ‘‘forward estimates’’ for the employment of women. ‘‘Objective’’ is defined as a ‘‘qua­ litative measure or aim, expressed as a general principle’’ that can ‘‘reasonably be implemented by the relevant employer within a specified time.’’ ‘‘Forward estimate’’ is a ‘‘quantitative measure or aim, which may be expressed in numerical terms,’’ designed to achieve equality of opportunity for women within a ‘‘specified time.’’ An employer who fails to provide reports to the director of affirmative action, a member of the Human Rights and Equal Employment Commission, can be reported to the Minister with oversight authority, named in Parliament, and denied government contracts. Although Australian enforcement authorities are inclined to distinguish their affirmative action practices from the ‘quotas’ that they perceive in American affirma­ tive action programs, their ‘objectives’ and ‘forward estimates’ seem indistinguishable from the ‘goals and timetables’ of America’s Office of Federal Contract Compliance Programs. As a result of reforms in the Public Service Act in 1984, all government agencies must develop affirmative action plans, and they include ‘objectives’ for the hiring not only of women but also of Aborigines and Torres Strait

Islanders (another native population), people with dis­ abilities, and people of non-English speaking background. The most recent plan, launched in 1993, sets objectives for increasing government employment of these groups through the year 2000, and each depart­ ment must report its progress and the strategies it has employed toward these objectives each year. Year 2000 goals are set at 2% for Aborigines/Torres Strait Islanders, 5% for people with disabilities, 20% for women and 28% for women in senior officer grades, and 15% for people of non-English speaking background. As of the 1994–95 report, these objectives were nearly achieved or, in the case of Aborigines/Torres Strait Islanders, already ful­ filled. The only objective still wide of its mark is for employment of senior-grade women, which stood at 23.38%. Public service agencies are also legally obligated to institute measures to combat sexual harassment. Australia’s equal employment opportunity regime seems more aggressive than that in the United States, with laws that are written in a more cumbersome and expansive style than in the States, and with Australian states and territories seeming to exceed the federal govern­ ment in solicitude. Some states even forbid discrimination on political and religious grounds, and newspapers can be brought before tribunals to answer for such things as refus­ ing to publish letters to the editor based on grounds of alleged political discrimination. As is evident from the statistics reported by government agencies – percentages carried to the hundredth place – ‘objectives’ can easily become indistinguishable from quotas, a quandary shared by the United States’ OFCCP. While Australia has been influenced greatly by American practices, it seems to be an instance of the student exceeding the teacher in enthusiasm and assiduity.

Philosophical Arguments Affirmative action from its inception has been bathed in controversy. Political disputation centered upon the logi­ cal inconsistency of seeking to eradicate racial discrimination by means of racial discrimination. Just as the Supreme Court struggled with itself in a futile attempt at reconciling this conflict, society at large engaged in vigorous debate throughout the 1970s. Periodic echoes of that public debate erupted in the 1980s during the Reagan Administration, and again in the 1990s with salvos from the Court and grassroots opposition in the form of an antiaffirmative action referendum placed on the 1996 California ballot. Philosophers, too, proved no slouches in producing vigorous arguments on both sides of the issue, although their interest flagged during the 1980s when it seemed that every conceivable argument, pro and con, that could be made had been made already in the 1970s. Renewed public debate in the 1990s, spurred

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by the California Civil Rights Initiative to end affirmative action in that state, also rekindled the interest of moral philosophers in reexamining this issue. During both rounds of the philosophical debate, justifications for affir­ mative action have fallen within two main types – compensatory and consequentialist – although much variety can be found in the details. The Proponents’ Arguments The compensatory argument

Compensatory arguments are backward-looking and jus­ tify affirmative action as a remedy for slavery and its continuing present-day legacy, segregation and its linger­ ing effects, and ongoing racism in defiance of the spirit of Brown v. Board of Education and the 1964 Civil Rights Act. In order to attain a just society, compensation in some form must be paid to those who are racism’s most visible victims. Just as Germany was forced by the Allies to make recompense to the surviving victims of Nazi extermina­ tion camps, their children, Jewish organizations, and (after 1948) the newly created Israeli state, African Americans ought to receive reparations in some manner for the injustices inflicted on their ancestors and themselves by a slave-holding and segregationist society. Backward-looking arguments are most compelling when they identify African Americans as the victimized group deserving of recompense, because the outrage of capture and forced transport, followed by generations of servitude is so repugnant to modern ideals of justice. Yet, persuasive arguments have been made for extending the compensatory argument to other aggrieved groups. Women deserve inclusion because of a denial of the suffrage until 1920, much like the disfranchisement of Blacks during the last two decades of the nineteenth century. Bound to the home by social custom – or, some more radically feminist thinkers argue, male oppression – women were barred from an active role in social life and were denied admission to exclusive male institutions of power: the university, the corporate world, and the polit­ ical realm. Legal disabilities of various sorts prevented women from entering certain professions, laboring as long as men, or exercising control over marital property. These artificial barriers liken women to Blacks, many argue, and warrant their inclusion in any argument for the rectifica­ tion of historical injustice. In similar fashion, arguments are made based on historical victimization for the inclu­ sion of Asians, Hispanics, Native Americans, Eskimos, and occasionally other groups. Gertrude Ezorsky, a philosophy professor, makes a typical compensatory argument for preferences in her book Racism and Justice: The Case for Affirmative Action. Racism against African Americans in America has been and continues to be ‘‘so pervasive that none, regardless of wealth or position, has managed to escape its impact.’’

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Enslavement followed by a century of legalized discrimina­ tion marks all Blacks, and none are required to prove their individual injuries in order to justify compensation. Perhaps, if emancipation had ended the impediments placed in the path of Blacks’ advancement, the argument from historical injustice would have been attenuated over the years, but such was not the case. Racism never ended and still persists today. Thus Ezorsky finds preferential policies necessary as a remedy for historical wrongs, especially against Blacks, because their suffering was of a different kind than that endured by other disfavored groups. Sensitive to charges by critics of affirmative action that the price of compensation falls whimsically on the few, young, and White males, Ezorsky hopes to blunt this charge by diffusing the costs over a larger group. For example, layoffs disproportionately affect Blacks because they usually have the least seniority – last hired, first fired. Instead of layoffs, Ezorsky suggests that employers consider alternatives that would spread the burden more widely: early retirement incentives, payless holidays, or work-sharing. If none of these were feasible, she suggests laying off the same percentage of the least senior Blacks and Whites. Thus, 10% of Blacks and 10% of Whites might be handed their pink slips, and some of the Blacks retained would likely have less seniority than some of the discarded Whites. The federal government might have a program, funded by progressive taxation, to compensate displaced Whites by augmenting their unemployment insurance, she suggests, thus spreading the burden of compensating Blacks for past injustice over all of society. Similarly, Whites denied promotions in favor of less qualified Blacks could receive monetary compensation from the government. The consequentialist argument

The second category of arguments supporting affirmative action is based on a forward-looking, consequentialist approach. Consequentialist arguments look ahead, rather than backward, to the good things that will happen once racial discrimination is eviscerated and society can take advantage of the talents of all. Forward-looking argu­ ments have been represented in the debate over affirmative action from its inception, and they have enjoyed renewed interest in the latest round of the dis­ cussion. Backward-looking arguments have become less compelling after a quarter century of compensatory affir­ mative action programs, and after the withering critiques made by early opponents. Thus, forward-looking argu­ ments dominate debate in the 1990s, just as backwardlooking rationales had in the 1970s. Consequentialist arguments typically take one of these forms: (1) that diversity of students or workers by race, ethnicity, and sex will provide a more stimulating campus or work environment that will redound to the benefit of

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Affirmative Action

all, White males included; (2) that inclusiveness in the workplace will become even more of a necessity for busi­ ness survival in the future as the United States workforce becomes increasingly darker-complected and female; (3) that a multicultural curriculum in our educational institutions at all levels will broaden everyone’s under­ standing and enrich us all; and (4) that the beneficiaries of preferences and ‘goals and timetables’ will become the role models for their groups as they become visible and successful members of their chosen professions. Most forward-looking arguments for affirmative action are based on a conception of distributive justice – the aspect of justice that deals with the distribution of rewards, benefits, and other good things in society. Equal opportunity is the anticipated result. Equal opportunity can mean just that all ‘positions’ in society are open to all in an unbiased competition, with the best candidate prevailing. More typically, though, a liberal understanding of equal opportunity involves some attempt to make people more equal at the starting line of life’s competitions. Affirmative action, in the form of preferences for the victims of discrimination, will make the race fairer at the outset, liberals contend, and will produce a more just society as the great game of life is played out. Legal philosopher Ronald Dworkin makes a typical, liberal argument for preferences (1977, Taking Rights Seriously). For Dworkin, all people deserve equal respect, and that is the basis for acknowledging their right to be treated as equals. Treating people unequally, however, may be necessary in order to achieve the ideal state of affairs in which people can be treated equally. Just as a parent might treat a sick child and a well child with respect, yet devote more resources to making the sick one well, society may grant preferences to the victims of discrimination, yet still respect all individuals equally. Philosopher Thomas Nagel, in his essay ‘‘Equal Treatment and Compensatory Justice’’, makes a more radical, egalitarian, forward-looking argument than Dworkin’s. Preferential policies are not ‘‘seriously unjust’’ and ought to be implemented, but Nagel does not think that they will solve the basic societal problem of injustice. Even if affirmative action were completely successful in removing and remedying racial and gender impediments, individuals would still receive unequal and undeserved rewards as the result of unequal and undeserved talents. The injustice caused by racial and sexual discrimination, for Nagel, can only be completely surmounted by a radical reorganization of society along egalitarian lines. Although compensatory and consequentialist argu­ ments are separable, the consequentialist arguments, to a great extent, depend upon the moral imperative derived from the historical, rectificatory arguments. Consequentialist justifications for affirmative action,

absent a litany of historical outrages, would not be nearly as compelling.

The Arguments of Affirmative Action’s Critics Defects in the compensatory argument

During the 1970s, affirmative action’s critics were no less industrious than its proponents. The critics targeted defects in the proponents’ compensatory argument, the linchpin of their case for preferences. While agreeing with the propo­ nents that historical outrages had been perpetrated against Blacks – slavery and segregation the most egregious – the critics found the proponents’ remedy counterproductive. Rather than compensating individuals for past discrimina­ tion against them in particular, affirmative action attempts to compensate groups. Present-day special entitlements, or ‘group rights,’ the critics opined, cannot rectify atrocities of the distant past. With the passage of time, the compensatory argu­ ment becomes attenuated, with those who suffered the worst outrages long dead. Their descendants have a much weaker claim to recompense from American society, composed as it is of the sons and daughters, grandchildren, and great grandchildren of immigrants, many of whom fled discrimination of varying sorts in their countries of origin. Tracing historical victimhood, they argue, is a convoluted, disputatious enterprise, and one likely to erode social solidarity by Balkanizing peo­ ple into groups of bitter rivals. Even if historical atrocities could be fairly attributed, the critics fail to see how a group right to preferences for the victims’ descendants can ever compensate the aggrieved forebearers. Furthermore, if compensation can only be made to people who share the same skin color, race, sex, or national origin as the victims, and not to their actual descendants, then the critics find the rectificatory argument even less compelling. Proponents employ group-rights arguments to claim preferences for current members of minority groups or women because of historical injustices that members of these groups suffered. Opponents reply that compensa­ tory racial preferences create new groups of victims from the people who must pay the price of recompense in educational and professional opportunities denied. They view this as ‘reverse discrimination,’ benign in intent but ultimately of the same nature as the racial discrimination that led to slavery and segregation. Critics, in effect, deny that discrimination of any type can be benign, faulting reasoning such as Justice Blackmun’s that sometimes race must be taken into account in order to overcome racism. Reverse discrimination just creates new groups of victims. Justice Scalia, in a concurring opinion in Adarand, suc­ cinctly framed the critique:

Affirmative Action To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

Defects in the consequentialist argument

Critics also target the various forward-looking arguments for diversity, multiculturalism, inclusion, and role models. Rather than achieving a more just and egalitarian society, with opportunities open to all regardless of race, ethnic­ ity, or gender, affirmative action in the form of group rights, preferences, and reverse discrimination will only serve to stigmatize their recipients as the undeserving beneficiaries of unfair advantage. While proponents of preferences view them as stepping-stones to overcoming negative stereotypes about minorities and women, oppo­ nents see them as solidifying stereotypes by implying that the recipients of preferences are not capable of achieve­ ment by their own devices. Diversity and inclusiveness, if bought at the price of undeserved advantages and merit denied, will not further social amity, the opponents believe. Individuals deserve to be treated on their own merits, and if the violation of this principle is enshrined in law and practice, as affirmative action has been, artificial promotion of minorities will lead Whites to make invidious comparisons. In addition, the value of successful minorities as role models will be tar­ nished by the perception that but for preferential policies – from college admissions, to graduate and professional school admissions, to hiring and promotion – they would not have attained their positions. Not only will they be stigmatized in the eyes of others by preferential treatment, but they may come to question their own competence. Could I really have competed with my fellow students or colleagues if I had not been granted a special dispensation, will be a concern that undermines the recipient’s self-esteem. In English professor Shelby Steele’s The Content of Our Character: A New Vision of Race in America, the effect of preferences on self-esteem is an overriding con­ cern. Accepting racial preferences for the children of the Black middle class, who have not been hindered in their ambitions by discrimination although they may have experienced racial slights, is for Steele something of a ‘‘Faustian bargain.’’ He perceives one result as ‘‘a kind of demoralization, or put another way, an enlargement of self-doubt. Under affirmative action the quality that earns us preferential treatment is an implied inferiority.’’ He cites the contrast between the 18 Black students who comprised his freshman class at college in 1964 (before racial preferences), who all graduated, with the failure rate of 72% for a much larger number of Blacks at the university at which he taught, San Jose State University in

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California. This high failure rate occurred despite numer­ ous university programs to assist Black students, none of which existed in the sixties: academic support programs, counseling, an Afro-American studies department, the pre­ sence of Black faculty, a mentor program, and other aids. Steele would like affirmative action to mean what it did originally: enforcing equal opportunity by punishing those who actually discriminate; and helping to develop the abil­ ities of the educationally and economically disadvantaged of all races. Economist and social commentator Thomas Sowell (like Steele, an African American) has repeatedly made the point, echoed by Steele, that some Black students recruited for affirmative action goals at elite universities will be unprepared for rigorous intellectual competition with better prepared White students, and will come to doubt themselves, and often fail. Such failures are unne­ cessary, Sowell contends, because these very same Black students could have been successful at slightly less exclu­ sive colleges. Sowell sees affirmative action as producing a ratcheting-up effect in which minorities throughout the spectrum from elite to nonselective universities are sys­ tematically mismatched – set up for failure. Other critics suggest that we reexamine the 1964 Civil Rights Act’s reach, perhaps limiting its application to government agencies and permitting private companies to make their own decisions. Such a revised affirmative action regime would allow employers to adopt a variety of measures of their choice – or presumably, none at all – to achieve a diverse workforce. Voluntary plans, they argue, would offer the advantage of experimentation, and allow employers to better tailor their practices to the nature of their businesses. The result, they feel, might be a more vibrant labor market, and one in which we could better assess what interventions work and what do not. The Advocates’ Response Over the years, defenders of affirmative action have heard these criticisms innumerable times. They respond by refuting the various charges, reformulating their original arguments to take the objections into account, or fashion­ ing novel defenses. The rebuttal arguments of the proponents include the following: To the critics’ argu­ ment that affirmative action compensates the wrong people by aiding those least affected by discrimination, they respond that racism is endemic, and thus all Blacks are its victims; to the argument that selection for scarce positions ought to be meritocratic, they respond that colleges admit legacies and academically impaired ath­ letes, and that job preferences for veterans are well accepted; to the argument that racial preferences foster loss of self-esteem, self-doubt, and failure, they point to those same effects but attribute them to continuing White racism; to the argument that group rights and claims of

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Affirmative Action

entitlement undermine social cohesion, they argue that Whites never objected when such perquisites were the preserve of Whites to the detriment of Blacks held in servitude or prevented by segregation from com­ peting for desirable jobs; to the argument that affirmative action is tantamount to reverse discrimination, they counter that their racial classifications grant everyone equal respect, while the old racial categories were born of malevolence. Three of the newer defenses for affirmative action deserve mention. The first attempt was to salvage such programs, despite renewed attack in the political arena and the courts in the 1990s, by generalizing preferential programs to allow all of the disadvantaged to receive benefits, not just Blacks, women, and the other traditional beneficiaries. Recognizing that they will likely have to accept some retrenchment in these programs, because of public weariness or effective opposition, proponents hope to salvage as much of affirmative action as they can. These arguments for preference by class, instead of by race, do not seem to be any advocate’s truly favored course, but a weak second best. Curiously, class-based affirmative action may even play a role in the tactics of the opponents of racial and gender preferences. For example, the California Board of Regents, in their 1995 vote to end affirmative action in university admissions in that state, left open the possibil­ ity that economic and social disadvantages, but not race, could be taken into account in admissions. A second strategy is to try to undermine the critics’ meritocratic argument by insisting that a candidate for admissions or employment who brings diversity to the community is meritorious on this ground. In other words, race or sex provides an additional qualification for a minor­ ity or female candidate. Advocates contend that minorities and women share life experiences that cannot be under­ stood or communicated by White male professors; that members of these maligned groups share a common con­ sciousness; and that the dominant White male society ought to hear their grievances and learn from them. Dorit Bar-On proposes a third strategy in defense of affirmative action. Writing in the journal Public Affairs Quarterly, Bar-On’s novel defense is based upon a notion of counterfactual justice. Bar-On’s objective is to redeploy the merit argument – so beloved by the critics – into a support for affirmative action. A qualified Black candidate for a job may not be the most qualified, but the evaluation should not end there. Employers should try to exclude from consideration the deficiencies that are probably the result of discrimination. Preferential treatment, then, would aim at ‘‘picking out candidates who would be deserving of the positions on grounds of competence, were it not for the present effects of past injustice.’’ Philosopher Robert L. Simon, in his essay ‘‘Affirmative Action and the University: Faculty Appointment and

Preferential Treatment’’ (in Affirmative Action and the University: A Philosophical Inquiry, ed. Steven M. Cahn, 1993, Temple University Press, Philadelphia), criticized this selection process as unworkable. How can employers and admissions committees judge nonexistent qualifica­ tions from the perspective of a perfectly just world that none of us can know, Simon wonders. Arguments, no doubt, will continue to proliferate on both sides of this contentious issue, but it is unlikely that a truly innovative one will sprout after a quarter century of debate. Proponents will fashion compensa­ tory and consequentialist justifications that differ little from their predecessors, and the critics’ rejoinders will be mutations at best. This is well-worn territory for philosophers, but the two camps seem as unreconciled as ever. Charles Lockhart (Winter 1994, ‘‘Socially Constructed Conceptions of Distributive Justice: The Case of Affirmative Action,’’ Review of Politics, Vol. 56), offers an explanation for the intractability of the debate, arguing that the two sides are formed by people of antagonistic temperaments. Egalitarians support affirmative action because they identify with groups and interpret equal opportunity as necessitating the eradication of great disparities in wealth and advantage between different groups in society. Individualists oppose affirmative action because they shy away from group entanglements, tend to be loners, and view equal opportunity as requiring only the eradication of government regulation of the marketplace. These ‘‘socially embedded preferences’’ that egalitarians and individualists hold result in rival ways of life that make the differences between the two camps on this issue ‘‘not resolvable in any deep sense.’’

Conclusion: Future Prospects Affirmative action developed piecemeal through regula­ tory agency activism, judicial acquiescence, and presidential prodding. With its rapid transformation in meaning from simply opening up opportunities into the principle that victims of discrimination ought to receive racial preferences, affirmative action became highly con­ tentious. While the battle lines in the later years of the debate have tended to be sharply drawn, many people empathize with elements of each side’s arguments. America has a strong legal and moral tradition of indivi­ dualism and meritocracy, and affirmative action challenges these principles, yet many feel the tug of past injustices unremedied. Public debate in the 1990s intensified as the decade began with revelations that the federal government had been race-norming its standard employment tests. This test, given to millions of job applicants and reported to potential private sector employers, had been graded by

Affirmative Action

race, comparing White applicants only to each other and Black applicants only to each other. Thus, the percentile ranking reported to a potential employer might be the same for two applicants of different races, yet represent a significantly higher objective score for the White appli­ cant. Under intensive public criticism, the Bush Administration was forced to rescind the policy. Political discord over affirmative action accelerated with several developments in California. The Civil Rights Initiative, proposed by two college professors, and entered on the 1996 ballot as a referendum issue, called for an end to affirmative action in state agencies, the universities included. What its drafters envisioned is a return to the original meaning of Title VII, that is, pro­ tecting individuals (rather than groups) from employment discrimination. California’s governor, Pete Wilson, as part of his ultimately futile presidential bid, issued an execu­ tive order (June 1, 1995) banning preferences in state operations not mandated by law. In July 1995 the regents of the University of California system voted to end racial and gender preferences in admissions and hiring. Vocal public protests, by students, faculty, and activist groups, failed to persuade the regents to repudiate their vote. Senator Robert Dole, likewise in the early days of his presidential quest, introduced (with a House Republican colleague) the Equal Opportunity Act of 1995, which if passed would have ended all preferential programs in the federal government. The California Civil Rights Initiative fared better than Senator Dole in the November 1996 elections, prevailing by a solid majority. Acts of civil disobedience, calls for typing up the initiative in court battles, and grumbling by city and university officials called into question how effective the initiative will be in securing its objectives. This political ferment, combined with the judicial shift toward a heightened standard for evaluating racial classifi­ cations and preferences, suggests that affirmative action will continue to be in great flux. Courts have always said that affirmative action is a temporary expediency, and a questionable necessity, to remedy extraordinary historical discrimination. In Grutter v. Bollinger ((02-241) 539 U.S. 306 (2003) 288 F.3d 732, affirmed), the U.S. Supreme Court held that the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body was not prohibited by the Equal Protection Clause. Whether affirmative action in the form of racial preferences survives many years into the twenty-first century is for the first time since its inception truly in doubt. Political ferment, as reflected in the Supreme Court’s heightened vigilance and by the passage of the California Civil Rights Initiative, may result in the gradual

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phasing out of affirmative action in the form of preferences and ‘goals and timetables.’ However, political sentiments can mutate quite rapidly, and new appointees to the Supreme Court may shift the tide back in affirmative action’s favor. One is on more solid ground in predicting the future of the philosophical debate than in the outcome of political cross-currents, and for philosophical disputa­ tion it seems safe to prognosticate that the future will not likely generate truly novel arguments either for or against.

See also: Discrimination, Concept of.

Further Reading Bar-On D (1990) Discrimination, Individual Justice and Preferential Treatment. Public Affairs Quarterly, 4(2): 111–137. Belz H (1984) Affirmative Action from Kennedy to Reagan: Redefining American Equality. Washington, DC: Washington Legal Foundation. Bergmann BR (1996) In Defense of Affirmative Action. New York: Basic Books. Bolick C (1996) The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision? Washington, DC: Cato Institute. Boxill BR (1992) Blacks and Social Justice, rev. edn. Lanham, UK: Rowman & Littlefield. Cahn SM (ed.) (1993) Affirmative Action and the University: A Philosophical Inquiry. Philadelphia: Temple University Press. Carter SL (1991) Confessions of an Affirmative Action Baby. New York: Basic Books. Epstein RA (1992) Forbidden Grounds: The Case against Employment

Discrimination Laws. Cambridge, MA: Harvard University Press.

Ezorsky G (1991) Racism and Justice: The Case for Affirmative Action.

Ithaca, NY: Cornell University Press. Graham HD (1990) The Civil Rights Era. Oxford: Oxford University Press. Koppelman A (1996) Antidiscrimination Law and Social Equality. New Haven: Yale University Press. Nagel T (1977) Equal treatment and compensatory justice. In: Cohen, Nagel, and Scanlon (eds.) Equality and Social Justice. Princeton, NJ: Princeton University Press. Sander RH (2004) A systemic analysis of affirmative action in American law schools. Stanford Law Review, 57: 367–474. Skrentny JD (1996) The Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago: University of Chicago Press. Sowell T (1994) Race and Culture: A World View. New York: Basic Books. Sowell T (2004) Affirmative Action around the World: An Empirical Study. New Haven, CT: Yale University Press. Steele S (1990) The Content of Our Character: A New Vision of Race in America. New York: St Martin.

Relevant Websites http://www.affirmativeaction.org – American Association for Affirmative Action. http://www.eowa.gov.au/About_EOWA/ Overview_of_the_Act.asp – Australian Government: Equal Opportunity for Women in the Workplace. http://www.emilyslist.org.au/about_us/about_us.asp – Emily’s List Australia; supporting women in Australian politics.

Affordable Housing, Ethics of P King, De Montfort University, Leicester, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Demand side subsidy Subsidy provided to individuals to allow them to purchase housing in a market, which therefore encourages the demand for housing. Merit good Goods that society believes individuals should have but that some individuals decide not to buy. Negative equity Where the outstanding debt on a mortgage is greater than the market value of the dwelling.

Introduction There is a tendency to believe that if we change the name of something then we also alter its significance. This applies particularly to subsidized housing. In the immedi­ ate postwar period, when the key issue was that of shortage, the state provided what was termed ‘public housing,’ either in the form of direct provision or through subsidies to approved landlords. In the United Kingdom between 1919 and 1980, local councils built and managed more than 6 million dwellings, which equated to nearly one-third of the housing stock. However, in the 1980s, governments such as that of Margaret Thatcher’s in the United Kingdom sought to diversify provision and so they encouraged the use of the term ‘social housing’ instead of public housing. The emphasis now was not so much on ownership as on the function of the housing, especially as an increasing proportion of new social housing was being provided by private bodies and charities using private finance to supplement reducing state subsidies. The past 30 years has accordingly seen the sale of 2.5 million council dwellings to sitting tenants and the transfer of nearly 1 million dwellings to housing associations. The result is that social housing now consists of less than 4 million dwellings. However, by the mid-2000s, the term social housing was itself seen as problematic. It was deemed to carry with it a stigma, particularly in the Anglosphere countries where owner occupation had come to dominate. Governments assumed that the majority of households desired to own their own dwelling, and the success of selling council houses seemed to prove this. As a result, successive governments developed housing and planning policies that promoted private development. However, this was occurring during a long-term economic boom that involved significant levels of house price inflation.

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Subsidy An explicit or implicit flow of funds initiated by government activity that reduces the relative cost of housing production or consumption below what it otherwise would have been. Supply side subsidy Subsidy provided to housing providers that encourages the supply of new housing or the improvement of existing stock.

Increasingly, therefore, the main housing problem was seen as affordability. Accordingly, the priority of govern­ ments shifted away from supporting social renting and toward dealing with affordability. Hence, governments started to use ‘affordable housing’ as a catch-all term that could include social renting but that also allowed them to divert resources to owner occupation. This shift from direct state provision of housing with an avowed public purpose to an emphasis on affordability regardless of tenure raises a number of key ethical con­ cerns, which I discuss later. What this change in terminology shows is that the way in which state subsi­ dized housing is viewed has changed. The term affordability has a clear ethical resonance, and its negative – unaffordable – even more so. To suggest that something as important as housing is unaffordable raises a whole range of issues, particularly in societies in which housing provision is to a large extent determined by markets. Indeed, this is the key point: To consider hous­ ing in terms of affordability rather than its social or public function presupposes a different attitude toward housing and the capabilities and expectations of households. This article considers some of the main issues relating to the nature of housing and the manner in which gov­ ernments have subsidized it to ensure that it is affordable. My starting point is to consider the impor­ tance of housing and the need for an adequate provision. I begin with an argument for the fundamental impor­ tance of housing, and then I extend this examining what is meant by good quality housing. The key ideas here concern quality and access. Next, the manner in which states intervene in housing and the implications and assumptions of different forms of intervention are dis­ cussed. Finally, the article discusses the use of the term affordability in more detail and questions the manner in which it has come to be used.

Affordable Housing, Ethics of 73

The Fundamental Nature of Housing It may well be the case that the majority of housing in many developed countries is provided through markets, but this does not diminish the significance of housing in people’s lives, and clearly any ethical discussion of housing needs to consider this fundamental nature. A fascinating discussion of the importance of housing is provided by Jeremy Waldron. Waldron is concerned with the clash of rights, particularly between so-called freedom rights, especially the right to the exclusive use of property, and socioeco­ nomic rights such as the right to housing. His concern is that in countries such as the United States and the United Kingdom, the right to private property is seen as superior to socioeconomic claims. What Waldron seeks to do, there­ fore, is to recast housing – or the right to a place of one’s own – as a freedom right and thus equivalent to the right to private property. However, in so doing Waldron demon­ strates the supreme importance of having a place to be and thus provides a useful ethical justification for housing. In his essay, Waldron explores the nature of street homelessness – of being literally on the streets – and public and private property ownership. He goes on to discuss the issue of freedom to show that certain basic functions, such as sleeping and washing, can and must be seen as rights. He argues that we cannot undertake any sort of a life unless we can carry out these basic human functions. Yet these rights might not be exercisable in situations in which property rules are rigidly enforced. Property rules determine where one has a right to be. They define rights of use and exclusion. Thus, they grant the owner the power to exclude those with whom the owner does not wish to share the property. This situation applies whether the property is owned privately or by a public body. This means that some agents have property rights that they can legitimately exercise over their property. This may involve excluding all others from that property. However, all actions are situated in that they must be done somewhere. One must sleep somewhere, wash some­ where, and so on. Thus, one is not free to perform an action unless there is somewhere where one is free to perform it. Waldron limits his discussion of actions to those absolutely necessary for human survival. However, his list is not an exhaustive one. Indeed, all actions are situated. Homelessness is defined by Waldron as the very condi­ tion in which one is ‘‘excluded from all the places governed by private property rules’’ (1993: 313). The homeless are entitled only to be in public places. They have no right to be on private property unless given permission by the owner. They must therefore rely on public places to undertake their situated functions. This is possible, however, only as long as the public authorities that own this property tolerate them. Just as private owners can exercise their right to exclude, so can public bodies. Waldron is concerned that there was an

increasing regulation and policing of public property that prevented the homeless from exercising their basic functions in public. Waldron gives the example of removing seating from subways in U.S. cities to prevent them from being used by the homeless. This form of ‘zero tolerance’ of vagrancy can also be seen in the attitudes of politicians and public agencies in the United Kingdom. The homeless are seen as having no right to be on the streets because there are enough hostel spaces for them. In addition, begging is seen as aggres­ sive and intimidatory behavior. Waldron argues that ‘‘a person not free to be in any place is not free to do anything’’ (1993: 316). One impor­ tant consequence of this argument is to show that freedom rights do indeed clash. Property rights, as commonly defined in terms of exclusivity of use and disposal, are clearly freedom rights. Private individuals and public corporations that prevent the homeless from accessing their property are thus acting entirely legally and within their rights. Yet there are certain rights we must have – homeless or not – if we are to carry out our basic func­ tions. These too are freedom rights in that we must be free to be in a place before we can undertake these basic functions. However, the situated nature of this freedom means that certain rights can only be fulfilled when the property rights of some are overridden. Likewise, side constraints prohibiting interference to property rights may well mean that the basic rights of others are infringed because they do not have the freedom to be. The home­ less might be so constrained that they are literally unable to do anything without infringing the rights of others. What is significant here is that Waldron is not casting the rights of the homeless as a socioeconomic claim. They are not described as claims for housing, which, being a finite resource, would involve competition between rival claims. Instead, Waldron presents the case for the home­ less in terms of a right to personal freedom. Therefore, the ‘right to be’ is portrayed as having the same fundamental character as property rights. Thus, to generalize from Waldron’s argument, in order for us to undertake certain functions, we must have a place to be: There must be at least at one place where we have the right to be. This is based on the common­ sense notion that human life is simply not possible unless these functions can be undertaken. These must be seen as rights – as legitimate claims on others – and therefore it follows that we need a place in order to undertake them. Thus, the right to be in at least one place follows from the right to undertake certain basic functions.

Quality and Access Waldron does not seek to define fully the extent of provision necessary to fulfill his right to be. It is based on a simple commonsense principle that human beings

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need to undertake certain basic functions in order to exist. Yet, we do not wish merely to survive; we wish also to thrive and to live rich and fulfilling lives. This still means we need a place to be but that a park bench or subway seat is unlikely to be sufficient. I believe we can use the same commonsense criteria to extend Waldron’s place to be to include housing of a modern standard. Housing is one of the most important items that we human beings need. There are many things that we would find difficult, if not impossible, to do without good-quality housing. We might find it difficult to find and keep a job, to learn, to maintain our health, to vote, to claim benefits we are entitled to, and to initiate and maintain stable relationships. However, just because something is important does not mean it is always available. Like most commodities, housing comes with a price tag attached. If we want decent housing, we have to pay for it. It also follows, broadly speaking, that the better the standard of housing we want, the more it will cost us. Therefore, as standards rise, so does the cost. One of the most important issues, then, is how we can afford the sort of housing that we want. We could say that this is simply a case of matching up our income with our aspirations and expectations and buying the best dwelling we can afford. This may be fine for those on reasonable incomes but not for those on low incomes. Many house­ holds will lack a sufficient income to provide them with a dwelling that meets their expectations. It may well be that they could find housing of some sort, but this might not be of a standard that they, or the society of which they are a part, find acceptable. This implies that two issues are of supreme impor­ tance. The first is quality. We are not content with just any type of housing; we want good-quality housing that allows us to live a civilized and healthy existence. We therefore require housing to a modern standard of ame­ nity. This standard, of course, is a relative one, in that it depends on general expectations that exist here and now. It is no good saying that households elsewhere in the world manage with less or that our grandparents were brought up without central heating and modern appliances. The second issue follows from this, and it concerns access. We might readily agree on what constitutes a good-quality dwelling for us here and now. We can describe the particular amenities and standards that the modern dwelling should have. However, that does not mean that everybody has such a dwelling. Many house­ holds might not be able to afford one. There is a clear trade-off between quality and access in that, in general, the higher the quality, the fewer will be able to gain access to it. Quality comes at a cost, and this limits access. Thus, there is a gap that needs to be filled between the aspirations people have for good-quality

housing and their ability to access it because of a lack of income.

Making Housing Affordable The means by which societies have sought to deal with this gap is by state intervention, usually to provide some form of subsidy to households. Other methods can be, and have been, used, such as regulations imposing higher building standards and forcing landlords to improve and maintain their dwellings. However, the main means chosen by many European and Anglo-Saxon governments (but not the U.S. government) has been the direct provision of housing for low-income groups. In this section, I discuss the nature of housing subsidies. My aim is not to go into any particular detail but, rather, to show the ways in which housing is made more affordable and to demonstrate that the manner in which households and landlords are sup­ ported by government carries certain assumptions about the behavior of households and landlords. The most compendious definition of a housing subsidy has been provided by Oxley and Smith. They define a subsidy as ‘‘an explicit or implicit flow of funds initiated by government activity which reduces the relative cost of housing production or consumption below what it other­ wise would have been’’ (1996: 40–41). This is a useful definition for a number of reasons. First, it is neutral, showing that subsidies can be used for all housing tenures. Although there is a tendency to con­ centrate on social housing, we need to be aware that governments also subsidize the private sector through housing allowances and improvement grants and also owner occupiers through a variety of forms of tax relief and exemptions. Second, this definition does not just refer to the use of public funds. The reference to an implicit flow of funds can be seen as a reference to measures such as rent control, where private landlords effectively subsidize their tenants because they are not permitted to increase their rents above a ceiling set by government. The definition covers subsidies ranging from tax relief for owner occupiers to government grants to housing associa­ tions. Finally, it demonstrates that subsidies can be directed toward landlords to assist them in building, managing, and maintaining dwellings but also to the con­ sumers of housing in the form of tax relief or housing allowances. Subsidies can be used to support both produc­ tion (supply) and consumption (demand). Indeed, the distinction between production and con­ sumption is very important in any discussion of housing subsidies in that this relates to how and to whom they are distributed. First, there are subsidies that take the form of bricks and mortar or object subsidies. These are aimed at allowing landlords to provide new additional housing at subsidized rents. From the end of World War I to the

Affordable Housing, Ethics of 75

1970s, these subsidies dominated housing policy in Europe, being seen as the best way to deal with housing shortages; financial incentives were offered to encourage landlords to build dwellings. The main effect of these subsidies was to increase the supply of housing, and thus they are sometimes referred to as supply side subsidies or capital subsidies. Second, housing subsidies can take the form of tax relief to owner occupiers and housing allowances. These are referred to as subject or personal subsidies. The aim of these subsidies is to make housing more affordable by increasing household income. They have the effect of increasing the demand for housing and are accordingly referred to as demand side subsidies. Since the 1970s, there has been a shift in most devel­ oped countries away from object subsidies and toward subject subsidies. In the United Kingdom, for example, object subsidies accounted for more than two-thirds of housing expenditure in 1976 but accounted for less than one-third by 2008. Countries such as Australia, The Netherlands, and New Zealand have almost entirely shifted to a demand side system, whereas this has always been the case in the United States. This change in the balance between object and subject subsidies implies a change in the purpose of housing subsidies. Instead of subsidy being used to increase supply, it is now aimed at bolstering demand. The belief is that there is enough housing for the number of house­ holds in the country. What is therefore at issue is not the quantity of housing but whether all households can gain access to housing of sufficient quality. However, the two different forms of subsidy are also based on two different sets of assumptions about the role of government and the competence of individual house­ holds. If we favor supply side subsidies, this suggests that the main problem is a lack of household income and that individuals are basically capable of choosing suitable housing for themselves if given the resources. Households are given either money directly or a voucher, which enables them to exercise some choice regarding where and in what they live. In this way – in theory at least – they can compete with other households for avail­ able housing without the stigma of being identified as living in welfare housing. From the government’s point of view, it allows it to target support for the most needy in society. One problem with building housing and renting it to a household is that the household may in the future become much more affluent and so objectively not need support (which, of course, is denied to others as long as that dwelling is occupied). This has been a particular issue in the United Kingdom because the government in 1980 introduced the Right to Buy scheme, which allows sitting tenants to purchase their dwelling at a discount. More than 2.5 million households have taken advantage of this scheme, which might indicate that they were no longer

households in priority need. Providing support in the form of a targeted demand side subsidy would prevent this because the subsidy would be withdrawn as income rises, allowing the funding to be shifted to a more needy household. The key issue with demand side subsidies, therefore, is that it implies that individual households are essentially competent and capable of making choices for themselves and their dependents. What they lack is sufficient income, and this can be remedied by a subsidy paid directly to them, which then leaves them to make their own choices. However, supply side subsidies assume there is a more fundamental problem that cannot be solved by increasing household income alone. There is an assumption here that there are structural or societal barriers that prevent households from attaining high-quality housing. This might be because of income inequality, the distribution of property rights, or discrimination. In this sense, increasing the income of households will not necessarily increase the quality of their housing. Here, housing is viewed as a merit good in that, like health and education, it is seen as something that individuals ought to have not merely for themselves but for the benefit it provides to society as a whole. This idea of housing as a merit good implies that the issue may be beyond the understanding and competence of individual households because they may not fully appreciate the complexity of the situation in which they find themselves. For example, a shortage of good-quality affordable housing in some urban areas might lead to increased racial tensions as different ethnic groups perceive others are being preferred for housing. Therefore, providing money might not be enough, but what is needed is direct provision to increase the overall supply of housing at the right quality and in the right locations. It would be fair to suggest that the majority of aca­ demic opinion has been, and remains, in favor of supply side subsidies and is highly critical of the shift toward the demand side. However, this opinion has not been listened to by governments throughout the developed world as subsidies have consistently been shifted away from supporting landlords to build and toward supporting households. Indeed, this shift toward demand side sub­ sidies has raised questions regarding the continued role of social housing. For example, in Britain the government commissioned a review to examine the role of social housing within the context of increasing demand for owner occupation. The outcome of what became known as the Hills review was that social housing was still justi­ fied, and that its advantages in terms of increased quality, affordability, and avoidance of discrimination and polar­ ization outweighed the disadvantages of rationing a scarce resource and the problems of differential market condi­ tions throughout the country. However, the report did call for the provision of more flexible routes into housing

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to be provided, such as shared ownership (in which the household buys part of the dwelling and pays rent on the remaining portion). What struck many as the most significant issue sur­ rounding the Hills report was not its conclusions but the fact that government actually felt the need to commission it and that therefore the very notion of social provision in the future was being questioned. This would have been unthinkable a generation earlier, but now it seemed that government was openly seeking some justification for social housing in the twenty-first century. In light of this, it might be useful to consider in a more abstract way the purpose of government intervention. One means of doing this is to examine the ways in which we can define social housing. This is also important because it highlights the shift in terminology away from social to affordable housing. In particular, it helps us see that what is important now is not so much the structures of provi­ sion but the manner and terms of access. First, we can consider social provision in terms of who or what it is for. Typically, this would be where we see need or vulnerability as the main justification for the provision of housing by government, as well as for its allocation. The primary consideration is the nature of the particular households and their capabilities to provide for themselves. In a system organized in this manner, we would need to devise some means of defining vulnerabil­ ity, need, or capability and use this as the main means of determining access. Many housing systems use a form of assessment to determine priority and perhaps allocate points to particular situations such as medical priority, homelessness, local connection, or even the amount of time spent on the waiting list. In the United Kingdom, this means of access has taken a statutory form with a legal definition of homelessness that forms the basis for priority need. Sine the 1980s, this has been the main means of access to social housing in the United Kingdom. Second, we can define social housing in terms of who owns it. This particularly pertains to countries such as the United Kingdom and Ireland, which built up large stocks of social housing during much of the twentieth century. In the United Kingdom, the issue of ownership has been very important in defining social housing, with the idea of local political accountability being held very strongly. In the United States and Europe, the issue of ownership is perhaps less important as a defining characteristic. Indeed, even in the United Kingdom, it has become less of an issue with the loss of many dwellings under the Right to Buy scheme and the increasing use of private housing associations to build new social housing. The shift in terminology from public to social demonstrates this change, which relates more to function than to ownership. The third means of defining social housing is through who pays for it. Housing can be defined as social if it is

funded by government with the aim of achieving some particular purpose. Thus, we might take the use of gov­ ernment subsidies as a defining characteristic. However, we have seen that object subsidies are diminishing with a greater emphasis on subject subsidies paid to individuals. In addition, there has been an increased reliance in many countries on private finance to fund and maintain social housing. This then calls into question finance as an indi­ cator of social housing. This is particularly so in light of the manner in which housing policy has shifted to offer more direct financial support to owner occupation. Nearly 70% of households in the United Kingdom and the United States are owner occupiers, as are more than 50% of households in most developed countries. The scale of owner occupation is such that it now dominates housing policy, and govern­ ments have been increasingly concerned to be seen to support this tenure. In the United Kingdom and the United States, this has taken the form of tax relief on mortgage interest (which has since been abolished in the United Kingdom) and also through the regulation of mortgage markets and a positive rhetoric of support. Since 2000, the issue has increasingly focused on access to owner occupation and the need to extend the sector to make it available to all households who aspire to it. In the United Kingdom, the manner chosen to extend owner occupation has been to involve the social sector directly through encouraging shared ownership and by the redirection of funds away from social provision to support owner occupation schemes for low-income households. It is this shift in policy that has led to the adoption of the term affordable instead of social. However, before considering the concept of affordabil­ ity, I further explore the issue of supports for owner occupation. As discussed previously, we can justify social provision on the basis that it helps those most in need. It is possible to devise subsidy systems that allow for the with­ drawal of support as a household’s income increases. However, in what sense is it justified to support house­ holds that aspire to owner occupation? There are a number of issues to consider here. The first is that owner occupiers will tend to be more affluent and so we can question whether they need support compared to the very poorest households that have no alternative means to sustain themselves. In response to this, we might argue that this type of support is necessary precisely because these households are not the very poorest. As such, they tend to be excluded from social housing. However, these households might not be able to afford to buy a house on the open market or to pay private sector rents, which tend to be higher than those in the social sector. Therefore, supporting these intermediate groups can be justified because they are neither capable of providing for them­ selves nor are they vulnerable.

Affordable Housing, Ethics of 77

Second, we can object to subsidizing owner occupation on the grounds that households may, in time, make a capital gain and so benefit unduly from subsidy. Households may receive support to purchase a dwelling but then keep all the capital gain once they sell it. Governments might try to devise ways of capturing some or all of this capital gain, but this is very controversial and tends to run counter to the rhetoric in support of owner occupation. Third, and related to the previous issue, is the fact that a subsidy paid to an owner occupier is effectively lost. It cannot be transferred to another household that is more in need of support, and unlike social housing, the dwelling cannot be reused to house a needy household. It can be argued, therefore, that there is a distinct difference between supporting different tenures. However, this ignores the chief political reason for the supports offered to owner occupation, namely that it tends to be largest and most popular tenure. In countries such as the United States and the United Kingdom, where owner occupation comprises 70% of the housing stock, no government can ignore it. Therefore, this is the context in which we need to view the notion of affordability.

Becoming Affordable It should be clear that the use of the term affordable housing is not neutral. It has been adopted to shift atten­ tion away from tenure and to allow government to focus more on supporting owner occupation. This has a number of ethical implications that we need to address. First, despite the fact that there might be an intermediate group of households that do not qualify for social housing, the shift of resources toward this group inevitably means a reduction in support for the poorest and least capable. In what sense is this justifiable, especially because resources will always be scarce and some form of rationing will be required? One of the arguments for demand side subsidies was that they could be targeted, yet the shift from social to affordable housing runs counter to this. Perhaps the most obvious, if hardly most principled, reason is that such support can be seen as being popular and having electoral advantages. Perhaps more generously we might suggest that these policies were formulated in a period of consis­ tent economic growth and so were deemed a suitable means of dealing with heightened expectations. This takes us to a second issue, however, which relates to the level of complicity that these policies had in the creation of the housing price bubbles in the United States and the United Kingdom between 2000 and 2007. It is, of course, difficult to state whether government support cre­ ated the bubble or was merely in response to it, but clearly this support had some impact. The result of the bubble bursting in 2007 has been a considerable increase in repos­ sessions and negative equity and falling house prices. This,

in turn, has placed extra pressure on social provision but at a time when resources have been reduced to allow govern­ ment to support owner occupation. Especially pertinent here is that the very households governments have sought to help are low-income households least able to deal with a downturn in the economy. Therefore, it might be suggest that some of the actions of government in supporting owner occupation have been irresponsible and government has chased short-term political advantage at the expense of a long-term rational approach to meeting the needs and aspirations of all households. The third point about the use of the term affordable housing is more abstract but no less important. The ready use of the term affordable has converted what was a word in general usage into a technical term. Those interested in housing policy now use the phrase affordable housing to relate specifically to nonmarket housing, where there is some form of subsidy either from the developer or from government. It is possible to find local and national government documents that describe the plans for future development that include the phrase ‘of which X percent will be affordable.’ It is, of course, easy to parody such statements: Who would seriously build housing that is not affordable? However, using the term affordable in this manner ignores a key aspect of the debate on housing: When we consider affordability, we need to ask, Affordability for whom? Housing cannot be unaffordable per se – a buyer can be found for even the most expensive dwelling, even if there are only very few capable of affording it – but affordable to particular groups. The real issue concerning affordability is that certain house­ holds, and this may be an increasing or diminishing number, cannot gain access to housing of sufficient qual­ ity. Thus, considering the issue of affordability ethically, what matters is whether all households within a given society can afford (and sustain) housing of the quality deemed appropriate. This qualification of the concept of affordability returns to the discussion of how social provi­ sion might be justified. Affordability focuses on who pays for the housing – the household or the government when the household cannot – whereas we could argue that what really matters is who the provision is for. What is impor­ tant is who is being helped and how this can be justified in light of scarce resources.

Conclusions This discussion can be said to have now turned full circle in that we began with a justification for adequate housing provision based on the premise that housing was a free­ dom right, and that we needed a place to be continue as human agents. What matters is that housing, of an agreed standard, should be accessible to all, and that when this is not possible it becomes a matter of acute ethical concern.

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Shelter is one of the most basic human needs, but we need more than this is we are to lead fulfilling lives as full members of society. We have expectations and aspirations that go beyond our basic needs, and we require that our housing will fulfill these. This does not make any particular presumptions about the nature of the provision – whether it be state or market – but it does imply that our need for housing is not something that can left to chance. Most of us, most of the time, are able to provide for ourselves, but this should not be used as an excuse to diminish the supreme importance of good-quality housing. See also: Homelessness; Poverty; Property Rights; Welfare Policies.

Hills J (2007) Ends and Means: The Future Role of Social Housing in England. London: London School of Economics. [Also known as the Hills report.] King P (1998) Housing Individuals and the State: An Essay on the Morality of Government Intervention. London: Routledge. King P (2003) A Social Philosophy of Housing. Aldershot, UK: Ashgate. King P (2003) Housing as a freedom right. Housing Studies 18(5): 661–672. King P (2006) Choice and the End of Social Housing. London: Institute of Economic Affairs. King P (2009) Understanding Housing Finance: Meeting Needs and Making Choices, 2nd edn. London: Routledge. King P and Oxley M (2000) Housing: Who Decides? Basingstoke, UK: Macmillan. Power A (1993) From Hovels to High Rise: State Housing in Europe Since 1850. London: Routledge. Waldron J (1993) Homelessness and the issue of freedom. In: Liberal Rights: Collected Papers, 1981–1991 Cambridge

University.

Further Reading Centre for Social Justice (2008) Housing Poverty: Housing and Dependency. London: Centre for Social Justice. Clapham D (2005) The Meaning of Housing: A Pathways Approach. Bristol, UK: Policy Press. Cowan D and McDermont M (2006) Regulating Social Housing: Governing Decline. London: Routledge. Harloe M (1995) The People’s Home? Social Rented Housing in Europe and America. Oxford: Blackwell.

Biographical Sketch Peter King is Reader in Social Thought at De Montfort University, Leicester. He is the author of many books and articles on housing issues including A Social Philosophy of Housing (Ashgate, 2003) and Understanding Housing Finance: Meeting Needs and Making Choices (Routledge, 2009).

Ageism H Lesser, University of Manchester, Manchester, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Age cohort The group of people born during a particular period, for example, of 5 or 10 years. Ageism Treating a person less favorably than others because of his or her chronological age. Complete life argument The argument that in a just society the aim would be to try to equalize the benefits that people receive during their whole lifetime. Fair innings argument The argument that those who have not yet reached normal life expectancy have a stronger claim on medical resources than those who have reached normal life expectancy.

Introduction Ageism is a fairly recent coinage on the analogy of ‘racism’ and ‘sexism.’ The definition of ageism – treating a person less favorably than others because of his or her chronological age – gives an indication of its meaning, but in fact its implications are more complex than this approximate definition suggests. The term refers only to wrongful or unjustifiable adverse discrimination on the grounds of age. It can be applied to discrimination against both the old and the young; but this article deals only with discrimination against older people. There are three main areas in which such discrimination operates – employ­ ment, the general treatment of older people, and the distribution of resources – and these are discussed in turn. Before discussing them, note that ageism can take three different forms: using chronological age alone as a ground for adverse discrimination, using as a similar ground a characteristic older people are supposed to possess but do not, and using a characteristic that some possess as a ground for discrimination against everyone older than a certain age. Also note that, like ‘racism’ or ‘sexism,’ it is a term that can be applied to a policy, or a general way of behaving, whether by an individual or a group; to a particular action; to statements and remarks; and to the general functioning of a system or institution. Finally, note that, again as with racism and sexism, ageism can exist unintentionally. A policy may discriminate unfairly against older people without this being the inten­ tion of those who carry it out, and a statement may be unintentionally ageist if it is the case that it would be true

QALY An acronym for quality-adjusted life year, used as a measure for calculating the likely benefit of a particular medical treatment in terms of the years added to people’s lives and the likely level of quality of life in those extra years. Triage A method of selecting those who need treatment most urgently, using as criteria the likelihood of the treatment succeeding and the likelihood of the patient failing to recover without it, so that priority is given to those for whom treatment is likely to make the difference between recovery and nonrecovery over those who will probably recover even without treatment and those who will probably not recover even with treatment.

only if all those older than a certain age had some parti­ cular quality and if, in fact, many of them do not.

Ageism in Employment In employment, there are three stages in which ageism may arise. There may be an age barrier with regard to applying for particular jobs, a rejection of applicants purely on the ground of chronological age, or a compul­ sory retirement age even if a person is still fully competent. These cases are not identical in their rights and wrongs, and a further complication is that different kinds of work involve different ethical considerations. Moreover, the law regarding ageism in employment is different in different places, and it is in a process of change, particularly regarding compulsory retirement, now outlawed in areas of the United States and likely to be at least limited elsewhere in the United States and in the United Kingdom. Nevertheless, there are general ethical issues regarding discrimination in employment against older people, and these are discussed here. Three reasons can be offered to argue that, especially but not only with regard to compulsory retirement, dis­ crimination in employment against older people is not unjust. The first is that the ability to do a job competently decreases with age and is eventually lost: Mental capacity can remain, but physical strength, energy, and adaptability decline. Although this is true, competence is lost by differ­ ent people at different rates and at different ages, and the basic capacity to perceive and reason may never be lost.

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Therefore, to use chronological age as a ground for retire­ ment, or for not employing a person in the first place, seems ageist. The reply to this is that to test for competence in each case would be time-consuming and invidious, whereas simply to allow people to decide for themselves when to retire means that genuinely incompetent people cannot be fired. This is for the reader to decide, but it should be noted (1) that many people reach an age when they want to retire, which reduces these problems, and (2) at least, given that people now live longer and stay healthy longer, retirement ages for many jobs could be increased without letting in the incompetent and inefficient. Second, there is the argument that it is desirable for a workplace, and even a whole profession, to have its mem­ bership spread fairly evenly over the various age groups so that there is a steady but limited change of personnel, avoiding the problems of both lack of experience and lack of the will to adapt and change. There is reason to think that work may suffer if the same people stay in senior posts too long, even if they are doing a reasonable job. Compulsory retirement at a particular age, together with, when necessary, using age as one criterion for appointing new staff, is the obvious way of avoiding these problems. The question, then, is whether the maintenance of effi­ ciency justifies discrimination against older people. The third argument is that there is an injustice to the young if the old remain in work, and particularly in senior positions, too long because different age cohorts ought to have, as a matter of fairness and as far as possible, equal opportunities to find work and to obtain promotion. This obviously depends largely on personal ability, luck, and changes in technology and economic conditions. However, it can still be argued that we have a duty not to make the situation worse by allowing any particular cohort to remain in work so long that many of those after them can obtain jobs or promotion only at a time of life when it has lost much of its value. The argument will be even stronger if it is held that this is not simply a matter of fairness between generations but of what people are entitled to. It could be argued that people are entitled, when this is possible, to the opportunity to work and to strive for promotion at an age when this is most beneficial to them (and sometimes to others). It is clearly only the opportunity to which they have a claim, but to have no retiring age, or a very high one, could be seen as an unjust restriction on the opportunity. Moreover, to put the argument at its strongest, this could be considered to be a matter not just of entitlement to the opportunity to compete for jobs and promotion but also of entitlement based on greater need. The argument then is that the relatively young have, as a rule though inevitably not always, a greater need for work than older people because they often need more money to support their families and because, given the structure of and atti­ tudes in most societies, their psychological suffering is

greater if they have no recognized and respected occupation. This is enough to show that in employment ageism is not quite like racism or sexism. Race and gender should be simply irrelevant to employment opportunities, except insofar as positive discrimination is justified as a tempor­ ary expedient to hasten the progress toward genuine equality of opportunity. However, with regard to age restrictions, although they discriminate against a certain group of people regardless of their suitability for the work, there are genuine arguments for regarding some restrictions as necessary parts of a fair and just employ­ ment structure. The assessment of the arguments on each side is a matter for the reader. Nevertheless, as previously mentioned, there is increasing pressure to raise the age of compulsory retirement or, more radically, to make age-determined compulsory retirement illegal, as has already happened in areas of the United States. These practices will likely increase in the future.

Ways of Behaving toward Older People The next area to be considered is that of manners and human relationships and of what constitutes appropriate, as opposed to ageist, behavior toward older people. It might be thought that this raises no ethical dispute or philosophical problem: Everybody, the old no more and no less than the young, should be treated with courtesy, justice, and kindness. In fact, it raises one basic principle of equal treatment, which is obvious when pointed out but nevertheless sometimes neglected. This is the principle that equality requires both treating people in the same way when they are in the same situation or have the same relevant characteristics and treating them differently when they are relevantly different. On the one hand, this requires that older people are not stereotyped and assumed to be a separate class or species, requiring dif­ ferent (which in practice often means inferior) treatment from the young and middle-aged. On the other hand, it equally requires that the special situations of older people be taken into account and the ways in which they pre­ cisely need to be treated differently from the young be noticed and acted on. One obvious, and very important, example of the dan­ gers of stereotyping is the assumption, still in some areas acted on in practice, that older people are not able to make decisions about their treatment or medication. Certainly, some older people are in this position, and certainly the proportion of, for example, hospital patients who are unable to decide matters for themselves increases with age. However, there is no age over which one can say that no one is competent to make decisions. Chronological age is a fair ground for checking the competence of a patient but no ground for assuming his or her incompetence.

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Regarding failure to adapt to the special situation of older people, four examples, again applying in particular to those being cared for in a hospital or in an institution, may be given. The first is manners. Although the require­ ment to be polite is an obligation everywhere and at all times, an important part of politeness (although not the whole of it) is the observance of etiquette, and this changes over time, as well as being different in different societies. Politeness to older people thus requires some awareness of what they consider polite. The use of first names, to take a well-known example, may be intended to be friendly but has often been seen as inappropriately familiar. Indeed, evidence indicates that it is not always even intended to be friendly but that in some places nurses are trained to use first names as a way of maintain­ ing control. A second example is what is needed to keep a person mentally abreast of his or her situation. Even a younger person, if a victim of an accident or violence or a sudden seizure, may wake up in a hospital and have to be told where he or she is and why he or she is there. Some older people, even if they are by no means incompetent and perfectly able to understand where they are and why, may still need to have things explained to them regularly and repeatedly, in words they can understand (e.g., to be regularly reminded that they are in a hospital). Equal treatment requires that all those capable of understanding what is happening to them have it explained to them, but the explanation needs to take different forms in the lan­ guage used, the elaboration needed, and how often it should be repeated. There is evidence that older patients have sometimes been regarded as irredeemably confused when in fact sufficient reminders of where they are and why would relieve their confusion. Of course, as pre­ viously stated, some older people have become mentally disturbed and are no longer capable of making decisions for themselves. However, where there is no mental dis­ turbance, or one that does not prevent a good level of understanding, justice requires that understanding be maintained and special care be taken in explaining a person’s situation to him or her. Third, there is the physical environment. Much has been done to make buildings and streets places in which older people and disabled people can move around with greater ease and safety. However, there remains a great deal more to do, some of it not requiring any great labor or expense but merely a consideration of what is involved, for example, in having to use a stick, frame, or chair. Once again, the example is practical, but the principle is a philosophical and ethical one of treating people who are different in relatively different ways. At this level, the treatment is an easier problem than many because the ways in which the old tend to be different from the young, physically and mentally, are fairly clear. Thus, what in principle is needed is often clear, although lack of

resources may make it difficult to provide. It should be noted again, however, that the chronological age at which these changes take place, and the degree to which they take place, varies greatly from person to person. Fourth, justice for older people requires more than that they should not be discriminated against. Certainly to some extent and arguably to a considerable extent, society devalues older people and sees them as having nothing to contribute to society and as having only physical needs and no need for a worthwhile occupation and some real human friendship. Fair treatment involves positively resisting these attitudes and organizing what is done for and by older people so that these attitudes are neutralized and, if possible, eliminated – just as there is an aim to eliminate racist and sexist attitudes, and formal equality between men and women, for example, is not enough to do the job. In particular, to care for older people and otherwise leave them alone is altogether inadequate – inadequate as justice and not simply as charity. Again, the application of the principle of treating people simi­ larly in the ways in which they are similar and differently in the ways in which they are different turns out to be, with regard to older people, very complex. What is cru­ cial is (1) an acknowledgment of the principle itself, as the basis of just treatment, and (2) a willingness to look seriously at the ways in which people are alike and the ways in which they are different.

The Distribution of Resources This is the most complex of the three areas requiring discussion. Particularly with regard to health care, of which older people (a growing proportion of the popula­ tion) are inevitably the main ‘consumers,’ there is a major ethical issue of whether discrimination against those older than a certain age is just. There are no less than seven arguments that may be thought to lead to this conclusion. However, three of these arguments are fairly clearly unsound and may be relatively quickly dismissed: It is the other four that require more careful examination. Let us begin with the clearly invalid arguments. The first is the argument that it is natural to grow old and die, and it is wrong to interfere with this process. The short answer is that all medicine is an interference with natural processes, and that in itself interference with nature is neither good nor bad, but it is good when the results are good and bad when they are the reverse. To keep an elderly person alive artificially against his or her will and at the cost of much suffering is unjust and inhumane. However, to restore someone to an existence he or she finds worthwhile is just and humane whether or not this is done artificially. Even supposing a distinction between natural and artificial can be made, and we must remember that in our species the use of artifacts is natural: The

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natural is not in itself good and the artificial is not in itself bad. There are certainly times when the best results, in terms of avoiding suffering, are achieved by allowing what is happening spontaneously to take its course, even when that leads to death. There are other times when the ‘artificial’ saving of the life even of an older person enables the person to have an appreciable period of worthwhile existence. It might be suggested that this misrepresents the argu­ ment, which is an argument from justice, namely that those whom nature has marked for death have no right to be kept alive. However, this argument seems even more absurd: Why should the fact that if untreated they will die be any ground for saying they should not be treated? Again, if consistently applied, the argument would lead to the absurd conclusion that all medical treatment and relief of suffering is wrong. Second, it is argued that older people consume more than their ‘fair share’ of health resources; and this should be limited. However, ‘older people’ are a changing group, so this extra benefit accrues eventually to most people: We must always remember this feature of age distribu­ tion, and that age is different in this respect from race or gender, which do not change, normally, over time. Moreover, it is entirely just that healthcare resources should be distributed according to need; and it is older people, as a group, who are most often seriously ill. To say that the elderly consume more than their fair share of health care is like saying that women consume more than their fair share of maternity benefits. Third, there is the argument that older people have a duty to be altruistic and to leave more resources for the young. This argument resembles one of the stronger arguments, which we shall consider later. However, as it stands, it is logically confused. Altruism, by definition, is a concern for other people beyond what duty requires. It is highly praiseworthy, but one cannot have a duty to be altruistic, and it cannot be right to force people to be altruistic, in the way that they may be compelled to pay their debts or contribute to the maintenance of society. Thus, again, the argument fails.

Triage We now discuss the more serious arguments, beginning with the argument from triage. Triage requires the doctor or nurse, faced with more patients than there is time to deal with, to classify patients into three groups: those who will probably recover, even if untreated; those who will probably not recover, even if treated; and those for whom treatment will probably make the difference between life and death or, for example, disability and full recovery. Top priority is then given to the third group, with the first and second being attended to in whatever time is left.

If it is just to distribute health care according to need, which seems very reasonable, this principle is both just, because it gives priority to those in the greatest need, and also produces the most efficient use of scarce resources. It was devised to deal with emergency situations, originally on a battlefield. However, it seems plausible to argue that because resources are always scarce and there are always more demands for treatment than can be immediately met, triage ought to be used as a general principle for the distribution of health care. If this is done, those who will die soon anyway – that is, the oldest members of society – will have less of a claim to health care than younger people so that discrimination against the oldest will be fair and reasonable. There are three replies to this argument. First, being close to death does not correlate exactly with chronolo­ gical age. Even in younger age groups, the percentage in this situation, although very low, is not zero. It increases with age, but there is no point at which one can say ‘‘everyone over this age is absolutely bound to die very soon.’’ Even if it is right, as it may well be, not to waste resources trying to cure those who will die very soon anyway, and to concentrate on making their last days as easy and comfortable as possible, and even though this group of people is predominantly old, this criterion excludes some of the very old and includes some of the very young. The principle of triage gives one no reason to discriminate on the basis of chronological age. Moreover, the principle ought to operate only when death is really imminent. Given the seriousness of with­ holding treatment, the definition of ‘dying soon’ should be very tight: After all, from one point of view, we will all die soon. The principle might reasonably exclude those with days or weeks to live but not those with years or even months. Finally, even more fundamentally, the justice of extending triage across the board, instead of restricting it to clear emergencies, is very questionable: The argument for doing this is plausible, as stated previously, but ques­ tionable. It is one thing to postpone dealing with, for example, a patient with an uncomfortable but not danger­ ous skin complaint in order to treat an accident victim in danger of bleeding to death. It would be quite another to refuse as a matter of policy to treat the less urgent cases because there were always urgent ones to attend to or to set up a public health system in such a way that non-urgent cases were always or often denied access. To give precedence to the most urgent cases is just, but it is not just to concentrate on them alone: It is just to say that the non-urgent cases have less of a claim than the urgent ones, but it is unjust to say that they have no claim at all. We may thus say both that triage should not be used as a general principle for distributing health care, as opposed to a principle for use in emergency, and that even regard­ ing emergencies, it will admittedly affect the old more

Ageism 83

than the young, but only because of their state of health, not because of their actual age. Quality-Adjusted Life Years In medical ethics, there has been much discussion regard­ ing whether it is possible to determine the best use of medical resources in a given society by estimating which of the various options available at any one time is likely to provide the population with the greatest number of qual­ ity-adjusted life years (QALYs). The idea is as follows. First, we assume that the right use of resources is the one that will do the most good. Then it is argued that in principle, the amount of good likely to result from any particular use of resources is quantifiable by considering (1) the number of people who may be expected to benefit over a given period, (2) the extra years of life that on average the treatment may be expected to give them, and (3) the improvement in the quality of life produced by the treatment – such as reduction of pain or freedom from disability – both in these extra years and in the years they may be expected to live anyway. This can be applied at the macro level, to decide what kinds of treatment a public health service should offer and which should be favored in funding, or at the micro level, to decide which patients should have priority. Use of QALYs favors those who may expect to live longer over those who have a shorter life expectation. Although this does not correlate exactly with age, it clearly favors in general the young over the old. Moreover, it discriminates against the old simply because they are old, regardless of their state of health: In this, it is unlike triage. Can this discrimination be justified, or are there objections to the use of QALYs as a method of deciding how to use medical resources? There are two objections to the use of QALYs. The first is that any precise quantification, even of merely probable results, is possible only in the fantasy worlds of (some) health economists. In the real world, one would have immensely crude approximations. To this it might be replied that even this would serve some purpose. For example, commitment to the use of QALYs would seem, even without elaborate calculations, to favor the conclu­ sion that medical research and resources should be concentrated on conditions that regularly affect the rela­ tively young (e.g., HIV) more than on those that mainly affect the old (e.g., many cancers). It would also lead to the conclusion that preferential access to life-saving treat­ ment should go to the younger rather than the older person, unless the general health of the younger person was much worse. Therefore, the use of QALYs may, to some extent, be possible and may, in some sense, produce an efficient use of resources. However – which brings us to the second objection – is it just? If the earlier argument regarding

triage is correct, then one can say that a total application of this method of assessment would be unjust. The argu­ ment may be restated in the following way: The just way of distributing medical care and resources is according to need. This means that everyone who has a condition that troubles them and that medical treatment is likely to cure or alleviate has a claim to treatment. Needs for treatment vary in strength and urgency so that some claims are stronger than others; if it is impossible to meet all the claims, the strongest should take precedence. However, the weaker claims are still claims: It is just to give pre­ cedence to the stronger ones, but it is unjust to ignore the weaker ones. If this is correct, the use of QALYs, unlike the use of triage, could admittedly justify putting more resources into areas of medicine that help the young or giving preference to younger patients in an emergency for no other reason than that they are younger and probably have longer to live. However, QALYs cannot justify totally withholding resources from a particular area or excluding any particular group, such as those older than a certain age, from treatment. Even this more limited claim for QALYs has not been made out. There is a counterargument that these consid­ erations are simply irrelevant. If the criterion for a claim to treatment is need, then if the young person and the old person are in equal need – for example, both require life­ saving treatment – their claims are equal. To save the younger person may do more good and be a more effi­ cient use of resources; however, it may be argued that what matters is justice, and to favor the younger person simply because he or she is younger is unjust. Thus, the question remains: Are there any grounds in justice, as opposed to efficiency, for discriminating against older people in the provision of healthcare resources?

The ‘Complete Life’ View and the ‘Fair Innings’ Argument There are two arguments supporting the view that some discrimination against older people in the provision of health care is just. The first of these is one version of the complete life view of justice. According to this view, a just society is one in which each member has, during his or her life considered as a whole, an equal share at least of unearned benefits. The emphasis is on the whole life, not on any particular period of it. An ‘equal share’ is, at least in the version of the complete life view with which we are concerned, a share that reflects equal concern for every person’s aims and activities. With regard to health care, this means access to health care that maximizes the possibility of achievement of those aims by removing the obstacle of ill health whenever possible. However, this in turn means that health care in youth and middle age should have priority over health care at the end of one’s

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life, particularly in the last few months, when one is much less concerned with achievement. There are two assumptions here. The first is that a rational person will rate good health at an earlier stage of life as a help toward success and/or worthwhile activity over extending one’s life and, if possible, being relieved of suffering and disability toward the end of it. The second is that this is something to which a society concerned with justice should pay attention. The first assumption is, to say the least, dubious: It is not clear either that this is what most people would prefer or that those who do not are being any less rational or sensible than those who do. (Taking care for one’s old age has sometimes been seen as a paradigm of rationality.) The second assumption seems clearly false. Justice in health care surely requires simply that needs be met, and only greater need can be a reason for preferential treatment: What people are likely to do after their needs have been met either raises an altogether different moral issue or (usually) is simply irrelevant. This brings us to the fair innings argument, which is the one argument left for prioritizing the needs of the young over those of the old. The expression is a metaphor taken from cricket, but it can be understood without knowledge of the game. The argument is that those who have reached the normal span of human life, as currently defined (perhaps 80 years in the United Kingdom and the United States), have less claim on resources than those who have not yet had their ‘fair innings.’ Thus, it is right, when necessary, to favor younger people over those who have ‘had their life.’ This argument has the merit of being based on justice and also fitting ordinary moral ideas of what seems fair. However, there is a question regarding how much it justifies. It does not provide a general argument for pre­ ferring the claims of younger over older people but only for preferring those of people who have not yet reached the normal span over those who have. To go on to argue that those further away from the span have a claim over those nearer to it would require some additional argu­ ment; and it is not obvious how this could be done. Also, the point made previously about triage would still apply: Those whose needs are less important must nevertheless not be treated as if they have no claim at all. Thus, some preference might be given, on these fair innings grounds, to allocating resources to dealing with diseases affecting the young over geriatric medicine – but only a slight preference. In any case, it might plausibly be argued that geriatric medicine already receives less than its fair share of resources. Similarly, in an emergency preference should be given to a younger person; however, for an older person to have to wait for days in pain before being treated while younger people are allowed to ‘queue jump’ (and this is regrettably not unknown) is neither just nor humane.

Moreover, although the fair innings argument seems to appeal to a legitimate principle of justice, it is not the only one involved in these issues. Some have argued that all those who wish to live, old or young, have an equal claim so that if they cannot all be saved, justice requires taking them at random, or ‘first come, first serve,’ rather than pretending some have a better claim than others. Some have argued that the old have earned a right to treatment in a way that the young have not, either through having worked for longer or through having paid more taxes or, in a system such as that in the United Kingdom, having contributed through their national insurance contribu­ tions to the welfare of the generation preceding theirs so that they are entitled to expect the same from the gen­ eration after. It can also be argued that some people in this old group had difficult lives when young and middle-aged and are entitled to a final period of relatively pleasant existence rather than to be told they have had their fair innings. The fair innings principle, although accepted by old and young, is one principle of justice among several, and it is not always clear when it should be followed and how much its application should be limited.

Summary With regard to ageism, three areas are particularly impor­ tant, although ageism is by no means confined to them: employment; general attitudes; and the distribution of resources, particularly health resources. Regarding gen­ eral attitudes, it is not in dispute that discrimination against older people is wrong. The complex problem is to work out what nondiscrimination entails: when it involves treating old and young alike, when it involves treating them differently, and in what ways the treatment needs to be different. With regard to employment, some­ times there is a problem of judging when a person is legitimately discriminated against because he or she would do the job less well and when there is simply prejudice based on assumptions about the effects of age. There is also a general problem of balancing the legiti­ mate claims of the old and the young. With regard to the distribution of resources, there are a number of bad argu­ ments for discriminating against older people, and these need to be refuted. However, there are also grounds for stating that there are some situations in which giving preference to younger people is fair. The problem is to decide exactly when this is so and when, on the contrary, it constitutes injustice to the older members of society. To date, these issues have been underdiscussed, at least on a serious philosophical level. If the distribution of resources and opportunities is to become more just, and if more people are to receive proper respect and consid­ eration, ageism needs to be raised as a philosophical, practical, and human issue. Our existing practices and

Ageism 85

This article is in part based on unpublished work by Dr. Michael Rivlin and Dr. Richard Wagland.

Cohen LM (ed.) (1993) Justice across Generations: What Does It Mean? Washington, DC: American Association of Retired Persons. Daniels N (1988) Am I My Parents’ Keeper? An Essay on Justice between the Young and the Old. New York: Oxford University Press. Dworkin R (2000) Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Gormally L (ed.) (1992) The Dependent Elderly: Autonomy, Justice, and Quality of Care. Cambridge, UK: Cambridge University Press. McKerlie D (2002) Justice between the young and the old. Philosophy and Public Affairs 30(2): 152–177. McKerlie D (2007) Justice and the elderly. In: Steinbock B (ed.) Oxford Handbook of Bioethics. Oxford: Oxford University Press.

See also: Affirmative Action; Autonomy; Dignity; Elderly, Social Attitudes Toward.

Biographical Sketch

attitudes toward older people need to be carefully exam­ ined, and those found to be ageist need to be altered accordingly.

Acknowledgments

Further Reading Bell JM and Mendus S (eds.) (1988) Philosophy and Medical Welfare. Cambridge, UK: Cambridge University Press. Borglin G (2005) Quality of Life among Older People. Lund, Sweden: Lund University. Callahan D (1987) Setting Limits: Medical Goals in an Ageing Society. New York: Simon & Schuster. Clayton M and Williams A (eds.) (2002) The Ideal of Equality. New York: Palgrave Macmillan.

Harry Lesser is an Honorary Fellow of the Centre for Philosophy at Manchester University, having been successively Lecturer in Philosophy there from 1970 to 1990 and Senior Lecturer from 1990 to 2008. He is author of a number of articles in Ethics and Medical Ethics, and he is co-author, with Raymond Plant and Peter Taylor-Gooby, of Political Philosophy and Social Welfare, re-issued by Routledge in 2009. He has also edited, in particular, two collections: Ageing, Autonomy and Resources (Ashgate, 1999) and Justice for Older People (Rhodopi, forthcoming).

Agricultural Ethics B Mepham, University of Nottingham, Nottingham, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Agrarianism A social and political movement, and its associated philosophical theories, that seeks to maintain the values and economic status of family farmers. bST Bovine somatotrophin is a growth hormone, produced by genetic engineering techniques, which stimulates the milk yield of dairy cattle when injected subcutaneously or intramuscularly. It was the first product of recombinant DNA technology to be used (in certain countries) in animal farming. EU (European Union) The international association created by the Maastricht Treaty (1992) which consolidated changes made earlier following the creation of the European Economic Community (EEC). Homeostasis The ability of a physiological system to maintain internal stability, as a consequence of the coordinated responses of its constituent parts to stimuli that tend to disturb normal conditions. GDP (Gross Domestic Product) The market value of all final goods and services made within a country’s borders in 1 year, which is often taken to be a basic measure of a nation’s economic performance. Green Revolution The significant increase in agricultural productivity, dating from the 1960s, which resulted from the introduction of high-yielding varieties of grains, extensive agrochemical use and improved crop management techniques. LEDC (Less Economically Developed Countries) A term that usually correlates with low incomes and low human development indices; but unlike the term ‘less developed’ it avoids any implication of inferior cultural development. MEDC (Most Economically Developed Countries) A term often equated with the countries belonging to the Organization for Economic Co-operation and Development (OECD), such as the United States and United Kingdom. The 30 OECD countries, which all accept the principles of representative democracy and the free market, are high income economies with high human development indices.

Introduction The absolute requirement for safe, nutritious food in order to survive and flourish, coupled with uncertainties about its universal supply in adequate and affordable amounts,

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Natural capital The natural environment together with its living systems, defined in terms of the stock of its environmental assets, viz., soil, atmosphere, minerals, water, forests, fauna, and wetlands. These provide the materials that constitute the raw input or consumable products of human production. Precision farming The application of scientific understanding of nutrient cycling and hydrology to intensively managed crop production systems in order to reduce chemical inputs and the generation of pollutants. RDA (Recommended Dietary Allowance) The average quantity of a nutrient in the diet that is considered necessary to maintain good health. The actual amounts of each nutrient required differ from person to person. Technological treadmill The process of continuing technological advance, associated with capital intensification, increased output and redistribution of productive assets, which together with the inelastic demands that characterize agricultural products, effectively compels farmers to adopt the latest technological innovations in order to remain financially solvent. WHO (World Health Organization) The United Nations agency charged with directing and coordinating efforts on a global scale to promote health and overcome disease by technical assistance, research and education. Zero-sum A system in which any gains are exactly offset by equal losses. For example, in such cases, material improvements in the most economically developed countries result, often unfairly, in further impoverishment of less economically developed countries. Zoonotic disease An infectious disease that can be transmitted from nonhuman animals, both wild and domestic, to humans, or from humans to animals. Bovine spongiform encephalopathy (BSE) in cattle is a notorious example in which consumption of infected beef led to some people contracting the incurable, fatal brain disease CJD (Creutzfeld Jakob disease).

predicate a crucial role for ethical deliberation in agricul­ tural decision-making. Yet, until very recently, there was little explicit recognition of the critical role of ethics in virtually all decisions that influence agriculture. It seems that even so vital an activity was not deemed a suitable

Agricultural Ethics

focus of the abstruse intellectual reflection that constituted ethics. However, now, in the twenty-first century, it is widely recognized that several concerns relating to the production, safety, quality, availability, marketing, and sus­ tainable supply of food raise important ethical questions. In fact, agriculture is about much more than food supply. Its major products may be classed as food, feed, fiber, fuel, flowers, pharmaceuticals, and raw materials; and ethical issues are sometimes critical in consideration of the relative priority that each merits. Of course, this alliterative list obscures the great variety of products within the identified categories (including, for example, crops, meat, milk, eggs, wool, and biofuels) and the wide range of practices involved, such as plant breeding, animal husbandry, use of agrochemicals, genetic modification, and organic systems. There are also uncertain boundaries between agriculture and closely related activities such as forestry, fisheries, horticulture, and environmental con­ servation. Traditionally, the farm gate served as a convenient demarcation between agricultural production and postharvest activities, such as food processing and marketing, but here again it is difficult to draw rigid distinctions because some inputs to the production pro­ cess (e.g., animal feeds) are themselves agricultural products that are subsequently imported onto other farms. Homely talk of the farm gate is useful in some con­ texts, but in others it is highly deceptive. This is because agricultural activities and postharvest activities have become integrated, both horizontally and vertically, as parts of globalized industries. Thus, rather than referring to food production on farms it is often more meaningful to refer to the global food system, in which just a few transnational companies may be involved in providing seeds and associated agrochemicals, in manufacturing agricultural machinery, in food processing and manufac­ ture, and in global food retailing. The power exerted by such companies depends on factors such as the:

• • • • • • •

large-scale of their resources; integration of their operations (from growers through to consumers); exercise of intellectual property rights (e.g., patents) on key technologies; access to major sources of finance; powerful influence on product marketing (e.g., through advertising); ability to manipulate markets to financial advantage; and ease with which they can switch operations from one source or product to another depending on prices and conditions.

In addition to these commercial factors, governments exert a powerful influence through political and legal controls designed to protect nations’ food security, for example, by subsidizing some farmers and imposing tariffs and other barriers to international trade.

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Moreover, although agriculture is a technology (argu­ ably, society’s first technology) ethical questions are generally considered most critical in respect of the ways agricultural practices and products affect people (both now and as future generations) and nonhuman organisms (both as farmed animals and wildlife). So broad is the range of issues encompassed by agri­ cultural ethics that space limitations must confine these introductory comments to a brief overview, in which the principal aim is to focus on examples of ethical issues. For present purposes, an ethical issue is defined as a case where one or more differences of opinion are sincerely held by people who, at some level of deliberation, claim to justify their opinion by appeal to generally recognized ethical theory. Some of these differences may subsequently be resolved by more knowledge, deeper understanding or reassessment of the value of the ethical theories in particular cases. But agreement, even between well-inten­ tioned discussants, does not always prove possible, and in such cases the best outcome may be a reasonable compromise. The strategy adopted below to address these ethical issues has three aims: a brief overview of agriculture and the types • ofto provide ethical issue it raises; propose a conceptual tool for facilitating ethical • toanalysis of these issues; and to explore issues in three case studies in order to • provide an the illustration of ethical analysis in practice.

Ethical Issues in Agriculture: An Overview Ethics of Agricultural Systems Traditionally, agricultural products are considered to result from the interaction of three types of input, viz., land, labor, and capital, although almost invariably two other important inputs, solar radiation and rainfall, are also vital to the process. Land is the substrate for product growth and development, labor provides appropriate energy and skills to cultivate and harvest products, and capital, enabling the purchase of a wide variety of asso­ ciated skills and materials (e.g., seeds, animals, irrigation systems, harvesting machinery, and agrochemicals), is aimed at improving productive efficiency, reducing losses, and enhancing product quality. As a production process, agriculture demonstrates many unique features, which are largely a consequence of the fact that it: on the exploitation of living organisms; • depends is primarily an open system, maintaining the efficiency • of which entails strategies to counter adverse influ­ ences, such as pests and climatic extremes;

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affects and is affected by the physical and biolo­ • both gical environment in which it is practised; dependent on recycling processes, by means • isof highly which excreta and other wastes are reincorporated

•

into new products; and places exceptional demands on human ingenuity to ensure a wise use of resources that will support current and future human generations in a sustainable manner.

Some farmers enthusiastically adopt technological approaches in seeking to maximize productive efficiency, while others (influenced by the technological treadmill; see Glossary) do so more reluctantly in order to remain financially competitive. In crop production, these tech­ nologies include use of irrigation; chemical pesticides; synthetic fertilizers; and mechanized systems for plowing, spraying and harvesting. In several countries, some of these objectives are achieved by use of genetically mod­ ified (GM) seeds. Crops produced may be used as human food, animal feed, or biofuels; or provide a diversity of materials, such as cotton and tobacco. Farmers raising animals may use intensive husbandry systems, for example, in which large numbers of poultry are confined to battery cages or broiler houses, routinely fed antibiotics to enhance yields, or injected with hor­ mones to stimulate muscle growth or milk production. Many animals, receiving feeds formulated to maximize productive efficiency, are housed under environmentally controlled conditions (thus minimizing energy expendi­ ture by the animals to achieve optimal temperature and humidity) and are often subject to mechanized systems, such as mechanical milking. Animal management, espe­ cially in intensive systems, also often adopts mutilation procedures, for example, castration, branding, and debeaking. The breeding of farm animals may involve use of reproductive technologies, such as artificial inse­ mination and embryo transfer. The biological similarities between farm animals and humans have been responsible for several zoonotic disease outbreaks (see Glossary), for example, BSE and avian influenza, with serious con­ sequences for public health, animal welfare, and government finances. Other farmers employ agroecological farming systems, of which organic farming is a well-known example. Organic agriculture relies on crop rotation, composting, biological pest control, and mechanical forms of cultiva­ tion to sustain soil productivity. Farms certified as organic are inspected at least annually to ensure compliance with the official standards, which cover all aspects of food production, animal welfare, and wildlife conservation. However, it is important to appreciate that the essence of agriculture is to modify or manipulate natural ecosys­ tems to serve human ends, and the extent to which this is deemed appropriate is ultimately a matter of human judgment.

But while it is usual to describe agriculture in struc­ tural and organizational terms, it is also important to recognize that humanity’s primeval association with the land, even if only rarely articulated, and perhaps more sensed than known, imbues agriculture with unique trans­ cendental, allegorical, and spiritual associations that have few parallels in many people’s largely urban experience. Our ancient dependence on the land, from which life emerged, seemingly invests the fertility of soil and its cultivation with a profound value that it is difficult to quantify. When, in 1946, Eve Balfour named the Soil Association (now the principal UK organic farming body), she surely sensed this intuition, and the alliterative resonance of the words ‘‘soil’’ and ‘‘soul.’’ Agriculture can thus be viewed from many perspec­ tives. It is a technology, an economic activity, an essential component of public health, a fundamental basis of sus­ tainable life-support systems, and an esteemed way of life. It follows that enquiries in agricultural ethics may involve insights from the biological, environmental, and social sciences as well as from philosophy. Ethics and Agricultural Economics and Politics Over one-third of the world’s labor force is involved in agriculture, although in developed countries such as the UK the figure is only about 1%. Even so, agricultural production accounts for less than 5% of the gross world product (see Glossary). Such data emphasize the crucial fact that agriculture is for most of its practitioners pri­ marily a commercial activity, which within a capitalist economic system is subject to the principles of supply and demand. But because of the vagaries of the weather (a drought one year might be followed by floods the next), forward planning is inherently difficult. Poor har­ vests are clearly bad news all around, but for farmers so is a glut, because market prices can fall drastically. To ensure adequate food supplies for their populations, many governments have employed measures designed to protect their farmers from bankruptcy when faced either with unpredictable climatic challenges or from the impor­ tation of products produced more economically in other countries, where wages are lower and/or growing condi­ tions more favorable. For example, after the 1939–45 World War, countries in Europe established the European Economic Community (EEC), which made pro­ vision for a Common Agricultural Policy (CAP), the main objectives of which were to increase agricultural produc­ tivity, ensure fair living standards for agricultural workers, stabilize markets, guarantee a secure supply of food, and make products available to consumers at reasonable prices. Meeting these objectives entailed paying subsidies to farmers, protecting markets from foreign imports by imposing levies and quotas, and maintaining food prices by taking surplus produce off the market. Because farmers

Agricultural Ethics

were paid regardless of consumer demand, this policy led to the notorious butter mountains and milk lakes. The effect of the CAP was to increase output, ensuring plentiful cheap food (a trend designated productivism), but it has also led to an excessive use of agrochemicals (which are detrimental to human health and wildlife), increased use of fossil fuels (with adverse environmental impacts, for exam­ ple, contributing to global warming), and intensive animal production systems (with the detrimental impacts on ani­ mal welfare noted above). Although the CAP has since undergone several reforms in the European Union (see Glossary) to mitigate the former adverse effects and encou­ rage practices that conserve the environment, it is arguable that much more reform is required. An important consequence of productivism is that smaller-scale farms tend either to go out of business or are swallowed up by large businesses. Agribusinesses pro­ gressively replace family farmers, whose children often break with tradition and leave farming all together. For those who value agrarianism (see Glossary), this is seen as a detrimental cultural change, in that it often undermines the established social structure of villages, as former farms are bought up by urban commuters with little interest in preserving the social life of village communities. Different worldviews are here in conflict. At one end of the scale is an anthropocentrism that considers mankind morally free to dominate nature in the interest of human pursuits, while at the other end is an ecocentrism that regards people as mere participants in nature, placing us under ethical obligations to respect the intrinsic nature of non­ human life and the biosphere as a whole. The former view is sometimes criticized for its narrow commercialism, the latter as unrealistically sentimental. Arguably, the sound­ est ethical approach might lie somewhere between these extremes as a form of moderated anthropocentrism, that has been designated stewardship. Because demand is assessed in terms of ability to pay, many poor people are unable to buy enough food to satisfy basic nutritional requirements. In consequence, the United Nations Food and Agriculture Organization (FAO) has estimated that about 850 million people are seriously malnourished, of whom 820 million live in LEDCs (see Glossary). The enormity of the problem is perhaps well-illustrated by realizing that for each person in the UK there are 13 others in the world who are starving. In fact, at the time of writing (2009), the situation appeared to be deteriorating rapidly, with high food prices meaning that almost one billion people were affected, a figure more likely to increase than decrease. Of course, hunger is not just an unpleasant feeling of gastric emptiness. Malnutrition leaves people vulnerable to many diseases, drastically reducing life spans, while those who survive are usually markedly stunted both physically and intellectually.

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Ethical Analyses of Agriculture: The Ethical Matrix Ethics is the branch of philosophy that deals with the nature and methodology of moral judgments, that is, questions concerning how we should live. In more acces­ sible terms, it is about acting in ways that are deemed rightful and/or that are conducive to good outcomes. There are several competing philosophical theories of the nature of ethics, for example, in terms of its rational, psychological, biological, or societal origins, and different theories place different degrees of emphasis on the impor­ tance of pursuing the right as distinct from the good. Ethical decision-making depends on an accurate under­ standing of the facts of a matter, especially where, as is often the case in agriculture, the facts are of a technical nature. This can be intrinsically difficult because lay people often feel obliged to trust the opinions of experts, who may themselves have a vested interest in, or (perhaps unconsciously) a bias toward, a particular viewpoint. Skillful communicators may be persuasive more by their rhetoric than by their reasoning, while expensive adver­ tising campaigns demonstrate their efficacy in influencing consumer purchase decisions. Within the field of applied ethics, it is also often important to distinguish between personal ethical deci­ sions, which might rely on considerations that it would sometimes be difficult to explain to others, and those ethical decisions that are part of social ethics. Arguably, the latter, which typically underpin political, legal, and commercial practices, need to be explicit and transparent. In this article, the emphasis is on social and environmental ethics in that it focuses on policy issues relating to agricultural practices, rather than individual food choices (such as vegetarianism), although personal, social, and environmental concerns are clearly ultimately inseparable. In discussions of agricultural policies, there is a com­ mon tendency to assess the best decisions as those that will most effectively produce the desired results, whether these are improvements in yield, animal welfare, farmers’ wages, food safety, or environmental conservation. This so-called utilitarian approach depends on prospective cost/benefit analysis, with the aim of maximizing the difference between the two elements. Utilitarianism is a form of consequentialist ethical theory often favored by those who feel that its apparently quantitative basis ensures more objectivity of outcome than theories that depend on qualitative criteria. However, while utilitar­ ianism has a certain intuitive appeal, deeper reflection suggests that it has certain limitations. For example, pre­ dicted outcomes may not materialize (or, at least, to the extent envisaged), the time-scale for assessment of the consequences of actions is indeterminate, and decisions

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Agricultural Ethics

as to who or what to include in the cost/benefit analysis are usually problematic and/or incapable of accurate assessment. Moreover, in its original formulation, utilitar­ ianism sought to maximize happiness, such that its eighteenth-century author Jeremy Bentham referred to a ‘‘felicific calculus.’’ A major problem here is defining happiness, which might either be difficult to pin down or essentially trivial. Arguably, more certainty is possible if instead we aim to reduce unhappiness, for example, the misery of those who are starving, and this negative utili­ tarianism may prove a more satisfactory basis for action. A major alternative to utilitarianism in ethical delib­ eration is deontology, which is based on rightful intentions rather than good results. Rights theories assert that certain actions are categorically right or wrong, irre­ spective of predicted outcomes. Thus, honesty, tolerance of others’ beliefs, and treating others fairly (in short, doing unto others as you would have them do unto you) are principles that define your correlative duties to others who possess the same rights as you do. Another approach, virtue theory, concentrates on personal character. Rather than focusing on individual acts, it emphasizes the quest for living a virtuous life. However, although ethical theories are usually described in terms that accentuate their distinctive features, in prac­ tice most people’s lives are probably influenced by norms that (if only unconsciously) combine strands of the different ethical theories. The theories, that is to say, have become incorporated into the so-called common morality, which encapsulates the norms of behavior and belief that charac­ terize a given social group. It is an important role of applied ethics to unpick the various strands and subject them to critical analysis. Often, the principles come into conflict, so that in specific circumstances one will have to be assigned more weight than others. Where the moral compulsion of principles is considered capable of moderation in the light of overall circumstances, they are appropriately called prima facie principles.

An important element of the common morality is recognition of the respect due to three prima facie prin­ ciples, viz., well-being, autonomy, and fairness. If these principles were applied to the interests of different groups, such as farmers, food consumers, farm animals, and wildlife, a full ethical analysis would need to consider how (proposed) alternative practices (might) impact on the principles for each interest group and the relative impacts on the different interest groups. A tool that has found useful application in deliberation on a range of issues is the author’s ethical matrix, a generalized form of which, relevant to consideration of the ethical implica­ tions of an unspecified animal production system, is shown in Table 1. The third row of the matrix would clearly be omitted when considering an arable system. In the 12 numbered cells, the generalized ethical prin­ ciples (which encompass utilitarian and deontological theories) are specified in ways considered appropriate for each interest group. Neither the groups identified nor the specifications proposed are intended to be cate­ gorical, but prior agreement would be necessary if the matrix were to be employed usefully in deliberative dis­ cussions. While it does not prescribe any particular decision, the main advantages of this conceptual tool are: of the ethical basis of decision-making, • clarification especially by committees; provision of a means of explaining and justifying ethi­ • cal judgments; and facilitation of the identification of areas of agreement • and disagreement. Accepting the notion of prima facie principles amounts to acknowledging that, at least in the case of judgments in the fields of social and environmental ethics, an ethical course of action is one arrived at ‘all things considered.’ In practice, people who differ on specific judgments, for example, over the moral significance of animal suffering in a particular agricultural system, may still achieve an

Table 1 A generic ethical matrix relating to an unspecified animal production system Respect for:

WELLBEING

AUTONOMY

FAIRNESS

FARMERS

1 Satisfactory income and work

2 Managerial freedom

3 Fair trade laws

CONSUMERS

4 Adequate supply of safe and acceptable food

5 Informed choice

6 Access to affordable food

Welfare

8 Behavioral freedom

9 Intrinsic value

10 Conservation

11 Biodiversity

12 Sustainability

FARMED ANIMALS

WILDLIFE

7

See text for description of its use.

Agricultural Ethics

overall consensus on how the system should be regulated. But in other cases, use of the matrix helps to explain why judgments differ. For example, the biotechnology involving injection of bST (see Glossary) into dairy cows might be considered to respect the principles specified in cells numbered 1, 2, 3, 4, and 6. However, while some of those claims are open to challenge, it is also arguable that the principles speci­ fied in cells 4, 5, 7, 8, and 9 are infringed. Ethically justified decisions on whether or not to license bST for use in commercial dairying thus depend on how the prima facie principles are weighed. This is an interesting example because it illustrates the difference in weighing of the principles in the United States, where bST is employed, and in the European Union, where its use is banned. In the following three case studies, reference to rele­ vant cells of the matrix (e.g., c5 refers to cell 5) is made as a means of facilitating ethical deliberation. The case stu­ dies are intended to be considered as a whole, because concepts introduced under one heading are often also applicable in other contexts.

Case Studies Global Food Security Currently, the global production of food is adequate to feed the world’s 6.5 billion people, although its distribu­ tion is grossly inequitable (c6), with about one billion people suffering from serious undernutrition, while another billion are overweight (of whom 300 million are clinically obese). Thus, respect for the principle that consumers should have an adequate supply of safe and acceptable food (c4) is infringed. This is an ethical issue because people hold different opinions, which they might justify by appeal to ethical theory, on what should be done about the situation. Although some people argue that hunger in LEDCs is none of their business, this view, which is certainly not evident in the common morality, is not discussed here. Generally, one or more of three reasons are advanced as to why most people in MEDCs (see Glossary) should care about the starving billion, viz.: of sympathy, because where we are born and how • out we are nurtured is entirely a matter of luck; as a form of restitution, since in many cases people in • MEDCs benefit from privileges that are derived from

•

unfair earlier exploitation of LEDCs, for example, in the colonial era (conditions which, it might be argued, persist today); and on the basis of prudence, since living in a highly unequal world is likely to result in social unrest and terrorist violence by those who feel victims of injustice.

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If these reasons, which are based on both deontological and utilitarian theory, are accepted as sound, what are the ethical implications for the way food should be produced and distributed in future? Massive increases in yields have been achieved over the past 50 years as a result of the Green Revolution (see Glossary), new animal breeds, and various other techno­ logical advances. However, it is predicted that by 2050, the global population will have increased by 50%, and if adequate nutritional standards are to be secured for everyone and food safety ensured, the demand for food (exemplified by global grain consumption) will need to double. To respect the principles illustrated in the ethical matrix, this increase will have to be achieved at the same time as preserving environmental integrity (c10, c11, c12), improving animal welfare (c7, c8) and respecting, without any discrimination, everyone’s rights and welfare (c4, c5, c6). What are the prospects of meeting this formidable challenge? Ethical Determinants of Food Security Policies In 1972, the results of an extensive computer study of global resource use, published by Dennis Meadows and colleagues, suggested that if the current trends in popula­ tion growth, food supply, resource use, and pollution were to follow their established trajectories, humanity would face virtual extinction by the mid-twenty-first century, as food supplies shrank and pollution levels rose. While most people considered such predictions alarmist, the essential point, implied by the title of Meadows’ report, was that there are finite limits to growth, which it was essential to address with urgency. Moreover, the report omitted reference to the adverse environmental effects of greenhouse gas emissions, of which agriculture is now estimated to account for 30% of the global total. Agriculture, in the forms of pastoral or intensive sys­ tems, accounts for about half of usable global land area, and there are few prospects of this area increasing. The way in which this agricultural land has been (mis)man­ aged has led to loss of natural ecosystems and to detrimental effects, for example, as a result of excessive applications of fertilizers. Were the same procedures to be used to meet the predicted doubling of food needs, this would entail a tripling of such fertilizer usage. Thus, regarding agricultural sustainability as an ethical require­ ment (c12) will entail serious, informed deliberation. While it is possible to consider respect for the envir­ onment (c10, c11, c12) in altruistic terms – a viewpoint most consistent with an ecocentric worldview – the moti­ vation might also be anthropocentric, because society receives many benefits from the ecosystem. This natural capital (see Glossary) was estimated in 2000 to be worth US$33 trillion, that is, more than twice the global world

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Agricultural Ethics

product (see the section titled ‘Ethics and Agricultural Economics and Politics’). Different worldviews are often divisive, but in this case there is likely to be an over­ lapping consensus, from those who adopt more anthropocentric or more ecocentric views, that we need to take serious measures to protect the environment. But two further ethical issues are critical:

resulting in an increasingly degraded and divided planet. Thus, it seems that an ethically sound approach to sus­ tainability would seek a prudent combination of intensivist and ecologically sensitive approaches. An example of the effective marriage of these two strategies is integrated pest management (IPM), which can involve a combination of four practices:

control: applying pesticides at minimal effec­ priority should be assigned to ensuring future • pesticide • What tive doses; global food security? control: using natural enemies of pests; • biological • How is future global food security to be achieved? cultural control: • pest habitats; andusing agricultural practices to disrupt The answer to the first question clearly depends on how much we feel obliged to protect future generations. • plant resistance: breeding pest-resistant varieties. Although some people consider such a concern is mis­ guided because forecasting is usually unreliable, people with children and/or grandchildren might feel more dis­ posed to do so because showing empathy for their own family usually seems natural. However, universalizing this intuition requires deeper reflective analysis. Thus, according to the principles of common patrimony, each generation has an obligation to leave the planet not only in as good a condition as it found it but also in a robust state that will support a number of choices, including those not currently foreseeable. Deciding how to achieve sustainable food security (the second question) is more problematic. The central ethical issue is the priority to be assigned to increasing produc­ tivity (intensivism) relative to those deontological (agroecological) motives that modulate productivism. Intensivist systems typically emphasize output, energetic efficiency, economies of scale and exploitation of geopo­ litical advantage (i.e., globalization). Agroecological systems (such as organic farming) emphasize ecological integrity, localization of operations, agreeable employ­ ment, equitable food provisioning and animal welfare. In many respects, the two approaches parallel the worldviews represented by anthropocentrism and ecocentrism. Intensivist approaches usually consider that the required increase in productivity will entail use of mod­ ern (bio)technologies,. This science-based strategy is endorsed by major agribusiness companies and govern­ ment-financed research councils in MEDC. However, the nature and rapidity of recent changes in food supply and consumption patterns suggest to other informed analysts that a different approach is required. The report of the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD), endorsed by 400 international scientists, argued that intensivism has led to an uneven spread of benefits that imposed increasingly severe costs on small-scale farmers and farm workers, on rural communities and on the environment. While not ruling out modern technology, IAASTD emphasised that the continuing focus on pro­ duction alone threatened our agricultural capital, and was

IPM has been shown to greatly reduce the necessary application of chemical pesticides, which at higher doses have had such adverse impacts on the environment (c10, c11, c12). IPM is but one instance of precision farming (see Glossary), an approach that can also, in theory, be used to increase the efficiency of nutrient and water use, and the maintenance or restoration of soil fertility. Capitalizing on potential animal–ecosystem synergies is another strategy to improve effective food production while respecting animals’ interests (c7, c8, c9). Examples are grazing sheep on hilly pastures (converting inedible grass from uncultivable land to a nutritious product, while fertilizing the soil) and growing legumes such as beans, which through the agency of their root bacteria fix atmo­ spheric nitrogen. It is, however, an inescapable fact that prioritizing deontological principles (e.g., c5, c8, c11) will entail a global redistribution of resources, with MEDCs as a whole receiving less in order to meet the needs of LEDCs. While there are some circumstances in which it is possible to achieve win–win results, access to many goods is governed by the zero-sum criterion (see Glossary). Indeed, although it is common to equate sus­ tainability with sustainable development, it may be too late to conceive of development in terms that entail material growth. In the words of James Lovelock, origi­ nator of the Gaia hypothesis and an acknowledged visionary in the field of ecology: ‘‘it is much too late for sustainable development; what we need is a sustainable retreat.’’ Summary

Ensuring global food security will only be possible if the principles identified in the ethical matrix are given due respect. In particular, there will be a need to assess the extent to which intensivist strategies to increase produc­ tion must be squared with the need to sustain ecological integrity. In view of the prima facie nature of the ethical principles, deciding what to do, through serious ethical deliberation, will be just as important as accomplishing it.

Agricultural Ethics

Animal Biotechnologies A feature of many farming enterprises in MEDCs is that marginal improvements in productivity have been deemed essential for economic survival in a highly com­ petitive, and increasingly globalized, market. Such trends became apparent in Western democracies after 1939–45 World War, leading to so-called factory farming as tradi­ tional animal husbandry was replaced by animal production systems. While it might be thought that hap­ pier animals, experiencing high levels of welfare and behavioral freedom, would be more likely to yield plenti­ ful meat, eggs, and milk, applied research demonstrated that a combination of new technologies and economies of scale could offset the perceived disadvantages of reducing animals’ space allocation and freedom of movement. For example, even if mortality rates increase in intensive production systems, economic profitability can often be achieved by increased average output per animal coupled with high rates of throughput. Moreover, capitalizing on financial expenditure has entailed exercising increasing control over the animals from conception to slaughter. Reproductive technologies

Optimizing dietary and environmental regimes has proved to be an effective strategy for increasing yields, but a more radical approach is to breed animals with greater productive potential. A common means of achiev­ ing this is artificial insemination (AI), which has been practised for over 50 years in animal production. However, its widespread use has had some undesirable consequences, for example, when resulting anatomical changes have made it impossible for animals to mate normally, which is the case for virtually the whole of the UK turkey flock. In UK dairying, where AI is used in the breeding of most cows, semen is collected by arranging for a sexually aroused bull to ejaculate into an artificial rub­ ber vagina. Insemination is then achieved by passing a catheter containing the semen through the cow’s cervix, a procedure that requires skills developed through training to avoid stress. There can be risks of reduced welfare if an overlarge fetus is produced (which may result in caesarean delivery of the calf), but the natural mating process is itself not without risks when there is a mismatch between the sizes of bull and cow. However, apart from such concerns (c7, c8), some people consider that the highly instrumental means of semen collection and insemination not only fail to respect the animals’ intrinsic value as sentient beings (c9), but also offend human dignity (c1, c2). Even so, it is estimated that globally AI is used on 110 million cattle per annum. In consequence, the narrowing gene pool repre­ sents a threat to biodiversity (c11), as illustrated in the UK by the fact that 8% of all heifers born in 2000 were sired by the sons or grandsons of a single bull.

93

Exploitation of the reproductive potential of cows is now achieved by the technique of multiple ovulation and embryo transfer (MOET), which entails hormonal induc­ tion of superovulation (e.g., producing 10 or more ova), followed by AI. Before the resulting embryos become implanted, they are flushed from the uterus via a catheter and transferred to a number of recipient (surrogate) cows, a process open to the ethical objections already noted. Ethical concerns are not confined to the procedures involved in AI and MOET because risks to welfare may result from the breeding objectives if these produce ani­ mals with such high productive potential that the metabolic stresses entailed exceed the animals’ homeo­ static capability (see Glossary) to cope with them (c7, c8, c9). For example, leg weaknesses are very common in intensively reared poultry, with 20% sometimes severely affected by the time they reach slaughter weight at 6 weeks of age: in the worst cases they are unable to stand. Cloning

The birth of Dolly the sheep, the first clone of an adult animal using somatic cell nuclear transfer, was announced in 1997. Since then reports have appeared of the cloning inter alia of adult cattle, goats, and pigs. However, cloning procedures are extremely inefficient. Dolly was the only live offspring produced after 277 attempts, and similar inefficiencies occur in cloning other species. Several fac­ tors contribute to the death of clones, in the embryonic and fetal periods as well as during neonatal life. Animals surviving to birth often require intensive monitoring and therapy to treat a range of complications, for example, affecting the heart and lungs. Despite these concerns, the sale of meat from cloned cattle has received official endorsement from several food regulatory bodies, including those in the United States and European Union. However, at the time of writing (2009), final approval for commercialization is pending. Whether approval will ultimately be deemed necessary is questionable, because it is likely that some meat that is already on sale in United States and Japan is derived from the offspring of cloned animals (e.g., as a result of MOET), and therefore technically not itself cloned, and in any case not governed by labeling requirements. The brief analyses necessary here run the risk of polarizing ethical issues. Therefore, it is important to appreciate that such a concise citation of results, espe­ cially those obtained early in research programs, may not fairly represent future prospects. For example, animal biotechnologies specifically directed to improvements in animal welfare (c7) by selective breeding for disease resistance might be assessed quite differently from those whose objectives are increased productivity. The poten­ tial of genomics and associated disciplines, that constitute molecular genetic technologies, could be particularly valuable in this context.

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Agricultural Ethics

Summary

Respect for animal welfare and rights, together with con­ cerns over preserving species diversity appear to be significant constraints on the exploitation of nonhuman animals for food and other purposes. Ethical assessment of the extent to which modification of the intrinsic nature of farm animals is justifiable in the pursuit of increased out­ put and dietary choice is likely to form the basis of serious ethical deliberation in a world where the rights of the disadvantaged are gaining increasing attention. Crop Biofortification Using Genetic Modification GM crops are grown widely in the United States, China, and some other countries; but they are virtually excluded from EU agriculture. This difference relates to the stricter European legal controls, reflecting the majority public opinion that there are few real benefits of GM crops for consumers, while there may be some significant risks. Developing GM technology is an expensive process, so that only large multinational companies are involved in it, and this domination of the food market by a few very powerful companies is considered to be another reason for skepticism over GM in Europe. However, if ethics is concerned with making the correct decisions all things considered, it is possible that the provision of sufficient benefits might outweigh the current resistance to GM in the European Union. Golden Rice

A challenge to the argument that GM offers few real benefits for consumers is the project to produce a form of rice with enhanced content of a nutrient (a form of biofortification) that will address a major dietary defi­ ciency in LEDCs. The genome of Golden Rice (GR, sonamed because of its yellow color) contains two genes inserted by GM viz., those coding for the enzymes phy­ toene synthase and phytoene desaturase, which result in the production in the endosperm of �-carotene, the main precursor of vitamin A. The alleged significance of this technology is that it might be a valuable tool in counter­ ing vitamin A deficiency (VAD) in LEDCs, where WHO (see Glossary) estimates that it affects 100–140 million children. Up to 500,000 of them become blind every year, of whom half die within a year of losing their sight. More than 40% of the children affected live in South and Southeast Asia. GR is thus a prospective form of func­ tional food (FF). There are currently three main strategies for reducing VAD: (1) supplementation, which involves giving highdose vitamin A capsules twice a year; (2) fortification, which consists of adding vitamin A (often together with iron and iodine) to foods (such as fats, oils, and cereal flours) before sale; and (3) dietary diversification, which relies on the fact that meat, dairy products, and leafy

green vegetables are rich sources of vitamin A (implying that encouraging livestock farming and horticulture is a sound preventive strategy). GR is thus a prospective fourth strategy for tackling VAD. Development of GR has been carried out at the Swiss Federal Institute of Technology in Zurich for over 10 years. Failing initially to obtain commercial support, the project won financial backing from the Rockefeller Foundation, the European Union and the Swiss govern­ ment. Although originally intended to serve the public good, especially the poor in LEDCs, it was discovered that about 70 patents had been used in the initial develop­ ment process, which would have incurred payment of excessive royalties. To overcome this problem, the research team transferred exclusive rights for GR to the biotechnology company Syngenta, thus making the tech­ nology a private good. Under the terms of the deal, the project is legally divided into two strands. In the commer­ cial strand, Syngenta hopes to sell GR (principally in MEDCs) as a premium FF, based on �-carotene’s alleged antioxidant and anticancer properties. In the other strand, a humanitarian board will guide development of GR as a pro-poor technology, being distributed free of charge to LEDC farmers earning less than US$10,000 per annum from the rice. Ethical analysis

Analysis of the potential role of GR in countering VAD is usefully structured by referencing the ethical matrix (Table 1), highlighting some important features pertain­ ing to consumer well-being, autonomy and fairness. An earlier version of GR was criticized for its low �-carotene content, but a subsequent development, con­ taining much more �-carotene, would seem to invalidate some of the earlier arguments. At the concentrations now reported, it is estimated that consumption of 144 g of GR would satisfy the RDA (see Glossary). Even so, a number of other factors may reduce its effectiveness as a means of countering VAD (c4). For example, (1) the extent to which �-carotene is extracted from consumed rice and made available for utilization by the body; (2) the capability of an individual to convert �-carotene into vitamin A; (3) negative effects of such factors on the palatability or consumer acceptability (e.g., because of its unfamiliar color) of GR; (4) susceptibility to factors affecting storage times; and (5) the extent to which bioactivity withstands cooking procedures. Moreover, yield and/or �-carotene content may be susceptible to numerous biotic and/or abiotic variables, which it might be difficult for resource-poor farmers to control. In purely utilitarian terms, it would be important to assess the relative benefits and costs of the three alternative strategies. However, there is uncertainty over several of these issues, and the results of some studies on GR have not been subjected to independent assessment.

Agricultural Ethics

Respect for consumer autonomy (c5) centers on the informed choices that consumers are able to make concerning GR and alternatives. While accurate and informative labeling is crucial, it may not be sufficient or always easy to achieve, even with the best intentions. Labeling that is both concise and explicit may become a compromise between accuracy and brevity, especially when poorly understood quantitative factors are criti­ cal. A significant risk is that consumers might be persuaded to pay more for a perceived health benefit that would be better, and/or more economically, deliv­ ered by an alternative food or habit. The case for GR rests on the claim that it provides an affordable, effec­ tive means of countering VAD, otherwise unlikely to be achieved. Respect for consumer fairness (c6) is usually trans­ lated as affordability, so that it is unfair if a health-giving food is unavailable to those too poor to buy it. The provision of this technology free to poorer farmers (c3) would clearly respect this principle and benefit them as consumers (c6). Summary

Advocates of GR point to its great potential to prevent suffering and death, and to the altruism of biotechnology companies in offering significant monetary savings to resource-poor farmers in LEDCs. Others consider it a cynical attempt to claim the high moral ground by using GR as a loss-leader that will win over many current GM skeptics in MEDCs. Key issues center on the efficacy of GR compared to other strategies (which could be utilized far more effectively than currently) for countering VAD and on the medicalization of food, when a balanced diet might be considered a more effective and sustainable solution.

What Might Ethical Analysis Contribute to Agricultural Practice? It was noted above that most policy decisions have tended to appeal (often implicitly) to utilitarian principles. This article has aimed to demonstrate that authentic ethical deliberation on issues specifically relating to policy for­ mulation acknowledges the roles of deontological and virtue-based theories in modulating the dominant cost/ benefit agenda. Ethical analysis can also aid in the follow­ ing respects: flawed reasoning; • identifying the nature of power relationships; and • revealing transparency in decision-making • ensuring dissemination.

and

In these ways ethics, rather than financial profits, may be appreciated as the bottom line of policy decision making

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relating to agricultural practices. This claim follows from the fact that there are some things most people would not do at any price and other things they habitually do at no price at all. Deciding what actions fall into these two categories might be said to constitute the essence of ethics.

See also: Climate Change; Consequentialism and Deontology; Functional Food and Personalized Nutrition; Principlism; Theories of Ethics, Overview; Utilitarianism; Virtue Ethics.

Further Reading Lovelock J (2007) The Revenge of Gaia. London: Penguin. Meadows DH, Meadows DL, and Randers J (1992) Beyond the Limits: Global Collapse or a Sustainable Future. London: Earthscan. Mepham TB, Wiseman J, and Tucker G (eds.) (1995) Issues in Agricultural Bioethics. Nottingham: Nottingham University Press. Mepham B (2008) Bioethics: An Introduction for the Biosciences, 2nd edn. Oxford: Oxford University Press. Naqvi AN (2007) Application of molecular genetic technologies to livestock production: Potentials for developing countries. Advances in Biological Research 1: 72–84. Pinstrup-Andersen P and Sandøe P (eds.) (2007) Ethics, Hunger and Globalization. Dordrecht: Springer. Pretty J (2002) Agri-Culture: Reconnecting People, Land and Nature. London: Earthscan. Thompson PB (1998) Agricultural Ethics: Research, Teaching and Public Policy. Ames: Iowa State University Press. Thompson PB (ed.) (2008) The Ethics of Intensification: Agricultural Development and Cultural Change. Dordrecht: Springer. Tilman D, Cassman KG, Matson PA, Naylor R, and Polasky S (2002) Agricultural sustainability and intensive production practices. Nature 418: 671–677.

Relevant Websites http://www.cnr.berkeley.edu/�agroeco3/ the_potential_of_agroecology.html – Altieri MA, Rosset P and Thrupp LA (accessed 2009) Agroecology in Action: the Potential of Agroecology to Combat Hunger in the Developing World. http://www.ethicalmatrix.net – Compassion in World Farming (2003) Ethics and animal farming (an interactive web-based program devised by Ben Mepham). http://www.eursafe.org/ – European Society for Agricultural and Food Ethics. http://www.foodethicscouncil.org/ – Food Ethics Council (2009). http://www.goldenrice.org/ – Golden Rice Project (2009) Golden Rice is part of the Solution. http://verticalfarm.com/Images/design/HarvestGreen/ HarvestGreenProject_01.pdf – Harvest Green Project 01 (2009) Vertical farming. http://www.agassessment.org – International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD) (2008) Agriculture – the Need for Change. http://www.soilassociation.org/ – Soil Association UK (2009).

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http://www.sd-commission.org.uk/publications/downloads/ SDCFoodSecurityPositionPaper.pdf – Sustainable Development Commission (2009) Food Security and Sustainability: The perfect fit. http://www.sarep.ucdavis.edu/Concept.htm – University of California Sustainable Agriculture Research and Education Program (1997) What is sustainable agriculture?

Biographical Sketch Ben Mepham is Special Professor in Applied Bioethics at Nottingham University and Visiting Professor in Bioethics at Lincoln University. He graduated from University College London in physiology and then pursued doctoral research in biochemistry at the Institute of Animal Physiology, Cambridge. He subsequently researched and lectured at Nottingham

University, firstly as a physiologist and then as a bioethicist, being appointed Director of the Centre for Applied Bioethics in 1993. As a physiologist, he researched the biochemistry, physiol­ ogy, and endocrinology of lactation and wrote The Secretion of Milk (1976) and Physiology of Lactation (1987). As a bioethicist, he introduced undergraduate and postgrad­ uate courses at Nottingham, authored many academic publications, and wrote the highly acclaimed textbook Bioethics: An Introduction for the Biosciences (Oxford University Press), now in its second edition (2008). In Food Ethics (1996), he introduced a procedural framework (the ethical matrix), which has been used by several governmental, intergovernmental, and advisory com­ mittees. He has served on the UK Government’s Biotechnology Commission, several EU advisory committees, and the board of the European Society for Agricultural and Food Ethics. Following retirement from the full-time staff at Nottingham, he was appointed Executive Director of the UK Food Ethics Council (1998–2003).

AIDS, Ethical Issues in Health Care T Murphy, University of Illinois College of Medicine, Chicago, IL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary AIDS Acquired immune deficiency syndrome, a

medical condition leaving a person liable to infection

and death.

The Emergence of AIDS AIDS emerged as a worldwide epidemic in the 1980s, although earlier instances of the disease have been identified. In the mid-1980s, researchers identified the human immunodeficiency virus (HIV) as the cause of AIDS, and infection with HIV leads to a variety of disorders, associated with a crippled immune system: Pneumocystis carinii pneumonia, Kaposi’s sarcoma, and wasting syndromes among them. The occurrence of these disorders in the pre­ sence of HIV infection constitutes AIDS. HIV infection is usually contracted by exposure to body fluids with HIV in them: infected blood, breast milk, and semen. Some people with HIV remain asympto­ matic and unaware of their infection. Rarely, some people are not affected by HIV infection, but most infected people face serious risks of death unless they receive treatment. Once infected, people remain infected for the rest of their lives. The World Health Organization has estimated that the worldwide num­ ber of people living with HIV infection exceeds 30 million people, and some countries are more affected than others. At the onset of the epidemic, effective treatments were not available for AIDS, and its exact mechanisms of infection were unclear. These circumstances pro­ voked considerable debate about social, legal, and medical responses to the disease. To be sure, the world had experienced epidemics of infectious and communicable disease before, but the sudden onset of this disease put questions about healthcare ethics into sharp focus. The resources that countries have available to treat and prevent AIDS differ starkly, which was true at the onset of the epidemic and remains so now. When looked at from a global per­ spective, many of the ethics questions associated with AIDS are also questions of global healthcare ethics in general.

HIV Human immunodeficiency virus, infection with

which leads to AIDS.

Ethical Issues in Clinical Care Testing for HIV In general, medical ethics counsels that patients should make decisions for themselves about whether and under what circumstances to have diagnostic tests and treat­ ments, and this counsel is based on the moral principle of respect for autonomy. In general, individual people are best situated to understand what a particular test or treat­ ment will mean in their lives. Therefore, clinicians should advise patients about the significance of tests (what they will show) and treatments (how disorders can be mana­ ged) before those tests and treatments. A diagnosis of having HIV has important medical and social implications: confirmation of an HIV infection sig­ nificantly alters a person’s life expectations. At the very least, HIV infection signals the risk of life-threatening conditions for oneself and – if pregnant or nursing – for one’s children. An HIV diagnosis also signals that one may be infectious to sexual partners, to people sharing drug injection needles, or to strangers through blood donation. In order to identify the total number of people with HIV and to contain further infection, some commentators have urged widespread (and sometimes involuntary) HIV test­ ing. In general, though, there is nothing about an HIV infection that sets it apart from other conditions that can be managed through, voluntary testing. Because of the impact of an HIV diagnosis, people should ordinarily make their own decisions about if and when to be tested. Some jurisdictions have, in fact, passed laws that require consent before testing. Even so, some circumstances justify exceptions to the general rule of voluntary testing. Some jurisdictions per­ mit testing some people for HIV without their consent if that information will help guide healthcare decisions. For example, some jurisdictions permit the testing of patients if healthcare workers are exposed to the blood or bodily fluids of those patients, and their HIV status is unknown. Having information about whether the exposure to body

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AIDS, Ethical Issues in Health Care

fluids also involves exposure to HIV infection can help guide decisions about whether the healthcare workers should initiate treatment aimed at preventing the infec­ tion in themselves. Some jurisdictions also permit the testing of newborns, which will indirectly disclose whether or not their mothers have an HIV infection, for the same reason: to initiate medical treatment for the children. The U.S. military also requires testing of new entrants into service, as well as testing of those already in the military. The military excludes people with a variety of medical conditions (chronic arthritis, for example) because those conditions limit their ability to undergo training and contribute to operations. People with HIV can develop serious illnesses, and even if they show no symptoms, their medical care can be disruptive to unit operations, and combat injuries could expose others to infectious body fluids. If service members develop an HIV infection after entry into the military, they may be dis­ charged or – if they do not have active diseases – may have their assignments altered. All things considered, leaving the decision about HIV testing to service mem­ bers, would work against the military’s ability to care for its members and undercut its ability to maintain the fight­ ing force. In general, nonvoluntary testing is justified to the extent it works to the benefit of the people tested or serves an important social function that cannot be achieved any other way. Otherwise, healthcare workers should ordina­ rily work to secure the consent of people being tested for HIV. The process of securing consent can serve an oppor­ tunity for education about the significance of the disease and its consequences. The voluntary approach to testing also makes it possible to take advantage of anonymous testing options where those are available: People can be tested without creating a record of their identity. As a matter of ethics, it is also important to minimize the reasons people worry about a record of their HIV infec­ tion: worry that this information will be used against them in work, housing, and health care. Duty to Treat People with HIV and AIDS One of the ethical questions that emerged early in the AIDS epidemic was whether health professionals could decline to treat people with HIV infection. Some healthcare personnel defended their right to stay away from patients with HIV in order to avoid the risk of infection. In a way, physicians wanting to do this were not asserting anything more than their general right to choose patients as they wish. For example, the American Medical Association identifies one of its principles of medical ethics this way: ‘‘A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.’’

(American Medical Association, 2006: xv) According to this principle, healthcare relationships should be volun­ tary for both patient and physician alike. According to this view, physicians should be free to choose patients with HIV, and it would be a mistake to force physicians to care for them. Acknowledgment of the right of healthcare workers to withdraw from the care of people with HIV runs into practical and moral difficulties. The practical difficulty is that it is not possible to identify all patients with HIV prior to initiating healthcare relationships. For example, an ophthalmologist may have no prior information about HIV in her patients, and without that information she will not be able to erect an effective barrier against that kind of patient. Second, some patients may contract an HIV infection after entering a clinical relationship. Third, there are probably more people with HIV coming for­ ward for health care than can be effectively screened against. In other words, people with HIV have all the healthcare needs that people ordinarily have, in addition to the healthcare needs they have related to their infection. They will suffer broken limbs, develop gastro­ enteritis, have diabetes, have psychiatric disorders, and need prenatal care just like everyone else. It may be difficult in the extreme, therefore, for any medical practi­ tioner to steer clear of people with HIV infection, especially in areas where there are large numbers of people with HIV. From an ethical point of view, the right to withdraw from the care of patients with HIV or AIDS is problematic because – if asserted widely – it will leave those patients without health care. What becomes of people with HIV if every physician in an area asserts the right to decline treatment in the name of protecting themselves from risk of infection? Even if only some physicians in an area withdraw from treating people with HIV, the burden of treating HIV patients then falls on the practitioners will­ ing to accept them. This shifting of care raises the question of whether it is fair to shift the overall risks of occupational HIV infection – however great or small – to just a few practitioners, while others accept no risk at all. As a response to these kinds of concerns, the American Medical Association declares that ‘‘A physician may not ethically refuse to treat a patient whose condition is within the physician’s current realm of competence solely because the patient is seropositive for HIV.’’ (American Medical Association, 2006: 9.131). In other words, despite the principle that physicians should be free to choose their patients, the American Medical Association does not want to see people with HIV go untreated. Most medical disciplines have moved to make healthcare workers more willing and able to care for people with HIV. AIDS has left no medical discipline untouched, so since the 1980s, physicians and other healthcare workers have been trained to identify and treat the HIV-related

AIDS, Ethical Issues in Health Care

disorders they are likely to see in their practices. As a result, more and more healthcare workers are comfortable with taking care of people with HIV. It remains true, however, that clinicians should not be treating patients whom they are not prepared to treat, and professional organizations encourage clinicians in this situation to refer HIV patients to others with the appropriate clinical skills. It should be mentioned that some jurisdictions have made discrimina­ tion against people with AIDS illegal, further increasing the incentive for physicians to ensure they have the appropriate skills to care for people with HIV. The moral – and sometimes legal – requirement to care for people with HIV is not unreasonable since the risks of HIV infection are knowable risks, primarily expo­ sure to infected bodily fluids during diagnostic testing and treatment. Since the risks are identifiable in advance, clinicians can take steps to prevent infection: Barrier protections (gloving, masks) go a long way to reducing those risks. Since not all people with HIV are identifiable in clinical settings, clinicians should ordinarily act as if all patients are infected and protect themselves against all exposures that might lead to infection. This general pre­ sumption about HIV infection in patients will help protect healthcare workers against HIV infection and reduce the incentive to try and exclude patients with HIV from care, an effort that has no guarantee of success anyway. HIV-Infected Physicians and Healthcare Workers In the late 1980s, a U.S. dentist was responsible for HIV infection in six of his patients, although the exact means of infection was never established. As a way to prevent infection of patients, should HIV-infected healthcare workers disclose their infection to prospective patients or withdraw entirely from clinical care? In general, patients do not have a right to information about a physician that does not materially affect the delivery of their care. If a physician is married or divorced, it is a matter of indifference to her ability to diagnose and treat leukemia, for example. Moreover, a great deal of medical interactions does not involve the exposures that could lead to HIV infection in a patient. For example, psychiatric care or radiological assessments generally involve no interaction that would expose a patient to HIV infection. An internist who treats a patient for asthma ordinarily has no interaction that could pass her HIV infection on to the patient. Under circumstances like these, it does not seem that physicians or other healthcare workers have a duty to disclose their HIV infection to patients: The information is not relevant to the way in which the physician carries out clinical duties. Should those healthcare workers become debilitated by AIDS, they should disclose the possible need to transfer

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patients to the care of others, but they need not either disclose exactly why they are no longer able to care for their patients as before. On the other hand, if clinicians wish to disclose their HIV infection to patients, in the name of building a trusting relationship, there is no moral objection to doing that. In contrast to innocuous medical interactions, some medical treatments may expose patients to a degree of risk of HIV infection from a healthcare worker. For example, a physician might accidentally cut herself and bleed into a patient’s abdomen during surgery to remove a tumor. After a considerable debate in the early 1990s, the U.S. Centers for Disease Control and Prevention offered guidelines that recommended that physicians with HIV infection notify patients about their infection in advance if treatment involved exposure-prone procedures. Exposure-prone procedures are those that have a certain risk of exposing a patient to the blood of a practitioner, for example, through a scalpel injury to the physician during abdominal surgery of the patient. This approach gives patients the option of deciding for themselves whether they wish to go forward with the surgery with this parti­ cular surgeon or not. From an ethical point of view, the increasing magnitude of risk associated with the medical treatment justifies making this disclosure, although there is not always a clear and bright line about what interven­ tions should trigger disclosure and what interventions do not require disclosure.

Ethical Issues in Clinical Trials Clinical trials are intended to identify drugs or devices that are useful in the treatment or cure of diseases, and they have different steps or phases. First, these studies work to determine whether a particular drug can be tolerated in the human body safely and at what levels (these are called phase 1 studies). Second, research inter­ ventions look at whether the drug has an effect, such as shrinking a tumor (phase 2 studies). Third, research inter­ ventions try to evaluate whether the drug’s effect helps in the medical management of the disease. For example, does the shrinkage of the tumor lead to longer lives or not (phase 3 studies)? Fourth, what happens when this intervention is used widely in a population: What unex­ pected results occur or new uses emerge (phase 4 studies)? Access to Clinical Trial Data In the early era of the epidemic, if any intervention whatsoever showed promise during clinical trials, some activists wanted access to that information as soon as possible. However, early information may be incomplete, and not all commentators are convinced that early release of information is wise. Some drug studies, however, are

100 AIDS, Ethical Issues in Health Care

overseen by review boards to assess whether a drug is, in fact, having a useful effect; if a drug is showing clear promise, these review boards may recommend that the trial be stopped before the planned finish date so that the drug under study can be made available. By the same token, if the data show significant harm from the drug under study, the monitoring board can recommend an earlier halt to the trial than planned. As the information coming out of clinical trials can be ambiguous, there can be debate about whether or not a drug merits early release of data about its effects.

How to Design Clinical Trials It is not only the release of information that becomes ethically problematic in clinical trials, but also the way in which the trials themselves are conducted. In general, research ethics counsels that a new drug be tested against existing treatments. Researchers do not want to deprive people of the benefit of existing treatments so long as the outcome of the experimental treatment is not known. However, useful information can also come from trials in which a new drug is tested for its effects and those effects are measured against the medical state of people getting no treatment at all. In the 1990s, there was significant debate about certain trials designed to study the transmission of HIV from pregnant women to their babies. At that time, experts recommended a particular drug treatment for pregnant women as they gave birth, which was known to reduce the number of newborn babies infected with their mother’s HIV. However, that treatment was expensive and not available in some of the countries having the highest mother-to-child transmission rate of HIV. Some research­ ers therefore sought permission to carry out the studies without comparing the new interventions to this drug treatment. Critics argued that the women and children in poor countries were being deprived of the treatments any pregnant woman could expect to get in the United States and getting only treatments of unknown value. In response, defenders of the research pointed out that the standard treatment used in wealthier countries was simply not avail­ able in countries under study. They also argued that the very point of these studies was to make less costly treat­ ments available, treatments that would benefit poor countries desperately in need of them. In fact, these studies did show that certain, less costly treatments did help reduce the rate of mother-to-child infection, but critics still believed more harm had been done than was necessary: Some women who might have avoided HIV infections in their babies through standard treatment did not get that treatment as they would have in richer countries. This debate had a direct impact on the World Medical Association’s Declaration of Helsinki, which describes

international standards for clinical research. The Declaration currently says that The benefits, risks, burdens and effectiveness of a new intervention must be tested against those of the best current proven intervention, except in the following circumstances: the use of placebo, or no treatment, is acceptable in studies where no current proven interven­ tion exists; or where for compelling and scientifically sound methodological reasons the use of placebo is neces­ sary to determine the efficacy or safety of an intervention and the patients who receive placebo or no treatment will not be subject to any risk of serious or irreversible harm. Extreme care must be taken to avoid abuse of this option. (World Medical Association, 2008).

In other words, the Declaration sets the default against comparing experimental interventions against people get­ ting no intervention or only sham interventions. This ethical advisory is not, however, binding on individual countries who may wish to proceed otherwise. Studies of HIV vaccines have also hit ethical tripwires worth mentioning. The worth of a vaccine becomes clear only if people with the vaccine are exposed to the infec­ tions they are expected to protect against. In other words, if people get an experimental vaccine against HIV but they are never exposed to the risk of HIV infection, the value of the vaccine cannot be determined. However, because the consequences of HIV infection are so severe, researchers cannot ask people to expose themselves knowingly to HIV infection in order to test the vaccines. On the contrary, because the consequences of HIV infection are so severe, researchers are obliged to caution vaccine subjects from avoiding any known risk of HIV infection whatsoever. But if subjects followed that advice to the letter, the value of vaccines must remain unknowable. The importance of having a vaccine that would protect against HIV infection has been recognized from the earliest days of the epidemic. The burden of human pain and suffer­ ing has been reduced beyond measure by vaccines that protect against smallpox, polio, measles, mumps, diphtheria, influenza, and other disorders. Testing vaccines against HIV remains, therefore, a priority insofar as other mechanisms – for example, public health education – of preventing HIV infection have limits in preventing new cases. In a sense, progress in HIV vaccines will depend on lapses: Despite being counseled to avoid risks of HIV infection, some people will not avoid those risks altogether. They will have sex with people with an HIV infection, they may receive a transfusion with HIV-infected blood, and they may share drug injection needles with someone who has an HIV infection. These lapses open the door to the evaluation of HIV vaccines. Even so, researchers continue to have a duty to counsel participants in vaccine studies to avoid any exposures to HIV infection.

AIDS, Ethical Issues in Health Care

Access to Drugs Early in the epidemic and even now, access to substances used as drugs is regulated by law and policy. However, some activists argued for virtually unregulated access to drugs showing promise in controlling AIDS. Especially in the earliest years of the epidemic, people with AIDS sought any drug that might help them. Some people in clinical trials swapped their medications in order to increase their chance of getting an effective treatment. As a general approach, some commentators have argued that there should be fairly unrestricted access to drugs that are not evaluated. Commentators in this camp gen­ erally argue that the paternalism involved in controlling access to drugs is not justified: They think the prospect of imminent death trivializes the argument that the gov­ ernment should work to protect people from the potential harm of unproved therapies. They also think that people with AIDS are – in general – capable of assessing for themselves the benefits and risks of taking unapproved drugs. David Resnick has argued against this laissez-faire approach to drugs for several reasons. He notes that even people facing death can harm themselves through poor choices about drugs. Second, he does not believe that – in practice – access to drugs could be limited only to people with terminal illnesses; the use of unapproved drugs would bleed out into the general population. Third, he believes that many people are not situated to make informed deci­ sions about unapproved drugs because they lack the capacity to do so: They do not have the background to evaluate drugs properly or they may be incapacitated by their disorders. These considerations amount to formidable reasons why drugs should be controlled in the name of consumer protection; the overall effect of unregulated access to drugs would be worse for society in general than the benefit to some people with AIDS in being able to take drugs of unproven benefit. Fortunately, the ques­ tion of access to experimental AIDS drugs is muted now because useful medications have come on the market. The more significant question at this time is the cost of those medications.

Disease and Global Justice In contrast to the earliest years of the AIDS epidemic, antiviral treatments now offer good – but not perfect – control of the disease. Despite the value of these treat­ ments, not all people have access to them, especially in the poorest parts of the world. In its first meaning, access refers to the ability of people to secure the health care they need: Can they pass through the doors of healthcare institutions without obstructions based on their sex, religion, national origin,

101

or other morally irrelevant characteristics? Medical ethics presumes the equality of all persons, and healthcare pro­ viders and institutions should not turn people away for reasons that diminish that equality. To secure this end, some jurisdictions have passed laws that forbid discrimi­ nation in health care based on those traits, and some laws extend this protection to people with AIDS. In the United States, the Americans with Disabilities Act (1990) applies to people with HIV and AIDS insofar as they exhibit impairment in a major life function. This law extends beyond healthcare institutions and requires, for example, employers to make certain accommodations for employ­ ees with disabilities. In its second meaning, access to health care means far more than the ability to find a doctor or healthcare insti­ tution, it means the ability to secure health care, to get the health care one actually needs. This might better be called provision with health care. Even if healthcare insti­ tutions do not discriminate against people, those institutions may not be able to care for everyone in their area because of overwhelming demand or because of cost. Access to health care in this sense has been problematic for people with AIDS around the world. National healthcare systems vary widely: Some offer extensive medical services as a matter of civic entitlement. Other societies put the cost of health care on people themselves: People either participate in insurance (as they are able to) or pay for medical services out of their own pocket (as they are able to). No matter who shoulders the costs, treating AIDS is expensive, especially since HIV infection usually requires life-long care. In some countries, poverty makes questions about the provision of AIDS care almost moot: Some countries scarcely have any money available for the treatment of any condition, let alone AIDS. Private philanthropies and international organizations sometimes step into the gap between healthcare need and healthcare reality to pur­ chase drugs and provide healthcare services. Even so, these efforts may still fall short of what is necessary to prevent disease and treat people in these countries. The gaps in providing health care to people with AIDS rich and poor fuel a larger debate: Whether people have a right to healthcare and whether society has the duty to provide that health care. In short, who is primarily responsible for the healthcare people want and need? In one corner of the debate about the right to healthcare are libertarians, who believe that governments have little or no duty to provide health care, that people are responsible for their own health. As these commentators see things, people should take all necessary steps to avoid disease and disorder through healthy living and risk reduction; if they do need health care, it is their respon­ sibility to pay for it, in the same way they should be responsible for the other social goods they want (educa­ tion, housing, possessions). These commentators worry

102 AIDS, Ethical Issues in Health Care

that the free provision of health care actually undermines health because people will take less responsibility for their own well being if health care is more or less free. In a similar vein, some economists have argued that govern­ ment should withdraw from certain public health initiatives: They want to turn responsibility for health over to people themselves. They believe that in confront­ ing the consequences of their own behavior, rational people will – over time – protect themselves against HIV risk, and the AIDS epidemic will abate. In other words, these com­ mentators believe that government efforts to protect the public health (including the provision of health care) actu­ ally work to increase ill health, rather than reduce it. In the opposite corner of the debate are social welfarists who believe that people have a right to health care and that societies have a duty to provide it. These commentators believe that providing health care is a primary function of society, akin to providing national defense. These com­ mentators also believe that health is unlike other social goods and that social institutions should take a lead role in providing the care that supports health. Commentators in this camp worry that pay-as-you-go health care leaves poor people without the health care they need. In between these opposite corners of opinion are healthcare theorists who split the difference: These com­ mentators see the need for the provision of some health care funded by the public, but not all. Some would offer preventive care and emergency care, while others want to see more ambitious programs of healthcare prevention and treatment. The theory of justice advanced by John Rawls points in the direction of a split division of respon­ sibility for health care. Rawls argues that justice as fairness means designing a society in which social and economic inequalities are tolerated so long as there is still some benefit that goes directly to the least advantaged. For example, expensive procedures could be taxed for the purpose of providing health care for the poor. Rational people designing a healthcare system to be fair for all should want to protect everyone in the society, not just some. That means simultaneously protecting the right to secure expensive health care paid for by oneself and asserting the duty to provide some health care for those people who have the fewest advantages to begin with. This position opens the door to involving governments and social institutions in health care, but it does not settle definitively the question of how much health care belongs to people as a civic right and how much falls on their own shoulders as a matter of personal responsibility. Regardless of how much healthcare people are entitled to as a matter of right, there are both prudential and moral grounds for placing AIDS high on the list of international healthcare problems. On the prudential side, the human and economic costs of AIDS are devastating. With more than 30 million people living with AIDS, the toll of pain, suffering, and disruption of families is calamitous by any measure. As

a political matter, the world’s nations have pledged them­ selves to work toward the promotion of the health of their people. For example, the United Nations’ Universal Declaration of Human Rights (1948, art.32) declares that Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Of course, this statement does not say exactly what nations must do to support this right of health and healthcare, but they cannot ignore a problem as significant as AIDS. Most discussions about the right to health focus on the ethics of health care within a particular country. However, it is not clear from an ethical point of view why that focus should prevail. Moral philosophy has committed itself to a strong presumption of the equality of all human beings. If we apply this presumption to health care, it is unclear why healthcare theory should not be concerned with all people, regardless of their citizenship. As Peter Singer has shown, it is morally problematic to assert responsibilities of care for people near at hand but to wash one’s hands of responsi­ bilities of care for people on the other side of the globe, if one’s actions can do something to protect them. In a similar vein, Dieter Birnbacher has called the expectation of assis­ tance in times of critical need a core meaning of respect for the dignity of others. If there is an obligation to come to the aid of strangers in times of critical need, it is not clear why that obligation disappears simply because national borders stand in the way.

The Future of an Epidemic In human history, only one disease has ever been eradi­ cated. Because of an international program orchestrated by the World Health Organization, no cases of naturally occurring smallpox have been identified since the 1970s. In contrast, the AIDS epidemic continues to take its toll. In some countries, the epidemic of AIDS has slowed, while in other parts of the world the peak number of cases may still be ahead. The underlying premise of biomedical treatment and research is to treat disease where it cannot be prevented. In other words, the eradi­ cation of HIV-related disease is the operational goal of prevention research and medical treatment. The AIDS epidemic continues to challenge the ability of national governments and research institutions to meet that ambi­ tious goal. There is no doubt that vast sums of money and deep pools of talent have so far helped limit the harms of AIDS. However, even praiseworthy efforts can have

AIDS, Ethical Issues in Health Care

unwanted effects. Some commentators have argued that AIDS efforts around the globe skew national resources by putting money and talent into the fight against just one risk to health, while ignoring others of equal importance. For example, some governments and institutions have deemphasized simple public health measures that reduce morbidity and mortality from causes other than AIDS. Ambitious anti-AIDS efforts will not reduce childhood deaths from diarrhea, for example, and in some places diarrhea kills more children than AIDS. Even within AIDS research, there is disagreement about whether treatments or vaccine research should have priority. Research into cheaper and more effective treatments will, of course, benefit those people who have AIDS now. At the moment, no anti-HIV vaccine looms on the horizon, and finding one may take a generation more or even longer. This timetable means vaccine researchers are working on a medical intervention that will primarily benefit people in the future, maybe even people who are not even alive now. Even so, a vaccine will almost cer­ tainly protect more years of life for more people than treatment can. Effective immunization would either ward off the worst forms of the disease or prevent disease altogether, and it would be less expensive than treatment as well. If the ethics of research funding were determined only by the expected benefits – and an effective anti-HIV vaccine could protect virtually everyone in the future from AIDS – research into vaccines would always take priority over the development of treatments for those with the diseases. Yet as some AIDS activists see things, the effort to find a vaccine is stalled and it siphons off money that would be better spent on health care for people living with AIDS. As they see it, the primary moral obligation in health care is to relieve people from the actual diseases they have, as against working to pro­ tect people who do not exist yet. Because money and scientific talent are limited, it is unfortunate that governments and institutions must sometimes pit the healthcare needs of living people against people who will live in the future, but one group’s interests should not be extinguished entirely in favor of the other’s. As a matter of beneficence, both the living and the not yet living deserve respect from governments and institutions working to protect health. For example, we should not strip the planet bare of resources to enrich the generations now alive, leaving people in the future to fend for themselves under scarcities of food, fuel, clean water, and clean air. Because moral philosophy presumes the equality of all people, it is not a matter of indifference whether people in the future are free of AIDS or not. There are several ways to imagine a future free of AIDS. In one possible future, imagine that a fully effective cure becomes available for HIV-related disorders. In a second possible future, imagine that people can be pro­ tected against HIV infection by a vaccine. What the

103

future turns out to be will depend, of course, on what commitments governments and researchers make to the study of HIV and how successful their efforts are. Even so, it is generally preferable to protect people from diseases by vaccines rather than to treat them (and even cure them) when those diseases occur. If a completely effective cure were found for AIDS today, ethical questions would still remain about how to extend it to people around the globe. Similar sorts of problems would also dog the dis­ tribution of an effective vaccine, but a vaccine would spare people the pain and suffering of the disease in the first place, and that is important in any calculation of how to spend money when fighting disease. See also: AIDS in the Developing World; Developing World Bioethics; Ethical Experiments; Randomized Trials.

Further Reading Almond B (1997) AIDS: A Moral Issue. The Ethical, Legal, and Social Aspects. Basingstoke: Palgrave Macmillan. American Medical Association Council on Ethical and Judicial Affairs (2006) Code of Medical Ethics: Current Opinions with Annotations, Chicago: American Medical Association. Barnett T and Whiteside A (2006) AIDS in the Twenty-First Century: Disease and Globalization. Basingstoke: Palgrave Macmillan. Bayer R (1991) Private Acts, Social Consequences: AIDS and the Politics of Public Health. New York: Rutgers University Press. Bayer R and Oppenheimer G (2000) AIDS Doctors: Voices from the Epidemic. An Oral History. Oxford University Press. Birnbacher D (2005) Human cloning and human dignity. Reproductive Biomedicine Online 10(supplement 1): 50–55. Campbell C (2003) Letting Them Die: Why HIV/AIDS Prevention Programmes Often Fail. Oxford: James Currey Press. Centers for Disease Control and Prevention (1991) Recommendations for preventing transmission of human immunodeficiency virus and hepatitis B virus to patients during exposure-prone invasive procedures. Morbidity and Mortality Weekly Report 40 (RR08): 1–9. Daniels N (1991) Duty to treat or right to refuse. Hastings Center Report 21: 36–46. De Cock KM, Fowler MG, Mercier E, et al. (2000) Prevention of motherto-child HIV transmission in resource-poor countries: Translating research into policy and practice. Journal of the American Medical Association 283: 1175–1182. DeMets DL, Fleming TR, Whitley RJ, et al. (1995) The data and safety monitoring board and acquired immune deficiency syndrome (AIDS) clinical trials. Controlled Clinical Trials 16: 408–421. Gostin LO (2006) The AIDS Pandemic: Complacency, Injustice, and Unfulfilled Expectations. Chapel Hill: University of North Carolina Press. Grady C (1995) The Search for an AIDS Vaccine: Ethical Issues in the Development and Testing of a Preventive HIV Vaccine. Bloomington: Indiana University Press. Halperin D (2008) Putting a plague in perspective. New York Times, January 1, 2008. Kass L (2008) Toward a More Natural Science: Biology and Human Affairs. New York: Free Press. Kirp DL and Bayer R (eds.) (1992) AIDS in the Industrialized Democracies. New Brunswick: Rutgers University Press. Jones PS (2008) AIDS Treatment and Human Rights in Context. New York: Palgrave Macmillan. Loue S and Pike EC (2007) Case Studies in Ethics and HIV Research. New York: Springer.

104 AIDS, Ethical Issues in Health Care Malinowski-Sempruch K and Gallagher S (eds.) (2004) War on Drugs, HIV/AIDS and Human Rights: Sourcebook on Contemporary Controversies. International Debate Education Association. Murphy TF (1994) Ethics in an Epidemic. Berkeley: University of California Press. Peckham C and Gibb D (1995) Mother-to-child transmission of the human immunodeficiency virus. New England Journal of Medicine 333: 298–303. Philipson T and Posner RA (1993) Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective. Cambridge: Harvard University Press. Resnick DB (1999) Review of ‘Access to Experimental Drugs.’ American Philosophical Association Newsletter on Philosophy and Medicine. www.apaonline.org (accessed June 2010). Sade RM (1971) Medical care as a right: A refutation. New England Journal of Medicine 295: 1288–1292. Sade RM (2008) Foundational ethics of the healthcare system: The moral and practical superiority of free market reforms. Journal of Medicine and Philosophy 33: 461–497. Schu¨klenk U (1998) Access to Experimental Drugs in Terminal Illnesses: Ethical Issues. Binghamton, NY: Pharmaceutical Products Press. Sergios P (1993) One Boy at War: My Life in the AIDS Underground. New York: Knopf. Shaffer NR, Chuachoowong PA, Mock C, et al. (1999) Short-course zidovudine for perinatal HIV-1 transmission in Bangkok, Thailand: A randomized controlled trial. The Lancet 353 (9155): 773–780. Shilts R (2007) And the Band Played On: People, Politics, and the AIDS Epidemic, rev. ed. New York: St. Martin’s Press. Singer P (2003) One World: The Ethics of Globalization. New Haven: Yale University Press. United Nations (1948) Universal Declaration of Human Rights. http://www.un.org/en/documents/udhr/index.shtml Van Niekerk AA and Kopelman LM (eds.) (2006) AIDS and Ethics in Africa: A Challenge to Our Thinking. Walnut Creek, CA: Left Coast Press. Varmus H and Satcher D (1997) Ethical complexities of conducting research in developing countries. New England Journal of Medicine 337: 1003–1005. Webber DW (2005) AIDS and the Law, 3rd edn. Aspen.

World Medical Association (2008) Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, Article 32: http://www.wma.net/en/30publications/ 10policies/b3/

Relevant Websites http://www.avac.org/ht/d/sp/i/184/pid/184 – AVAC, Global Advocacy for HIV Prevention, ethical aspects of vaccine development. http://www.who.int/hiv/en/ – World Health Organization, overview of HIV/AIDS around the world. http://www.who.int/mediacentre/factsheets/smallpox/en/ – World Health Organization, smallpox.

Biographical Sketch Timothy F. Murphy is Professor of Philosophy in the Biomedical Sciences at the University of Illinois College of Medicine and holds a doctorate in philosophy from Boston College. He is the author or editor of several books, including Ethics in an Epidemic: AIDS, Morality, and Culture (University of California Press) as well as Case Studies in Biomedical Research Ethics (The MIT Press). He has held grants from the U.S. Department of Defense and the National Institutes of Health to conduct research on ethical issues in genetics and research ethics. He has held posts in professional organizations such as the American College of Surgeons Oncology Group and the American Academy of Pain Medicine. He has been a visiting scholar at the American Medical Association Institute for Ethics and serves on the editorial board of Virtual Mentor, the Association’s on-line ethics journal. He is currently writing a book on ethics in military medicine.

AIDS in the Developing World U Schu¨klenk, (Formerly) University of Central Lancashire, Preston, UK; Queens University, Ontario, Canada C del Rio, Emory University, Atlanta, GA, USA C Magis, CONASIDA, Mexico V Chokevivat, Thai Department of Health and Human Welfare, Thailand ª 2012 Elsevier Inc. All rights reserved. This article is reproduced from the previous edition, volume 1, pp 123–127, ª 1998, Elsevier Inc.

Glossary Clinical research Trials conducted primarily in order to enhance knowledge and to help future patient generations. Confidentiality The principle that information gathered by a doctor from a patient will not be provided to third parties without the patient’s approval. Informed consent The principle that physicians and researchers must obtain the permission of

The AIDS epidemic in developing countries has led to a variety of reactions. Most responses were characterized as an epidemic of anxiety, religiously motivated moralizing, and stigmatization. In Mexico, as well as in much of Latin America, AIDS is perceived as a predominantly ‘gay dis­ ease,’ afflicting mostly gay men. Thus, the ‘risk of AIDS’ has been used as a pretext to discriminate against this ‘risk group.’ The result has been that people with AIDS are seen as the cause of the epidemic rather than victims of it. Attempts have also been made to limit the civil rights of gay men as well as other risk groups, such as sex workers, by using ‘public health’ as an excuse to do so. The AIDS problem in developing countries is charac­ terized by a number of factors, most notably that in many developing countries there is a higher prevalence of AIDS cases, there are limited resources for prevention and patient care, there is a greater influence of traditional religious values that may impede public health educa­ tional efforts, and, finally, there are the ethical implications of clinical research undertaken by Western researchers with subjects from such countries.

Clinical Research Clinical Research and Informed Consent Preventive vaccine trials are currently underway in a number of developing countries chosen by the World Health Organization (WHO). These countries have

their patients who have been fully informed of any risks before they agree to medical intervention or research. Resource allocation The distribution of available means to reach certain ends. Sex education In a health educational context, information about implications of sexual behavior is provided in order to support public health goals.

been chosen mostly for epidemiological reasons: A higher rate of infections is likely to lead to faster results from preventive vaccine trials. In this article, we will focus on preventive vaccine trials because of the enormous scale of the epidemic in a number of non-Western societies, such as Uganda and Thailand. For economic reasons, a ther­ apeutic vaccine would probably prove inaccessible for most of those who are infected in these parts of the world. Utilitarian reasons, too, would suggest that it is a good idea to conduct clinical research in developing countries because the impact of the disease is quite high and because there are no realistic alternative modes of action available. U.S. bioethicist Nicholas A. Christakis suggested that first-person informed consent should not be a conditio sine qua non in clinical trials in Africa because in many African countries individuals often perceive themselves as exten­ sions of their family or their community rather than as individuals in their own right. He argued that consent of the community leader may be the only alternative to individual consent. This has been resoundingly rejected as a naive interpretation of African culture, based on outdated anthropological literature of the 1960s. The Nigerian Ebun Ekunwe argues that first-person informed consent is ethically required in all trials that carry risks greater than standard procedures. This seems all the more important as many African governments are little more than dictatorships with no legitimate claim to represent their citizens. They often rule with disregard for the lives

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of their individual citizens. To leave the decision about which of their citizens should participate in clinical trials to such ‘community leaders’ is incompatible with virtually all medical ethics principles whether these are of consequentialist, deontological, or other theoretical backgrounds. Ethical concerns have been raised about preventive vaccine clinical trials in developing countries. They have to do with the gathering of informed consent from prospective participants in research clinical trials. The institutions sponsoring such trials must ensure that patients are able to give voluntary first-person informed consent as required by the WHO and the Council for International Organizations of Medical Sciences (CIOMS) in its International Ethical Guidelines for Biomedical Research Involving Human Subjects. This requires that people know what they are consenting to. Empirical data suggest that not only in the Western world but also in developing countries such as Brazil many trial partici­ pants have a therapeutic misconception and they believe that the experimental agent they have been given is actually a successfully working drug. Peter Lamptey, a native of Ghana and the head of an AIDS research insti­ tution, is aware of a number of trials where, if asked, the research subjects would not have understood what they have consented to. This poses a particular ethical problem in preventive vaccine trials because these vaccines are tested on HIV-negative human subjects who need to have unsafe sex in order to test the vaccine. The UN has set up its own body, UNAIDS, that deals with the worldwide AIDS problem. The organization propagates safer sex to people at risk of contracting HIV, but at the same time it needs at least some of the trial participants to practice unsafe sex. The ethical problem clearly lies in a potential institutional conflict of interest under such cir­ cumstances. Kirby has suggested that informed consent procedures must not only involve first-person voluntary informed consent but also be improved up to the stage where patients have a sufficient understanding of the procedure they are giving consent to. Clinical Research and Access to Newly Developed Drugs Another concern has to do with a sensible ethics require­ ment mentioned in the WHO/CIOMS ethics guidelines. It requires that if drugs are successfully tested by Western researchers in developing countries, the people in those countries must subsequently have access to the drugs. This ethical demand is also reflected in a number of ethics codes that are in operation in developing countries. Thailand, for instance, in its National Plan for HIV/ AIDS Vaccine Development and Evaluation, requires that ‘‘there must be written assurance that, if the study vaccine proves to be effective and appropriate for large-

scale public use, the vaccine manufacturer will supply the vaccine to Thailand at special and affordable prices within an appropriate time frame.’’ Knowing that phar­ maceutical companies are usually not sensitive toward demands from developing countries for affordable drugs, it seems only just to suggest that they should offer these drugs to people in those countries where clinical trials have made the development of the drug possible in the first place. Unfortunately, this requirement has not been met by UNAIDS in regard to AIDS preventive vaccine trials. It is interesting to note that a UN organization disregards international WHO/CIOMS ethics guidelines that pertain directly to its own work. Merck, one of the manufacturers of a promising new class of drugs, the socalled protease inhibitors, has undertaken clinical trials of this drug in Brazil. The company subsequently has not provided access to protease inhibitors to Brazilians with HIV and AIDS. Ndinya-Achola has suggested that developing coun­ tries should demand that vaccines be tested in the country where they are manufactured first before large-scale trials occur in developing countries. We tend to agree that this is a reasonable demand except in situations that clearly demand a different mode of action. One such exception could be that of a candidate subtype E vaccine, which is currently being tested in phase I and phase II trials in Thai subjects. This is because the virus it is supposed to deal with is highly prevalent in Thailand and is virtually unknown in developed countries. For technical reasons, it would therefore be impossible to test this drug in the country where it is manufactured, and also because the country where it is manufactured is not considered a target market by the manufacturer. On a more general level, the 1948 UN Declaration of Human Rights declares that ‘‘everyone has a right to a standard of living adequate for the health and well­ being of himself and his family, including . . . medical care.’’ Clearly, there is a huge gap between the ideal explicated in this groundbreaking UN human rights document and the reality of access to drugs and health care in developing countries. It is all the more disturbing that in cases where there is significant risk to the citizens of developing countries in the development of new drugs, which are then patented by international pharmaceutical companies, these people are not guaranteed access to these drugs once their efficacy and safety are established.

Sex Education AIDS awareness programs in developing countries are generally under fire from religious institutions because of their opposition to sex education. Health educational programs in the Sudan have been halted because of reli­ giously motivated objections. Islamic religious leaders

AIDS in the Developing World 107

insist that ‘Allah can cure AIDS,’ and they have forced the government to outlaw sex education altogether. The importation of condoms has also been restricted. In a number of developing countries, representatives of the Roman Catholic Church have gone to great lengths in their attempts to frustrate governmental and nongovern­ mental health education that informs the public about safe sex. Religiously motivated resistance to public health education promoting the use of condoms was particularly fierce in predominantly Catholic countries such as the Philippines and Uganda. Because of pressure from religious organizations and other conservative lobby groups, Latin American govern­ ments have been hesitant to develop effective preventive campaigns. Instead, they designed lukewarm campaigns so as not to offend or enrage the powerful religious sector of society. Health promotion campaigns that recommend the use of condoms were attacked as ‘permissive and conducive to promiscuity.’ The Mexican government was singled out for criticism by Catholic lobbyists who requested a return to ‘traditional sexual behavior.’ In Kenya, Catholic bishops and teenagers from Catholic schools held public marches at which they burned con­ doms and health educational booklets. The ethical conflict lies in the question of whether adhering to moral teachings of major religions is of greater importance than saving human lives through ade­ quate sex education. Christian ethicists, for instance, have argued that no lives would be endangered by not using condoms as long as people adhere to religious teachings about correct sexual behavior. The question, however, is whether this prevention strategy can reasonably be expected to succeed as a viable means of health promo­ tion for entire societies. This seems quite doubtful. Therefore, the ethical problem has to do with the issue of whether it is better to adhere to religious teachings in health promotion materials or whether realistic practices for the prevention of AIDS, such as the use of condoms, should be addressed explicitly. The answer seems to follow from the issue of what the legitimate function of a state is. If the primary function of the state is to further the welfare of its citizens, it seems clear that AIDS pre­ vention is of greater importance than upholding religious moral values. However, if one believes that the function of the state is primarily to uphold religious values, no matter at what cost, one could argue that the government of the Sudan is ethically justified in withholding vital AIDS prevention information from its citizens. It is doubtful that such views would be supported by many people other than religious fundamentalists. Indeed, the view that the primary function of the state is to improve the quality of life of its citizens is widely shared among governments and is undoubtedly in the best interest of those affected by governmental policies. Usually, reli­ gious beliefs are considered a private matter and the

state is not seen to be responsible for implementing such beliefs for all its citizens. This is particularly true for those citizens who do not subscribe to the beliefs of the religion in question.

Resource Allocation The just allocation of scarce healthcare resources is already a problem in many developed countries where costs for high-tech medical interventions as well as costs for newly developed drugs have skyrocketed over recent decades. Given the limited resources of many developing countries, these problems have much greater urgency than is the case in the developed world. In situations in which only about 2% of the GNP is devoted to public health care, it is difficult to see how disease can be dealt with effectively. In Latin America, the ethical debate has centered on the issue of the high cost of available treat­ ments and the denial of care to victims of discrimination. Countries such as Laos or Myanmar are still unable to provide a safe blood supply because screening all units before transfusion is not economically sustainable. The crucial ethical question concerns the microallocation of resources within overall spending for health care. In Thailand, for instance, 75% is devoted to medical care for people with AIDS, while 25% of the 1997 AIDSrelated budget was spent on AIDS prevention. The price of antiretroviral medications varies widely worldwide and has no relation to a country’s income, its GNP, or the number of HIV/AIDS patients that it has. Only Zidovudine (AZT) is manufactured by more than one laboratory (Glaxo-Wellcome, as well as several gen­ erics) and thus the price varies widely. In Mexico, Retrovir (a brand name of AZT) costs the equivalent of about $200 per month, while generic AZT is available for under $100 per month. Of the protease inhibitors, data on price for comparison is available only for Indinavir. In Mexico, the third country in the world to approve Indinavir, the price is lower than in other countries such as the United States, Argentina, Chile, Brazil, and Venezuela. Despite this, the use of a combination of AZT, 3TC, and Indinavir in Mexico costs around $783 per month ($681 if generic AZT is used), which is more than eight times the minimum wage in the country. If the minimum wage is related to the price of drugs, it becomes obvious that in developing countries the cost of antire­ troviral medications is, comparatively, 80% more than it is in developed countries. Analysis of indirect costs as well as direct pricing of drugs provides a better indicator of the need for such ‘expensive drugs,’ even in developing nations. It has been calculated that each year of life gained for an AIDS patient in a developing country costs about $6000, which compares quite favorably with other health

108 AIDS in the Developing World

interventions, such as dialysis ($32 000 per year), which are now routine in many countries that are still debating whether to subsidize antiretroviral drugs. Unfortunately, the funds available for AIDS treatment are insufficient to care for all those who have already developed AIDS illnesses. Because of these problems, it is clear that, worldwide, only a few lucky and wealthy AIDS patients will be able to pay for the expensive combination of effective antiretroviral treatments. This increases the pressure to find an effective vaccine or adequate educational interventions. The argument to invest in preventing new cases rather than spending all the available money to help those already sick is based on a utilitarian weighing of costs and benefits. Usually, dis­ ease prevention is cheaper than treatment of illnesses that have already occurred. If the funds one has are limited, it may be prudent to prevent further increases in cost through greater numbers of patients by investing in the prevention of new infections. Some have argued that Western countries have a moral obligation to provide resources and know-how in order to fight the AIDS epidemic in developing countries. Welfarist theories of distributive justice would support this course of action. However, there is some reason to assume that the problem is caused to a large degree by a situation in which Western governments allow markets to determine the price of new drugs. Nonmarket solutions utilized to determine a just price might be an ethically justifiable alternative to the current status quo, and this has the potential to solve some of the resource allocation problems that occur in developing countries.

A consequence of this confidentiality breakdown is often the ‘epidemiological persecution’ of those affected. Candidates for many jobs are tested for HIV even though this is prohibited by law. People also lose their jobs because they are HIV positive, even though this is illegal. Because health insurance in Mexico is provided through the workplace, people with AIDS lose their coverage the moment they lose their jobs.

Conclusion The AIDS situation in developing countries is not funda­ mentally different from that in developed nations. Indeed, the ethical analysis is not different in any meaningful way. The factors that have an impact on AIDS in these parts of the world are different from those elsewhere, as we saw in the discussion of the resource allocation problems and the issue of religious values. This does not mean that a new method of ethical analysis is warranted; the existing instruments are sufficient for this issue. However, there is some evidence that Western bioethicists writing about the AIDS issue in developing countries lack sufficient knowledge of the actual problems at stake. It is important, in particular in regard to AIDS, to carefully distinguish fact from fiction. See also: Confidentiality, General Issues of; Informed Consent; Patients’ Rights; Resource Allocation.

Further Reading Confidentiality It is often difficult to maintain confidentiality in hospitals where people with AIDS are separated from other patients. Many ethics textbooks mention that it is unjustifiably dis­ criminatory to treat people with AIDS differently from other patients. They should be treated like every other patient in order to avoid stigmatization. However, ethical conflicts may also occur if people with AIDS, who have already severely compromised immune functions, were exposed to the wide variety of pathogens that characterize hospitals everywhere. Hence, special treat­ ments might be considered for AIDS cases in developing countries in order to limit risks to other patients. This benevolent course of action could then lead to a breakdown of confidentiality. In Mexico, many cases of AIDS are not reported because of fears of confidentiality breakdown. AIDS cases are often reported using identifiers such as name, address, and so on, to prevent repeated case reporting.

Christakis NA (1988) The ethical design of an AIDS vaccine trial in Africa. Hastings Center Report 18(3): 31–37. Council for International Organizations of Medical Sciences (CIOMS)/ World Health Organization (1993) International Ethical Guidelines for Biomedical Research Involving Human Subjects. Geneva: CIOMS. Ekunwe EO (1984) Informed consent in the developing world. Hastings Center Report 14(3): 22–24. Faden RR and Beauchamp TL (1986) A History and Theory of Informed Consent. New York: Oxford University Press. Grady C (1995) The Search for an AIDS Vaccine: Ethical Issues in the Development and Testing of a Preventive AIDS Vaccine. Bloomington: Indiana University Press. Green EC (1994) AIDS and STDs in Africa: Bridging the Gap between Traditional Healing and Modern Medicine. Boulder, CO: Westview. Ijsselmuiden CB and Faden RR (1992) Research and informed consent in Africa. New England Journal of Medicine 326: 830–834. Kirby M (1983) Informed consent: What does it mean? Journal of Medical Ethics 9: 69–75. Miller N and Rockwell RC (1988) AIDS in Africa: The Social and Policy Impact. Lewiston, NY: Edwin Mellen Press. Ndinya-Achjola JO (1991) A review of ethical issues in AIDS research. East African Medical Journal 68: 735–740. Nowak R (1995) Staging ethical AIDS trials in Africa. Science 269: 1332–1335. Queiroz de Fonseca Filho O and Lie RK (1995) Informed consent to preventive AIDS vaccine trials in Brazil. AIDS and Public Policy Journal 10: 22–26.

Altruism and Economics J Fender, University of Birmingham, Birmingham, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Altruism The inclination to behave in such a way as to benefit others without anticipation of reward from external sources; unselfishness. Asymmetric information The situation in which one or more people know something that other people do not. Egoism The inclination to behave in such a way as to benefit oneself; selfishness. Externality The impinging of one or more agents’ actions on the well-being of others without the mediation of the price mechanism.

Introduction Economic theories involve the construction of models designed to illuminate various aspects of economic beha­ vior. Models are characterized by assumptions. Which particular set of assumptions one makes in constructing a model depends, in part, on what one is trying to model; assumptions relevant to one problem may not be so rele­ vant if one’s focus of interest is somewhat different. Economic reality is extremely complicated and impossi­ ble to model in all its complexity. Models, like maps, are inevitably selective. But just as we can distinguish between good and bad maps, some models are better than others. The important question in evaluating economic models is how well they capture the salient features of the problem we are interested in. It may not be easy to answer this question. Many of the disagree­ ments between economists may be due to the fact that they use (perhaps implicitly) different models of the economy without fully realizing it. It might be added that the common perception that economists always disagree with each other considerably overestimates the amount of disagreement among economists. Economic models typically involve agents such as consumers, firms, and governments, whose behavior determines aggregate outcomes. To understand what happens in the economy, it is therefore necessary to explain the behavior of these agents. This is typically done by assuming they are rational, which means they maximize some objective function subject to relevant constraints. In the case of consumers, the objective func­ tion is usually a utility function, which shows an agent’s

Nash equilibrium A situation in which each agent is doing as well as possible for himself or herself, taking the behavior of other agents as given. Pareto efficiency A state of affairs in which it is impossible to make one person better off without making at least one other person worse off. Prisoner’s dilemma A problem in game theory, where agents choose between cooperating and defecting and where each agent prefers to defect given the behavior of the others. In the Nash equilibrium of the game, both agents defect, which is Pareto inferior to the case in which both agents cooperate.

preferences over a number of outcomes. An example is when a consumer with a given amount of money has to choose how much to consume of a number of different goods. The utility function represents his preferences in such a way that he associates a higher level of utility to one bundle of goods over another if and only if he prefers the former. There are standard techniques, familiar to generations of economics students, for carrying out such a maximization exercise and deriving appropriate implications. A crucial question in the current context concerns the arguments that enter the utility function. If these arguments relate exclusively to the individual in question (his own consumption of goods and services, for instance), we say his preferences are egoistic. (Egoism should be distinguished from egotism. Egoism is synonymous with selfishness; egotism is self-centeredness – someone who relates everything that happens to himself may be described as egotistical.) Suppose, however, that, in addi­ tion, variables relating to other agents’ actions or characteristics enter the function; then some sort of interdependence exists. This might arise for a whole number of reasons; such interdependencies can be described as externalities of which it is possible to give a large number of examples. Pollution and congestion are two common examples. For example, my driving my car may delay other peoples’ journeys, hence reducing their current utility. It may also, by increasing the amount of carbon dioxide in the atmosphere, affect the utilities of individuals many years hence. It might be the case that instead of some agents’ con­ sumption levels entering as arguments into other agents’

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utility functions, it is their utilities themselves that enter as arguments. If this is the case, and they enter positively, then we can describe this as altruism; indeed, it might seem we can define altruism as the situation in which one agent’s utility depends positively on the utility of another. If the effect is negative, then we might describe this as representing hatred, malice, or envy. Egoism is then the intermediate case in which there is no effect. There are two reasons (at least) why my utility may depend on someone else’s. One is that my happiness may be genuinely affected by someone else’s well-being. The term ‘sympathy’ has been used in the literature to describe such a link; examples include love and friendship. But second, I may behave toward someone in a way that can be explained by my utility depending on his not because of any direct effect of his happiness on mine but because I believe I should behave in this way. ‘Commitment’ is a term that has sometimes been used to describe such interdependence. The interdependence of utilities in this case represents beliefs about how I should behave toward such a person. Such beliefs might change through argument, debate, and persuasion and because of new evidence, in which case the utility function would be rather different from a standard utility function, which is usually regarded as in some way more ‘basic’ – that is, dependent on tastes that are not susceptible to further analysis. Instead, the interdependence has a cognitive component; if these beliefs change, then behavior toward the other person might change. For example, if a father gives his son some money for some worthy purpose but the son wastes the money, the father might change his behavior toward his son in the future. This example illustrates what should be an obvious point: Relationships may well be characterized by both sympathy and commitment; parents may consider themselves to have various obligations toward their children but may love them as well. A simple formalization of the preceding point may be helpful: Consider individual E, an egoist, whose utility function is given by UE ¼ uE(xE), where xE represents his consumption. Then we might suppose A, the altruist, to have a utility function of the form UA ¼ uA(xA) þ �u(xE), where xA represents A’s consumption of goods and services, and � is greater than zero. His utility function consists of two components – a self-regarding component uA(xA) and an ‘other regarding’ component �u(xE); � might be described as the ‘degree of altruism.’ The formulation can be extended to many individuals in a fairly obvious way. One complication occurs when there is more than one altruist. Specifically, suppose there is another altruist who is altruistic toward A. The question then arises whether it is uA or UA that enters into the second altruist’s utility function. It can plausibly be argued that if the interdependence is a case of sympathy, UA is the relevant argument: If one is well disposed

toward someone, one will surely want his relationships with other people to go well. It is not so clear whether the other-regarding part of his utility function should enter into the second altruist’s utility function if that represents commitment. Suppose the first altruist has beliefs that someone has been badly treated. Should the second altru­ ist take actions, if he can, to improve the lot of this person, because of his altruism toward the first altruist and not because of any beliefs he might also have about whether this person has been badly treated? A similar problem emerges when we consider social welfare, by which we mean whatever it is that policymakers should seek to maximize. Suppose we adopt a utilitarian social welfare function, something fairly perva­ sive in economics, then we can ask whether it is the uA’s or the UA’s that the government should sum. Certainly, if the interdependence between utility functions represents sympathy, we should include the latter; for example, effects on loved ones are very appropriate to include when evaluating the social costs of accidents. In the case of commitment, it can plausibly be argued that it is the uA’s that should enter the social welfare function. (Is it right that someone should be treated better merely because some people think he should be better treated?)

Does Altruism Exist? It is easy to give examples of apparent altruism. We might mention blood donation (in a system in which blood donation is not paid for), anonymous giving to charity, voting, saving Jews from Nazis, looking after elderly relatives, martyrdom, etc. However, it is possible to explain much of this behavior in self-interested terms. Some apparently altruistic behavior may be explicable in terms of enlightened or long-term self-interest. David Hume argued that martyrs are maximizing their chances of salvation. Charitable giving can be given a number of explanations compatible with self-interest. If it is not anonymous, then there may be kudos associated with charitable donations; if anonymous, givers may get a ‘warm glow’ from their giving. Employers may treat their workers well not out of altruism but because by doing so the workers become more productive and raise their employers’ profits. There is a huge amount of literature on what are called ‘efficiency wages’ that explores precisely this idea. Nevertheless, although it is certainly the case that much apparently altruistic behavior can be explained in terms of enlightened self-interest (or perhaps given some other explanation consistent with self-interest, such as that people ‘feel good’ about taking such decisions), it is not clear that all such behavior can be so explained. It is probably impossible to refute a determined believer in the self-interestedness of all human behavior. However, there

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are a number of reasons for being skeptical of such a view. There have been some studies, for example, of those who rescued Jews from the Nazis during World War II, often at considerable risks to themselves, when there were no apparent self-interested reasons for such behavior. Some of the rescuers had no religious beliefs, so it is unlikely that they were motivated by expected rewards in the hereafter. Some of them kept their activities secret from everyone whose knowledge was not crucial for the success of the operation, so pressure or expected praise from friends or family members was an implausible expla­ nation for their behavior. The most plausible explanation was that they behaved in this way because they believed it was the right thing to do. The position taken in this article and that, I believe, is consistent with the evidence is that a nonnegligible proportion of human behavior can be described as genuinely altruistic. It might further be asked whether altruism of both sympathetic and commitment types can be said to exist. The argument in the previous passage would apply more to the commitment version. But we can also argue that altruism of the sympathy type exists as well. Consider friendship and romantic love. Although much of this may be explicable in self-interested terms, one interpre­ tation of love has the lover as essentially becoming ‘one’ with the person loved so that each lover essentially maximizes the sum of both partners’ utilities. Friendship might be interpreted as each friend having a utility function that puts at least some weight on the other’s utility. This is perhaps a more fruitful and realis­ tic way of envisaging friendship than regarding it merely as something indulged in from a self-interest point of view. It is difficult to explain, for example, why friends and lovers sometimes grieve so much at the loss of a friend or lover or the ending of a relationship if we adopted a purely self-interested interpretation of love or friendship. The view that altruism exists is perfectly compatible with an assumption that agents are rational. Rationality means pursuing the most effective means of achieving one’s goals, and this is quite consistent with these goals being altruistic ones.

Altruism and Evolution If altruism exists, the question arises how it came to exist. If evolution means the ‘survival of the fittest,’ then it might be argued that we should expect to see egoism prevail. Because egoists maximize their own survival probabilities, then if only the fittest survive, it might seem to follow that those who put the greatest weight on their own well-being will have the greatest probability of survival, and so, in an evolutionary context, egoists will tend to predominate. But such an argument is not

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necessarily correct. The crucial point is that survival may well be enhanced by cooperation, and if agents are predisposed toward cooperation, that may raise their sur­ vival propensities. One way of studying this issue is to use game theory. A game that is frequently used in this context is the prisoner’s dilemma. In the simple two-player version, two agents each have a choice between two actions, cooperate or defect. If one agent cooperates, the other agent gains by defecting. But a situation in which both agents cooperate is preferred by both of them to a situa­ tion in which both agents defect. An outcome where both agents cooperate is not a Nash equilibrium, where each agent is doing as well as he can for himself given the behavior of the other, though, as each agent prefers to defect if the other cooperates. However, a situation in which both players defect can be a Nash equilibrium since neither player will want to cooperate if the other player defects. So this is what might be expected to occur, at least in a one-shot game; hence, the paradox is that the outcome that might be expected to occur, where both agents defect, is inferior for both of them to the one in which both cooperate. The idea can be generalized in a straightforward manner to more than two players. Prisoner’s dilemma-type situations are quite common. Examples are pollution and voluntary contributions to finance a public good. If given a choice between polluting and not polluting, the (selfish) agents may prefer to pollute because the private benefits from not polluting are less than the private costs, and we may end up with an outcome where all agents pollute, even though the outcome where no agent pollutes would be preferred by everyone. Evolutionary game theory, which has recently been a very active area of research, considers an environment in which agents do not choose which strategy to adopt but in which the strategy they play is determined genetically. Suppose some agents always cooperate, others always defect, and the tendency to cooperate or defect is passed on to the next generation, with survival chances affected positively by the outcome of the game played. Agents are matched at random with each other. Suppose that initially all agents cooperate. Then a mutant who defects will prosper, so one would expect genes for defecting will spread in the population and it might seem that the only outcome is that all the population defects. This is so provided that matching is random – the chance of each agent being matched with a cooperator equals their proportion in the population. However, if we relax this assumption so that cooperators are more likely to be matched with other cooperators and defectors with defectors, this conclusion need not obtain and it is possi­ ble that a stable fraction of the population cooperates in a long-term equilibrium.

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How Does Altruism Affect Economic Behavior? Altruism affects economic behavior in many and varied ways, some of which are discussed in this section. One argument, Ricardian equivalence, named after the English economist David Ricardo (1772–1823), is that tax cuts (financed by tax increases on future generations) will have no effect on spending – agents will realize that their descendents will have to pay higher taxes, and altruistic linkages are such that they save the extra money received and pass it on to later generations. To be more precise, suppose I am given a (completely unex­ pected) tax rebate of $100 that will be financed by a tax on one of my descendents of equal present value – that is, the tax will pay off the $100 that the government presumably has borrowed to finance my tax rebate plus accumulated interest. Also, suppose I was planning to transfer a certain amount of money to my descendents before the tax rebate was given. Then because I can return my descendents to the same level of consumption that they could have expected before the tax cut, and because I could have given them the reduced level of consumption they would obtain were I not to increase my saving in response to the tax rebate but did not, it follows that giving them this level of consumption is my preferred option, so I will therefore save the entire amount of the tax cut and pass it on to my descendents, who will eventually use the money and accumulated interest to pay off the higher tax bill that will eventually arrive. Putting the point in a slightly different way, the combination of the current tax rebate and future tax increase does not change the oppor­ tunity set facing me and my descendents at all – any allocation of consumption that was feasible previously is still feasible, and any allocation of consumption that was not feasible previously is still no longer feasible, so it follows as a matter of logic that I will make the same choice in terms of allocation of consumption between the generations. The doctrine of Ricardian equivalence requires a number of very restrictive assumptions to hold. It requires (inter alia) perfect capital markets, that taxes are nondis­ tortionary, and that all agents are altruistically linked to their descendents. Even if these assumptions are made, Ricardian equivalence may not hold if information is imperfect. Suppose, for example, that the future taxes do not fall on the descendents of the person granted the tax rebate but, rather, on the descendents of someone else, who does not receive a tax rebate. Then unless this individual realizes that his descendents are going to be faced with a higher tax bill, he is not going to change his behavior. Ricardian equivalence thus has extremely demanding informational requirements. The question whether it holds (or perhaps rather whether it is a useful

approximation) is hence empirical, but unfortunately the empirical evidence seems unclear. Another analysis of the effects of altruism on economic behavior is constituted by the celebrated rotten kid the­ orem of Chicago economist and Nobel Prize winner Gary Becker. The idea is as follows: Consider a family, only one of whose members is altruistic toward other members of the family but who can make lump sum transfers between the members of the family. Then the theorem states that under certain conditions, all the members of the family will act in the collective interest of the family. Why should this be the case? Suppose one of the egoistic members of the family (the rotten kid) has an opportunity to earn an extra $100 but at a total cost to other members of the family of $150. Then the altruistic member of the family can prevent this by reducing his transfer to him by more than $100 if he carries out this action. The rotten kid hence realizes that if he earns the extra money, he will be made worse off by the effects of the reduced transfer and so will not carry out the action. Thus, the fact of the transfer means that the impact of his action on the rest of the family is internalized. It is clear that the result is based on some restrictive assumptions. For example, the altruis­ tic member of the family must be aware of what the other members of the family are doing; also, transfers must be ‘operative’ – if the transfer that the altruistic member of the family is making to the rotten kid is less than $100 in the first place, he clearly cannot reduce his transfer to him by $100, provided that negative transfers are ruled out. Also, the rotten kid must realize that the altruistic mem­ ber of the family will carry out his threat if he misbehaves, so there is no commitment problem. However, despite these limitations, the theorem is important. It shows that for members of a group to behave cooperatively, it is not necessary for every member of the group to be altruistic, and in some circumstances it is sufficient that just one member is altruistic. Therefore, even if altruism is fairly rare, it does not follow that its consequences for economic behavior are necessarily slight.

Is More Altruism Preferable to Less? It might be thought that the answer to this question is obviously affirmative, in the sense that it is difficult to see how putting more weight on others’ utilities could make things worse if the social welfare function is utilitarian, or even if it puts positive weight on individuals’ utilities. However, one of the lessons of economics is that what may seem to be obvious on the basis of informal analysis may, on closer inspection and scrutiny, turn out to be wrong. This is one of the great advantages of rigorous modeling. One example is the paradox of thrift: Suppose everyone raises the amount they save out of a given amount of income. But this means that spending and

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income may fall, and it is possible that actual savings do not rise and could, in fact, fall. Similarly, there are paradoxes with altruism, and this section discusses a number of ways in which altruism may reduce welfare. Altruism and the Enforcement of Cooperative Agreements Altruism may make it more difficult to enforce coopera­ tive agreements. A way of formalizing this idea is to consider an infinitely repeated two-person prisoner’s dilemma game. If the game is repeated, agents may come to a cooperative agreement, enforced by the threat of returning to the (one period) Nash equilibrium should a violation occur. Each agent cooperates provided that the other agent does so, but should either agent defect, the other agent punishes him by defecting the next time the game is played (and possibly for longer). It can be shown that provided certain conditions are met, the cooperative outcome can be maintained. A considerable amount of work in game theory has analyzed the circumstances in which such an agreement is sustainable. One considera­ tion is how likely reversion to the Nash equilibrium is. The more likely this is, the more sustainable the coopera­ tive agreement. Altruism may reduce the likelihood of reversion to the Nash equilibrium if a defection occurs; if agents are altruistic toward each other, they are less likely to want to punish the other player if they defect. This is not the only way in which altruism may affect matters; for example, it may make deviation from the cooperative agreement less desirable. But it is possible that the undesirable effect dominates. A variant of this idea may be in a family with one altruist in charge. He may be less willing to punish other members of the family to ensure they behave in a desir­ able way. Parents may be familiar with this phenomenon. Commitment problems are quite important in economics and in other aspects of life, and there are a number of possible solutions. For example, delegation to an agent with different preferences may solve such a problem. So if an altruist realizes that he will be unable to carry out the appropriate punishment if a cooperative agreement is broken, he might delegate the decision to an egoist or even a misanthrope (someone who puts negative weight on others’ utilities). Perhaps the English public school (which is really a private school) has a function of this kind. The Samaritan’s Dilemma Altruism may mean giving to the poor, rescuing those who have had accidents, caring for the weak and infirm, and so on. However, if I believe, for example, that my relatives will look after me in my old age, this may reduce the incentive for me to save to support myself in my

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retirement. It may also increase my incentive to gamble. If I gamble and lose, I may not in fact lose much because my relatives will not allow me to starve. But if I win, the benefits may be considerable. However, such behavior may not be socially desirable because it involves too much risk taking and too little saving. The problem can be described as one of moral hazard, by which is meant the incentive to take excessive risks if one is shielded from the downsides of taking those risks (someone whose house is insured against fire may, for example, have an inade­ quate incentive to take suitable fire prevention measures.) The problem can be mitigated if there are suitable commitment mechanisms available. Compulsory enrol­ ment in a pension scheme may prevent me from saving too little for my old age. Some of the salient features of the welfare state can perhaps be explained in this way. The Altruist’s Dilemma It is possible that altruism may resolve a prisoner’s dilemma: If the two players playing the prisoner’s dilemma each wish to maximize the sum of agents’ utilities, then they will cooperate. However, we should not conclude from this that the lesson of the prisoner’s dilemma is that it shows that the essential problem is one of selfishness and that many societal problems would disappear if people were altruistic. It is in fact possible to construct an altruist’s dilemma, similar to the prisoner’s dilemma, in which behaving in a more altruistic manner may make every agent worse off. So altruism is not necessarily the solution to all of society’s problems. The basic point is that there are coordination problems in society, which may persist (or change their nature) if agents become more altruistic. In other words, there are often divergences between an individual’s interests and society’s interests, and these divergences may persist even if individuals’ interests are somewhat altruistic. However, it seems that the altruist’s dilemma requires there to be extreme degrees of altruism – agents put little weight on their own utility and most of the weight on the other person’s utility. For more moderate levels of altru­ ism, it seems that the dilemma disappears. Thus, it is not at all clear that the dilemma has any practical importance, and it is difficult to think of any plausible examples. Altruism and Imperfect Information Imperfect and asymmetric information is pervasive and of considerable relevance for ethical behavior. (Imperfect information is the case in which not everything is known; asymmetric information is the case in which some people know things that others do not.) In the absence of asymmetric information, lying would be impossible, and it is difficult to see how honesty would be a virtue. It is easy to give examples of undesirable

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egoistic behavior under asymmetric information (e.g., a shopkeeper lying about product quality). Nevertheless, there may be circumstances in which altruism may be welfare decreasing in the presence of asymmetric information. The reason is that since a person generally has much more information than others about what contributes to her own utility, it may be much more efficient for society to allocate that individual a certain quantity of money and allow that individual to decide how to spend it in her own interests than for others to try to make her consumption choices for her. However well meaning others may be, if they do not know her preferences, it may be more difficult for them to max­ imize her utility than for her to do so herself. Therefore, selfishness in this area may do better than altruism. Stated simply, the point is that someone who is well meaning but ignorant or foolish may not make things better. Interdependent Utility Functions With interdependent utility functions, it is quite easy to find examples of how increased altruism may make things worse. Suppose Romeo loves Juliet and Juliet is unhappy. If the weight that Romeo puts on Juliet’s utility is increased further, he may become unhappier as a conse­ quence of this interdependence. Juliet’s unhappiness may as a consequence increase and so forth. It seems that this example works with altruism of the sympathy variety. It is less clear that it works with commitment altruism. We should not conclude from the discussion in this section that altruism is necessarily a bad thing. It may still be the case that, on balance, more altruism is preferable to less, but the point of the section is to argue that things are somewhat more complicated than might appear at first sight. However, some of the preceding examples of how altruism may make things worse may seem rather contrived or can be solved by appropriate institutional changes.

The Implications of Altruism for the Design of Institutions The idea that self-interested behavior can have beneficial social consequences goes back to at least Adam Smith. The baker may provide us with our daily bread not out of altruism but out of his own self-interest; he bakes the bread so that he can exchange it for other goods that he values and consumes, but in doing so he contributes to our welfare as well. One of the main achievements of econom­ ics is to show that an economy in which agents are self-interested can work harmoniously; this idea has been formalized in the first theorem of welfare economics, according to which under certain admittedly highly

restrictive conditions a perfectly competitive economy is Pareto efficient. It must be emphasized that the theorem rests on highly restrictive assumptions that are certainly not satisfied, even approximately, in any economy. It requires assump­ tions of perfect information and perfect competition (i.e., the absence of monopoly or any ability on the part of firms to influence the prices they charge), and it is easy to think of ways in which if these assumptions are relaxed, self-interested behavior may be harmful. Firms may, on the one hand, promote both the common and their own interest by producing valued goods efficiently; on the other hand, if they produce shoddy goods inefficiently, maltreat their workers, or seek to change the political outcomes by making political donations (etc.), it is more difficult to argue that there is a congruence between private incentives and social gain. Nevertheless, the theorem is extremely valuable for suggesting the insight that self-interest may have beneficial social consequences. It is not clear that there is any feasible alternative to using the price system to allocate most goods and services in any complex economy. Attempts to avoid using the price system such as central planning have been a dismal failure. There is no satisfactory account of how an econ­ omy based on altruism would work and no examples of such an economy in practice. How much of a certain good should be produced? A market economy solves this pro­ blem in a straightforward way – goods are produced to maximize producers’ profits – and in certain conditions this means the socially desirable level of output is pro­ duced. Even if it is not, it may be possible to introduce measures such as corrective taxes that would ensure a more socially desirable level of output. In an altruistic economy that does not use the price system, it is not at all clear how decisions of this kind would be reached, parti­ cularly in a world of imperfect information in which it would be difficult to ascertain agents’ preferences. Thus, it seems inescapable that we will continue to live in an economy in which a significant amount of activity is conducted through markets using the price mechanism. The relevant question is how altruism can work in such a framework. It might be suggested that there is no need to even try to introduce altruism into sectors of the economy in which self-interest does a perfectly good job of satisfying the public interest. What of those areas in which there is less of an apparent congruence? There are, of course, ways in which those who might be tempted to behave in undesirable ways can be encouraged to behave better out of their own self-interest. The legal system is perhaps the main way. Monopolies and cartels can be broken up, polluters can be punished, regulations can be used to enforce minimum product quality standards, and so forth. However, although these mechanisms may considerably ameliorate the imperfections of a market economy, they surely do not abolish them completely. It

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is perhaps here that there is a role for altruism. For example, committed teachers and doctors may provide considerably more help and guidance to their students and patients than might be expected solely on the basis of self-interest even of the enlightened variety. This point needs to be borne in mind when devising appropriate incentives for those who work in the public sector. It may be that those who devise such incentive schemes, particularly those that involve a proliferation of targets, put too much weight on the view that workers in these sectors are basically selfish and need to be motivated as such. If many such workers instead have a genuine commitment to their work, rather different incentive mechanisms may be appropriate, but this needs further exploration.

Conclusions Altruism and economics is a fascinating topic that deserves considerably more research. One important area for research involves models in which some, but not all, agents are altruistic. It may not be necessary for a desirable outcome to be reached that all agents are altruistic, but this is something that needs to be explored further. Another important topic for further research lies in the area of imperfect and asymmetric information. As discussed previously, altruism may have both positive and negative consequences in such circumstances, but clearly more needs to be done to specify the circumstances in which each outcome is more likely and to derive the appropriate implications for institutions. A topic that has been subject to little research by either economists or philosophers is the opposite of altruism, where agents put negative weights on others’ utilities. We might describe this as hatred, envy, or malice. It seems that there is a considerable amount of hatred around, and it plays an important role in crime, war, and domestic relationships (inter alia). Quite possibly, research in this

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area may shed further light on the role of altruism in the economy. See also: Egoism and Altruism; Evolutionary Perspectives on Ethics; Game Theory.

Further Reading Altonji JG, Hayashi F, and Kotlikoff LJ (1997) Parental altruism and inter vivos transfers: Theory and evidence. Journal of Political Economy 105: 1121–1166. Bergstrom TC (2002) Evolution of social behavior: Individual and group selection. Journal of Economic Perspectives 16(2): 67–88. Bernheim BD and Stark O (1988) Altruism within the family reconsidered: Do nice guys finish last? American Economic Review 78: 1034–1045. Coate S (1995) Altruism, the Samaritan’s dilemma and government transfer policy. American Economic Review 85: 46–57. Fender J (1995) Altruism, ethics and economics: The significance of non-egoistic preferences for economics. In: Brittan S and Hamlin A (eds.) Market Capitalism and Moral Values. Aldershot, UK: Elgar. Kolm S and Ythier JM (2006) Handbook of the Economics of Giving, Altruism and Reciprocity. Amsterdam: North Holland. Monroe KR (2004) The Hand of Compassion. Princeton, NJ: Princeton University Press. Zamagni S (ed.) (1995) The Economics of Altruism. Aldershot, UK: Elgar.

Biographical Sketch John Fender is Professor of Macroeconomics at the University of Birmingham, UK, where he has been since 1992. He was a lecturer at the University of Lancaster from 1976 to 1985 and an associate professor at The Pennsylvania State University from 1985 to 1992. He has three degrees from Oxford (M.A., M. Phil., and D. Phil.). He has held visiting positions in the United States, Hong Kong, Russia, Sweden, and Australia. His publications include books on Keynes and inflation and numer­ ous publications in professional journals. He is currently writing a book on monetary policy. An area of his current research is exploring the relationship between institutional change and economic growth and development. He is also interested in local government finance and various aspects of philosophy, particularly as they impinge on economics.

Anatomy, Ethics of Y M Barilan, Sackler Faculty of Medicine, Tel Aviv University, Tel Aviv, Israel ª 2012 Elsevier Inc. All rights reserved.

Glossary Anatomy The practice of using the dead human body or dead parts thereof for the sake of research and education. Other uses, such as in art and religion, are not discussed in this article. Death In the context of anatomy (but not necessarily in contexts such as organ transplantation), death is when a once live body does not function anymore as an organism and consequently undergoes processes of decomposition (depending on its environment).

Definition and Overview of the Questions Anatomy is the use of the dead human body, or tissues taken from the human body, for the sake of scientific study and instruction. Typically, the subject of anatomy raises three sets of ethical questions (Table 1). The first is whether and to what extent antemortem autonomous wishes extend to the uses of the postmortem body. Whether the moral relationship between the person and the postmortem body is analogous to the relationship between the person and his or her separated body parts (e.g., an amputated limb) is a related inquiry. Another issue is the authority relatives and community members may claim over the dead body. The second set of questions is whether we have some moral duties of respect for human remains as such, even when posthumous interests and relatives’ claims do not pertain. What might such duties be? The last set of questions is directed at the possibility of coherent moral approaches to all uses of the human body, dead and alive. This inquiry will carry us much beyond the scope of anatomy. However, since it has been observed that Western moral and legal attitudes to the body are con­ spicuously irreconcilable with each other, any ethics of anatomy is also at risk of being at odds with some common­ place moral and legal practices related to the body. For example, suspicion of crime universally justifies postmortem dissection, even against the wishes of the family. Stranded survivors eat the flesh of their dead fellows in order to fend off starvation. On the other hand, harvesting organs for immediate life-saving trans­ plantation is almost never carried out against the wishes

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Human tissues Parts taken from the human body and used as such for anatomical purposes. A tissue may be kept alive under artificial conditions. Long dead Dead people whose personal memories, and typically also identities, are long forgotten. Permanent vegetative state (PVS) When a human body is alive, but permanently and irreversibly unconscious.

of the family. Live donation or selling of kidneys for anatomy is not allowed or promoted anywhere; yet eggs may be repeatedly donated and sold in the United States and the United Kingdom. In many places, neither the family nor the woman herself (by means of advance directives) may authorize discontinuation of life support of brain-dead pregnant women. May doctors carry out an experiment on the body of the brain-dead woman while she is maintained on life support (not risking the child)? May they remove a kidney for transplantation or research against her expressed wish, the way her life is artificially prolonged for the sake of her fetus? Is it possible to deliberate on the question of anatomical experiment without awareness of the questions of trans­ plantation and placement on life support? One may entertain indirect ethical considerations such as rule utilitarianism or contractual ethics, which takes into account antemortem desires of the patient or personal wishes of those who are alive (e.g., relatives) with regard to the dead, or speculation about the impact on the virtues of certain attitudes to the dead (e.g., ‘‘those who abuse the dead degrade themselves’’). But ethics cannot thrive on indirect considerations alone. People harbor wishes about their dead bodies following beliefs about the postmortem phase. Psychological reactions to and cultural conventions pertaining to the treatment of the dead are also influenced by our belief systems. Reactions and conventions are amenable to change; as a matter of fact, morals must reflect critically on atti­ tudes of repugnance, as was the case with vaccinations and transfusions. What rational beliefs may be held about the treatment of the dead?

Anatomy, Ethics of 117 Table 1 In a Nutshell: An Overview of Principles for an Ethics of Anatomy 1. Dignity: Human dignity does not allow the treatment of the dead human body as if it were a raw material or mere waste. Only salient uses in the benefit of the common good justify anatomy. The issues below address dignity as well. 2. Permission for the use of the dead is mandatory. The nature of permission or consent may vary depending on the circumstances and cultural norms. 3. Transparency: Since the history of anatomy is blighted by medical crimes and exploitation of the helpless, a special duty prevails upon society to enforce strict processes of transparency so as to verify, regarding every anatomical specimen, that: a. It does not originate in hidden crime, malpractice, or neglect. b. It is subjected to regulation by a public authority of issues of consent and of decent standards of privacy, storage, and usage (similar to GCP). 4. Feelings and values of the living: Family members may help clarify the wishes and values of the deceased; they might suffer terribly at seeing their dear ones maltreated. However, especially when there is a presumption that the deceased and the family do not share the same values, relations have no independent standing regarding the disposition of the body. 5. Solidarity: As anatomy is the art and science of the human in general, and especially where richer societies anatomize the poor, it is imperative that the benefit of medicine and anatomy be extended to all of humanity. People may not be asked to donate their bodies and body parts to anatomy unless they receive proper medical care. 6. Education: Attention should be given to the educational impact of anatomy, its modes of practice, and representation on medical students and on clinicians.

Whether the Dead Can Be Harmed at All The Epicurean Hypothesis That death is an end to something very substantial, meta­ physically as well as morally, is unquestionable. Less clear is what that something precisely is. One line of thinking, the roots of which are traceable to Epicurus, portrays death as complete and absolute termi­ nation. Within this framework the corpse is a mere nonsignificant leftover. The apparent moral implication of this approach is that any use of the dead body does not require consent of the person, since anything done to the corpse, even deliberate acts of shame, cannot be harmful to the person. Put in other words, according to the so-called Epicurean thesis, death does to the person at least one of three things: 1. It disconnects any moral relationship between the per­ son (even for those who believe in the immortality of the soul) and the postmortem body. If we continue to exist after death, this existence is absolutely unrelated to the corpse (the discontinuity thesis). 2. Death annihilates the person in such a total manner so as to render it impossible logically for any event what­ soever to be harmful to the person (the immunity through termination thesis). 3. Death also transforms a vulnerable entity, the living human body, into something that has no well-being and, therefore, is beyond benefit and harm as well. Our existence after death is only the existence of our corpse (the radical transformation thesis). As much as nobody can harm Sherlock Holmes, who is a fictional character, nobody can harm Arthur Conan Doyle, who was a real person, but now is dead. Undeniably, it is possible to exhume the bones of Arthur Conan Doyle, but not those of Sherlock Holmes, but this fact is irrelevant. In the same vein, saying of a cadaver,

‘‘this is Aunt Ethel,’’ is no evidence that the dead body of the late Aunt Ethel is Aunt Ethel, as much as saying of her sculpture ‘‘this is Aunt Ethel’’ is a convention of speech, not a metaphysical or moral proposition. So we must distinguish between the flexible ordinary language of identification and attribution (e.g., ‘‘this is his heart’’ in the x-ray photo or in the postmortem study) and morally valid identifications and attributions (e.g., he has a right to; this act harms him). Contemporary philosophers have propounded a few answers to the question of postmortem harm. One line of argumentation, propounded by Luper, seeks to show how it is possible to affect in the present someone who existed only in the past. In a second line of argumentation, Wilkinson points out interests that seemingly survive death, privacy, for one, thus explicating postmortem harm within the ordinary confines of causation – the harmful act and the harmed interest coexist simulta­ neously. Thirdly, Sperling (2008: 34ff.) has suggested that as much as ‘the human person’ is a cultural construct, posthumous harm is a social convention that needs no further validation. Lastly, one may reject the Epicurean theses altogether, or maintain that law and policy makers should also respect alternative metaphysical theories about life and death, for example, take into account the possible truths of tribal religions. This last position adds weight to a similar argument according to which the primary moral concern in the treatment of the dead is the feelings and values of the living – the closest of kin and the community. Theories of Posthumous Harm: Indirect Harm, Third Realm, and Surviving Interests Following Pitcher, Luper maintains that although back­ ward causality is paradoxical, and consequently the dead cannot be harmed directly, indirect harm to the dead is a

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meaningful concept. For example, ignoring Sarah’s wish (e.g., her will) is responsible for the true statement that when Sarah made her wish, this wish would not be fulfilled. Perhaps it is easier to conceptualize posthumous harm when we contemplate interests that are unrelated to the body and to death – dignity and privacy, for example. It may be argued that such interests deserve consideration posthumously similar to other human interests. Whether one projects retrospectively some notion of harm or projects prospectively interests that are detached from existing persons (or both), one has to come to terms with the fact that our perceptions and thoughts about the dead are rooted in psychology and culture more than in physical reality. Following Quine (and possibly Nagel and Popper as well), Silverstein maintains that as much as distant harm occurs outside the space a person occupies, posthumous harm occurs beyond the segment of time in which the person exists (e.g., 1937–98). Only experiential life materializes within the immediacy of the spatiotemporal existence of the person. Symbolic events, such as slander and posthumous harm, take place in what Popper refers to as the ‘third realm’ (the first is spatiotemporal reality and the second is subjective psychological experiences), in which human webs of meanings are weaved. Only from within this symbolic matrix does it make sense to say that ‘‘Elsa is the widow of Charles’’ in spite of the fact that once widowed, Charles does not exist anymore. In the same vein, the atemporal web of meaning allows us to say ‘‘Charles married Elsa’’ but not ‘‘Charles married his own widow.’’ Quine refers to this symbolic matrix as ‘‘co-existence in an eternal or timeless sense of the word.’’ In this timeless dimension, an offender, a victim, and a harm perpetuated co-exist. Alas, I do not see how a time-dependent concept such as harm may exist in a timeless dimension. Worse still, temporality is too strongly ingrained in the ethics of anatomy. If postmortem harm is beyond time, it is simply impossible to assert, as virtually every person and legal system do, that anatomy of a thousand-year-old mummy is less problematic than anatomy of a freshly dead body (see below on the ‘long dead’). Alternatively, as Hølm suggested, such an abstract harm as ‘timeless harm’ may count very little relative to the concrete benefits of anatomy. Sperling pushes aside the metaphysical question and addresses the problem of posthumous harm by means of cultural conventions and positive law. According to Sperling, the ‘‘Human Subject’’ is an ‘‘imaginative con­ struction,’’ similar to the ‘‘human person.’’ Whereas the latter does not survive death, the Human Subject is sus­ ceptible to harm that occurs during life, as well as before and after death. With all respect, I am not convinced. The ‘third realm,’ which embraces myriads of concepts, from

‘Charles’ widow’ to the ‘birth of Venus.’ is a cognitive dimension that enables intelligent humans to infuse meaning into their lives; it tells them nothing about the dead. Philosophers such as Silverstein and Sperling explain how the idea of harm to the dead could be intelligible, how it may be incorporated, at least pragma­ tically, in the social worlds of ‘symbolic interaction’; but they do not at all demonstrate that the dead can be harmed. Cultural conventions may make people behave and even feel and think as if the dead can be harmed, but this does not make it true. So, although it is indeed possible logically to confer rights on the dead or on works of art and practically on everything, Kramer points out that this does not mean that we should do so, or that the dead have natural rights or that they can suffer harm. One thing is the logical and conceptual possibility of drafting, enacting, and enforcing laws that take into account the interests of the dead (as well as other con­ cepts such as wishes of the deities). Another issue altogether is the prudential or contractual desirability of such laws and educational efforts. Neither task may substitute a sound answer to the question whether the dead are potential targets to harm. Rather, it makes much sense to seek answers to the question of harm and the metaphysical status of the dead as a first step toward constructing and amending social conventions, virtue theory, policies, and laws addressing dead persons and cadavers. Besides, it is naı¨ve to expect timeless conceptualization and imaginary constructions to solve substantial problems regarding posthumous harm. Suppose I wish to apply the Golden Rule to anatomy – ‘‘do not anatomize unless you consent to be anatomized yourself.’’ The maxim makes much sense until one realizes that anatomy is never performed on any ‘self.’ Although this formulation of the Golden Rule is a clear enough imperative deciding who may practice anatomy and who may not, it is far from having philosophical clarity. In my opinion, the question of harming the dead should focus on well-being, not on interests as such. Harm is an insult on well-being by means of frustration of interests. One cannot consider interests without con­ sideration of well-being. The metaphysically relevant fact to the ethical treatment of cadavers is that dead people are not loci of well-being. Posthumous interests seem like a smirk on the face of a Cheshire cat. Revisiting Luper’s and Wilkinson’s theses, we should say that disrespect for Sarah’s will makes it responsible for the truth that while alive, Sarah’s wishes will be frustrated at a time when she has no claim to well-being at all. Put in other words, it is true that Sarah’s well-being has never been touched by disrespect for her will. She has not been harmed, not even indirectly, and not in any possible construction of existence in time or beyond it. Besides,

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direct or indirect, I do not see how temporal reversal of the relationship between cause and effect is metaphysi­ cally possible. Suppose a person never thinks much about the fate of his dead body; suppose that, had he been asked, he would have shrugged his shoulders and said, ‘‘well, I will be buried like my father and grandfather.’’ But this person is not buried. He meets a fate that he never thought possible. His body is snatched out from the morgue and mutilated in a satanic ritual. Hence, from the day of his birth until his death, it was true about this person that his body would be defamed. The conclusion according to Luper would be that either throughout his entire life the person suffered the indirect harm of postmortem humilia­ tion or, that because he never had conscious thoughts about the treatment of his remains, he is not harmed when it happened to his dead body. Neither option seems appealing. It is also true that although she had died before her son, the mother of this victim of Satanism had a son whose corpse would be abused. So, the mother, throughout her life, even before the concep­ tion of her son, suffered the indirect harm of shame. In my view, this is all absurd. Reverse harm – direct or indirect – is an oxymoron. It is particularly incompatible with a philosophy of agency and personal responsibility, according to which agents are responsible for harms and benefits they cause (or contribute to their causation, for example, by means of inaction). The notion of responsi­ bility for truth but not responsibility for direct harm is known only within the very specific discourse cited on posthumous harm. Without fuller elaboration and in the absence of extension to other contexts, its appeal is rather tenuous.

Moral Duties with No Corresponding Interests Bipolar and Unipolar Duties Since the dead have no well-being, we may conclude that maltreatment of the dead cannot harm them. They can neither be used nor abused. Yet, this does not mean that no moral claims and restrictions with regard to the dead apply. Rather, it only tells us that we had better not think about the moral treatment of the dead in the same terms we apply to the moral treatment of the living – interests, respect for personal autonomy, natural rights, and the like. It means that one may act wrongfully with regard to the dead, and, yet, this action may harm neither the dead person nor anybody else. This could be quite con­ fusing, since the very same value, fiduciary, for example, may be invoked in two substantially different contexts: with a recipient of action and without. I can make a promise to another person, but also to myself. The promise may benefit me, the promisee, a third party, or

nobody at all. If promise making bears its own moral value, it extends to all of these combinations. The death of the recipient of action may or may not dissolve a moral duty (the action) owed to him or her by the agent. For example, I may promise my grandmother to take care of her personal papers. Her death dissolves any interests she might have in those papers; but it does not dissolve my duty of fiduciary. Rather, it might bolster it. If fiduciary, veracity, respect, and other sincere inten­ tional stances and behaviors were reducible morally to questions of harm, these values would lose any indepen­ dent meaning of their own. Among other things, such a development would annihilate the moral agent as a pri­ mary focus of ethics, as only recipient-centered events (harms and benefits) would count morally. Such ethics is possible (e.g., hedonist utilitarianism), yet it would be very narrow in scope and it is not acceptable by most ethicists and moral systems. Especially in liberal societies, the absence of a victim to immoral behavior places the behavior in question beyond the scope of law and law enforcement. Grave considerations exist against the interference of the police with my handling of my late grandmother’s papers. However, although liberal values protect the private domain from interference, they do not render victimless actions morally neutral. On the contrary, liberalism entrusts private issues solely in the moral judgment and strength of the will of the responsible persons. Bipolar duties are very difficult to override, even for the sake of very lofty moral causes, whereas unipolar duties must be pushed aside for important moral causes, especially when vital interests of other people are at stake. At this stage it may be said that a prima facie moral duty exists for the wishes of the person with regard to the treatment of his or her postmortem remains. In actuality most people do not leave behind specific instructions. They may be inferred from the horizons of mutual expec­ tations shared between the person and his or her society. A Jew may be buried, a Hindu burned, and a Benthamian utilitarian anatomized to the benefit of the public. So, although ‘rest in peace’ is often mentioned as an ideal state of the dead, ‘disturbance’ of the dead is a meaningful act for society, not for the dead themselves. Indeed, the longer the time passed since death, say hun­ dreds or thousands of years, the less disturbance is heard in relation to human remains. The Problem of the ‘Long Dead’ and the Status of the Family The ‘long dead’ are those who died very many years ago. In most countries, human bones that are a few centuries old are considered archeological items. This has brought protest from ethnic minorities and religious groups, typi­ cally societies within whose confines the bones had been

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found. Interestingly, similar objections have not been raised against legal systems that allow or mandate exhu­ mation and pulverization of bones a few years after burial (in order to save burial land). The Supreme Court of the Federal Republic of Germany ruled that the dignity of the dead ‘‘fades’’ with time up to a point of nonsignificance when no live memories of them remain. So it seems, according to this interpretation, the ‘dignity’ in question is not a property of the dead, but the feelings and attitudes of the living – those who have memories of the dead and those whose actions might offend the dignity in question. Framing the moral treatment of the dead in terms of agent-centered ethics, rather than recipient-centered ethics, may create a difference regarding the long dead (those who died very many years ago). One may argue that the values of solidarity and fiduciary apply more to those who lived in our vicinity – geographically as well temporarily. Because the term long dead is not clearly defined, some cases are hard to resolve, though. Would it make sense today, or 50 or 100 years from now, that anatomical specimens taken from victims of the Nazis be eligible for use? Even if no personal memories of these victims remain, the collective memory of the holocaust is considered a cultural heritage. Many years before the rise of Nazism, Prussia, Napoleonic France, and other countries had legalized the anatomy of executed criminals and unclaimed poor. This was profoundly offensive in the eyes of virtually every dying vagabond. A few years ago, historian Alice Dreger launched a campaign to remove the skeleton of Charles Byrne, a.k.a. ‘the Irish Giant,’ from The Hunterian Collection in London. In 1783, Hunter bribed Bryne’s undertakers, whom the Giant had paid for securing burial far away from the reach of the anatomists. It is hard to imagine a more blatant disrespect by anatomists for a person’s expli­ cit wishes about his very own body. A nation that cherishes the tombs of its medieval kings and that derives so much constitutional authority from the thirteenth-cen­ tury Magna Carta cannot easily dismiss the will of the Irish Giant as obsolete. Personal and cultural sensitivity to proper treatment of the dead is so high as to render burial expenses a motiva­ tion behind the selling of kidneys for transplantation by live family members. It may be stated, therefore, that except for the sake of saving life, the feelings and attitudes of the family should be respected. Typically, a holistic approach would regard the values of the deceased and those of his or her family and community as binding morally. However, when a conflict appears between the family and the presumed values of the dead person or among close family members, no one person or group of people has a moral claim to dominance over the dead body.

Many laws acknowledge the right or the interests of relatives, or closest kin regarding the use and disposition of the dead body. However, family members may fail to agree with each other. Worse still, the closet kin may try to promote values opposite those of the deceased – over­ rule on religious grounds a wish to donate the body to anatomy. For this reason, the role of the living in decision making over the dead is morally very limited. Whereas most claims for the ‘protection’ of the long dead have been made in the name of respect for the cultures and feelings of live people, a stronger position would not accept the secular and so-called Western assumption that death is the end of the substantial rela­ tionship between person (or soul) and the body. Hence Mulgan supports the idea of equal considerations for alternative metaphysics of death, the belief in ancestral worship and the presence of ghosts, for example. If we take the stronger position seriously, we will have to reckon with every world view about the dead (e.g., religion of ancient Egypt) as a metaphysical possibility for every dead, regardless of its cultural background. For if the ancient Egyptians had it right metaphysically, they had it right with regard to everybody. Such an outcome will be absurd and full of contradictions. The inevitable conclusion is that the moral treatment of the dead should be based on some universal rather than particular moral values.

Human Dignity and the Treatment of the Dead Body and Dismembered Body Parts Human Dignity in Ethics and Anthropology In this context, human dignity is defined as a special moral approach to humans, which is motivated only by their humanness. Endowment of personal names and adornment of the body with clothes or other decorations are two universals (i.e., found in virtually every human culture) that are strongly associated in ethics and law with the notion of human dignity. Mentally-ill children and profoundly mentally-ill adults are not merely fed and protected bio­ logically, but they are also referred to by personal names, not serial numbers, and are dressed with clothes, even when they are not capable of embarrassment at nudity. Interpretations and standards of human dignity vary considerably. One very old version grants on the basis of this dignity a license to use animals and natural resources. However, one is entitled to reject the domination theorem and still adhere to an ethics of human dignity. Rather, especially with regard to the dead, the theme of dignity as an attitude differentiating humans from animals is evi­ dent. Not a single known human society throws away human cadavers; all endorse the trashing of animal carcasses.

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Cultural practices vary considerably, but each society sets its own limits and requirements on the disposition of the dead. One may find people who place their dead on special mounds for wild birds to eat; even cannibalism of the dead is known in certain societies. Perhaps, when eticly observed (from outside the cultural context), such practices serve certain functions, but emicly (when read from inside the culture), each society proffers its own explanations, contextualizing habit and law in mythology and religion, sometimes in terms of repulsion and horrific taboos. Deliberate humiliation of the dead is common as well, but it is directed at people perceived specifically as ‘others,’ such as enemies and criminals, and is not acceptable as an attitude toward fellow humans. So far, two points on human dignity have been argued. First, the moral requirement to grant humans special treatment merely on the grounds of their humanness and regardless of interests and wishes belongs to an ethics of human dignity. Second, some such dignity-related practices are found universally, among which is granting each corpse a funeral or a mode of dignified disposal, while never considering cadavers as mere garbage or raw material. Historical Background to the Ethics of Anatomy The art and practice of anatomy have developed within the Christian West. Christian interest in the soul at the expense of the body, the cult of relics, the Renaissance of figurative and naturalistic art, and other factors were operative behind the gradual entry of anatomy into med­ ical practice and high culture. Since the fifteenth century, the value and justification of anatomy have not been doubted. Once a body was handed down to anatomy, no limits were set on research and instruction. Designation of cadavers to anatomy was the only question at stake. Victims of capital punishment and unclaimed anonymous bodies of vagabonds were the natural targets. But supply never met demand. The most famous anatomists did not turn away from grave robbing of decent citizens. As a matter of fact, body snatching is probably the only bioethical crime to which offending doctors confessed with pride. They even left behind published advice to followers, as did Vesalius himself. Teeth extracted from stolen bodies were sold in the market for dental trans­ plants. One cannot help observing the cultural gap between the immense awe world cultures express toward the dead and the profound sense of violation produced by anatomy on the one hand and the frivolity in such matters that is found at the heart of Western culture – preenlightenment Christian Europe and post-enlightenment secularism – on the other hand. In the United Kingdom, selection of bodies to anatomy became regulated only following exposure of murders perpetuated for the sake of educational dissections, and not due to public concerns

about the moral treatment of the dead. Any globalized bioethics should come to terms with this cultural discre­ pancy regarding the use of the dead. It may be observed as well that two implicit maxims bridge over major human cultures. The first is a special abhorrence for the consumption of human remains, especially as food. The second is tolerance of devotional and demon­ strative uses, even if not in the medical context. Judaism is quite stringent in its prohibitions on using the dead and even on being in physical contact and proximity with them. A story from the Talmud is a good example. Jewish law posits the burial of the dead, along with every other body part and tissue, as top-priority personal and communal duties. However, as a matter of fact, the Talmud recounts how a famous rabbi would show bereaved mourners a finger of his tenth son (he already had lost the first nine) in order to comfort them. Perhaps the rabbi could have conveyed his message by other means. Yet, the direct presence of a human tissue bears a powerful, even unique, psycho-spiritual impact. It is the effect Barthes referred to as tuche´, which in the case of anatomy produces a reaction of ‘the sublime’ – transcendental awe through confronta­ tion with nature. The theory of the sublime was first developed by Burke in the eighteenth century. As Nye explains, the sublime wavers between ‘‘terror of awe’’ and ‘‘pleasing astonishment,’’ typically at natural phenomena. ‘‘The sublime is identifiable by the repetition and the universality of the effect.’’ In anatomy, the subjective and creative person of culture meets his or her own self as a nonpersonal and lifeless piece of nature. Recent trends in medical education tap into this edifi­ catory resource beyond the instrumental use of anatomy for the acquisition of medical knowledge and skills. Dissection of cadavers is one of the earliest hands-on experiences in medical schools. The confrontation with death and the dead is an opportunity for personal growth as medical professionals.

Communitarian and Liberal Conceptions of Human Dignity and Anatomy When issues of human dignity collide with other moral values, especially with interests and wishes of people, we find a divide between the communitarian and the liberal schools. In a landmark case, the German Supreme Court outlawed peep shows on the grounds of violation of human dignity, notwithstanding the free choice of the participants. According to this communitarian approach, at least in the public domain human dignity (or some aspects thereof) has the power to prevail over autonomous choices of people. On the other hand, liberals believe that in the absence of harm to others, autonomous choices of the person prevail over other moral values. Liberals do not tend to invoke the value of human dignity, but it may be said that in a liberal

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framework of thinking, human dignity is best served by means of respect for personal autonomy. This debate between the communitarians and the lib­ erals may be extended to anatomy as well. In the name of human dignity, the former recognizes moral and legal limits on freely chosen uses of the dead body, whereas the latter does not. Indeed, in 2002 the High Bavarian Court banned certain exhibits from the popular anatomy show ‘Body Worlds’ for allegedly degrading humans to the level of the beast. So-called liberals might contend at two levels: first, they may not find the joint anatomization of a human and a beast offensive to human dignity; second, notwithstanding the question whether such repre­ sentation violates human dignity or not, they may find it immoral to interfere with a conscientious personal choice to be anatomized in such a way. Rather, many would argue that suppression of personal choices, especially about one’s own body, is offensive to human dignity. Depersonated Bodies and Body Parts and the ‘Most Reasonable Candidate’ Theorem A human person is always a living, individual spatial extension that is typically impersonated. The word ‘impersonated’ is employed in parallel to the wellknown concept ‘embodied.’ The person is embodied; the body is impersonated. The one-to-one relationship of embodiment is widely accepted – one person is never embodied in more than one body. However, some bodies may not be considered impersonated (e.g., the irreversible comatose), whereas others may be impersonated in a fragmentary manner (e.g., multiple personality, Parfit­ like theories of the person) or not impersonated at all (as some ethicists regard embryos and irreversibly coma­ tose people). Whatever theory of the person one follows, ethics and law construe a ‘most reasonable candidate’ for the relevant agency – the competent person representing the individual human being. An ordinary human being is one person in one body whose voice represents the embo­ died person and the impersonated body. This is so obvious as to render the term ‘most reasonable candidate’ trivial. It is like saying that Barack Obama is the most reasonable candidate for representing Barack Obama. Things get more complicated when the person is men­ tally ill, under the influence of drugs, or dead. Even if good philosophical evidence is brought in support of the conclusion that the mentally-ill person and the healthy person are not the same person at all, it would still be very difficult to argue that any other voice should be respected as a more authentic representative of the human individual, the organism which is the patient in question. So, we tend to respect the living will of a patient, because the agent signing that will is the most reasonable candidate for representing the now profoundly demented person.

Similarly, we may regard the premortem person as the most reasonable representative of the postmortem body and the dismembered body part. Alas, the analogy from representing the living organism to representing the dead body or body parts is shaky on its other end – not on the question of agency but on the problem of the interests represented. In the absence of well-being of its own, there is nothing to defend or promote on behalf of the dead body or severed body part. This difference is borne out again by the problem of harvesting organs for transplantation. Harvesting hearts and livers from irreversibly comatose and retarded people is not permissible anywhere; few ethicists endorse such actions, and many would regard it as plain cannibalistic murder. Harvesting organs from the dead is much more defensible, even when carried out against the explicit wishes of the person. The comatose are living human organisms with well-being of their own; the dead are not. Some authors imply that dead bodies are mere objects. Resnick writes, ‘‘Bodies that do not contain persons such as anencephalic newborns, PVS and cadavers, could be com­ modified without violating the dignity and worth of persons.’’ Would Resnick endorse the feeding of a dog with the cadaver of a baby who has no relatives? I presume not. In sum, dead bodies have some moral status because they are both human and ‘morally sociable’ (see Figure 1). In synthesis, the dead person and the dismembered body part have no interests and cannot be harmed. The living may bear moral duties concerning the treatment of dead bodies and dismembered body parts. A fundamental notion of human dignity forbids the treatment of humans and human material as mere garbage or raw material. This and other ethical and practical considerations make it morally desirable that permission be asked before the dead be put into use. Indeed, permission is the element differentiating a human-relevant object and a humanirrelevant object, such as wild animals, trees, and anything that is not ‘property’ (property is a human-relevant con­ cept). In this sense, the ‘most reasonable candidate’ and ‘property’ are relevant conceptual instruments. Dickenson observes that although people do not express interests in the use, possession, commercialization, and other elements belonging to the conceptual bundle known as property, range over nonconsensual use is aimed at ‘unauthorized taking’ rather than the ultimate use. Nonetheless, informed consent by a person to treatment of his or her body and informed consent to the use of postmortem remains are completely different kinds of permissions. In sum, dead bodies have some moral status because they are both human and ‘morally sociable’ (see Figure 1). Dead Bodies and Human Tissues as Property Authors debate whether the very idea of ‘property’ has a unified meaning, or, perhaps, whether it is a bundle of

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Wishes / reactions

Wellbeing

Dignity

Value to others

Moral sociability

Conscious humans

Yes (many are autonomous)

Yes

Yes

Yes, but this is not relevant to moral status

Yes

Permanent vegetative state (PVS) Cadavers

Most reasonable candidate theorem

Yes*

Yes

No

Yes

See section “The Problem of the ‘Long Dead’ and the Status of the Family”

Yes

Embryos Animals

Rudimentary In a variety of degrees No

Yes Yes

Yes No

Yes Sometimes

No No

No

No

Sometimes

Must be removed because of health-risks

Objects / carcasses

Yes

* Controversies about the meaning of the “good” of such people. Figure 1 An overview of moral status.

haphazardly associated concepts such as the right to use and a right to sell. This issue becomes even more intricate when we try to behold the body – dead or alive – as property. However, many contemporary authors believe that the complex problems raised by biotechnology and bio-banking are best addressed through the body as prop­ erty paradigm, even though the concepts constituting the body as property and the concepts constituting inanimate objects as property should not overlap. In common law and other legal systems, amputated body parts bear the status of waste or raw material – res nullius (nobody’s item) or res derelictae (abandoned). This paradigm has been found incompatible with human dig­ nity. Article 22 of the Council of Europe’s Convention on Human Rights and Biomedicine requires informed consent to any use of ‘‘removed body parts.’’ In certain situations, much knowledge and work are invested in processing human tissues so as to render the hospital or laboratory reasonable candidates as well. In common law, when a tissue ‘‘acquires some attributes differentiating it from a mere corpse’’ it becomes prop­ erty, and the property of its ‘‘lawful possessor.’’ Many altruistic donors, who actually have no choice but either donation or refusal of use, are not aware of the ‘down­ stream’ for-profit commodification of the donations by healthcare providers and the industry. They are also unaware of the wide variety of potential uses, such as by the cosmetics industry. Two issues are at the heart of the matter. Since the idea that ‘there is no property in the dead’ is com­ monplace, the first conceptual challenge is the

transition from no property to a set of precious com­ modities, even within a ‘dignified’ and restricted framework of commodification. The second is the tension between the paradigm of consent and a para­ digm of gift giving. The former entails a continuous duty to receive consent to any use in the future; the latter entails unconditional surrender. Hybrid schemes have also been propounded. If we wish to take lessons from anthropological theories of the gift, we may observe that, indeed, on the one hand, gift giving is a complete and uncondi­ tional surrender of the object. Yet, on the other hand, the giver expects reciprocity in kind, and certain norms of respect pertain with regard to the gift itself (e.g., not to trash it). So, one may expect that in a solidarity-based health care, the gifting of tissue is broadly reciprocated by expectations for medical help in times of need. A society that offers health care only by means of for-profit services has little to say against the commercialization of the body, espe­ cially for the sake of purchasing care. In sum, it has been argued that on the grounds of human dignity, but not respect for autonomy, anatomy be stipu­ lated on consent or permission; that the permission may also be of the strongest kind – unconditional altruistic gift giving; that prima facie, the most reasonable candidate, the default authority to grant such permission, is the person from whom the body part was removed or his or her representative; that human dignity may set limits on cer­ tain uses of the body parts, informed consent and even request notwithstanding; and that certain forms of

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commodification are not necessarily immoral or disempowering of persons. Rather, the very notion of altruistic gift giving is explicable only in terms of property. Moreover, the act of surrender actually ratifies symboli­ cally the natural fact that the dead body and the dead tissue are neither a person (i.e., a subject) nor a personal property (i.e., an object) of anybody. In the absence of any substantial connection between a person and the body, especially after the act of gifting, only the values of solidarity and of respect for human dignity become relevant.

Between Consent That Is Derived from Respect for Autonomy and Symbolic Consent That Is Derived from Respect for Dignity Only It is extremely difficult to overturn a freely made choice of the person regarding the uses of his or her own body. This is why, despite widespread moral objections to the prac­ tices themselves, many do not think it is moral to prohibit peep shows and prostitution. But when limits are set on the uses of the dead body or body part, or when a body part is used for the medical benefit of the needy, no coercion of the person is involved. Although the personal wishes of the person are not respected, no limits are set on him or her. This is because the body and body part in question are not impersonated any more. In other words, the individual and embodied physical extension of the person is not subjected to external control when anatomy is subjected to restric­ tions. So, the communitarians seem to have a stronger case in support of prohibitions of ‘undignified’ uses of the dead body and dismembered body parts, relative to setting restrictions on the impersonated body. This is precisely the legal reality in most countries. Wills on property are legally binding; wills addressing the disposal of the body are usually not. Donations to anat­ omy and other purposes are respected as permissions, not as requests. Relatives who inherit the estate have a limited say regarding the disposal of the dead person. Harris observes, ‘‘the supposed body-ownership con­ ception is the product of the bodily-use freedom principle and other relevant values,’’ which are mainly related to dignity. So, human dignity circumscribes certain limits on the possible uses of the body, especially the dead body and dismembered body parts. One more way to behold the argument is this: It is widely held that people enjoy a negative right of liberty (to be left alone) when they make private choices that are outrageous in the eyes of public decency. However, as the dead are incapable of action, the right to be left alone is useless to them. Since there is no precedent for a claim right (a demand from others to act) for action that is morally reprehensible in the eyes of the actors, a person cannot create a posthumous obligation binding people who cannot endorse it morally.

Symbolic consent may serve important functions in the protection of human dignity and quality of science alike. Lack of regulation and of the oversight provided by the institution of formal consent promotes adherence to professional standards (similar to the notion of good clin­ ical practice in research on humans) that include efficient and transparent management, registration of bodies and organs, and quality control. Human remains should not be scattered chaotically in dingy storage places or be sub­ jected to amateurish experimentations. Unneeded human remains and human remains that cannot be treated by professional standards should be disposed of respectably (e.g., burial, cremation). It is impossible to apply the same standards of con­ sent to a fresh body of a known person and to a mummy just dug out by archeologists. However, human remains should not be appropriated privately and without oversight. A person stumbling on human bones in the open field may be expected to act at least as if he had found a rare prehistoric statute. Indeed, human bones are scattered all over the globe, whereas prehistoric art is unique and beautiful. But this is pre­ cisely the point. Human remains are not commodities whose value decreases as supply increases. Neither aesthetic nor scientific or commercial value renders human remains valuable, but their very human nature.

Is It Rational to Care About the Fate of My Dead Body? I will be dismayed if someone tells me that after my death my body will not be claimed by my family and friends. This is a rational reaction, not because it is rational to worry about one’s own posthumous interests, but because it is rational to worry about the state of the world. Concern about the future of my dead body is similar to concern for the distant poor and the protection of wild species. Neither is related to personal well-being; both are central to personal moral identity and the kind of world I wish to live in and to leave behind for future generations. There is one difference, though. In opposition to wild species and the distant poor, I stand in a special relation­ ship with the object of concern. While alive I exercise near absolute moral authority over my body; I control it directly as well. When I worry that rats might gnaw at my neglected cadaver, I am now this flesh and bone. This is why the most reasonable candidate theorem fits postmor­ tem wishes about the body. Whereas there is no natural representative of ‘the distant poor’ and ‘wild species,’ every person is the most reasonable candidate for representing his or her postperson stages. It may be said that stretching important personal desires such as use of property and body to the

Anatomy, Ethics of 125

postmortem period is rational, especially during the future immediate to death, when such extension appears integral to one’s life plans, and continuation of its trun­ cated course. Such desires are salient. They are part of a rational life plan and of a vision of personal well-being and of a culturally constructed moral status of the dead. All the while, neither frustration nor satisfaction of such desires bears on the well-being of the person.

Non-Epicurean Approach to the Vulnerability of the Dead and Anatomy So far, the line of argumentation is traceable to the supposition that the dead cannot be harmed. However, even those who are convinced that it is possible to harm the dead may accept the ethical conclusions propounded in this article. As it seems reasonable to assume that nobody thinks it is possible to coerce the dead, whatever harm done to the dead, it does not involve the noxious element of enforcing on the body of a conscious person something that is against his or her wish. Besides, even if morally binding posthumous interests exist, they cannot include interests of well-being of the dead body. So, posthumous harm cannot contain some of the most intolerable elements of personal harm – suppression of personal freedom and assault on basic human needs. A non-Epicurean may also endorse some or all of the privileges of anatomy on the grounds of its con­ tribution to medicine, science, and education and on the presumption that the harm anatomy might cause is light. One may even contend that the harm to the dead is so shadowy so as to allow practically every mean­ ingful use of cadavers and body parts. It may even be argued that the dead have lower moral status than live animals, which are organisms with well-being of their own. So, it might be preferable to perform an experi­ ment on human cadavers than to carry out a scientifically equivalent experiment on a sentient ani­ mal. Thus we arrive at a point where non-Epicurean approaches to the vulnerability of the dead do not differ much from the Epicurean. In order to be relevant to ethics, the concept of harm to the dead needs con­ tent and contextualization. Since nobody maintains that posthumous interests bear the same moral power as interests of the living, mere affirmation that posthu­ mous interests exist does not help much in balancing these interests against others, such as the common good, and especially the medical care of the needy. The non-Epicurean must shoulder the burden of expli­ cating the moral status of posthumous interests relative to other interests and values.

An Outline for Implementation of Human Solidarity in Anatomy Beyond a few universal elements, human dignity is construed locally according to cultural values. However, in the era of globalization, human cadavers are trafficked all over the globe. Whereas in the past anatomists would wait for itinerant paupers to die within the confines of the community, today, indigent and helpless people are shipped for anatomy after their death. This creates tensions between local values and the forces of globalization. An absolute power of ownership and restrictive powers (e.g., patent and copyrights) in processed human material may be incompatible with the values of human solidarity and within the framework of which anatomy as a panhuman science has been incorporated into civilization. An appealing model for common trust in human tissues has been developed for the collection and storage of umbilical cord blood and tissue banking. It may cover other anat­ omy-related practices along with modifications of laws on property and intellectual property. It is also argued that doctors and scientists should not solicit anatomical donations from people (e.g., those who have rare anatomical features) without taking some responsibility for the donor’s health care.

The Ethos of Anatomy and Medical Education This last section goes beyond questions of duty and permissibility in order to survey a few observations on the implicit ethos of contemporary anatomy and its moral dimensions. Whereas until the twentieth century ‘death’ was behol­ den as a dimension of human existence in art and in folklore, contemporary anatomy limits its representations to clinical, depersonalized images. For example, in the past, real skulls were used as reminders of life’s transience (memento mori), parents would pose with their dead chil­ dren in front of professional photographers, and medical students would create tableaux featuring cadavers from their anatomy labs. The dead had stories to tell; often the story gave the anatomical object its added value, such as a skull of ‘‘a man who died of a broken heart’’ I have found in one anatomy museum. The famous scene in which Hamlet confronts the unearthed skull of Yorick is inconceivable as a daily experience of modern life. Contemporary sensibilities do not grant much repre­ sentational space to the dead. Anatomy labs underscore direct and unadorned representation of biological aspects of the body, which are detached from the lived person in

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his or her cultural contexts. This is enhanced by respect for privacy. In recent years, awareness is growing of the implied, even nonintentional messages found in clinical anatomy and pathology (e.g., conventions of showing medical photos in clinical journals). For example, the detached, deperso­ nalized, and cold clinical style might draw clinicians away from a holistic and integrative humane practice. Pressing needs to recruit donors and increased integra­ tion of human values and clinical experience in medical education at all of its stages have led to novel practices such as ‘thank you’ ceremonies conducted by freshmen medical students in respect of family members and fare­ well ceremonies in which students inter the remains of their anatomy class and pay respect to the persons who had donated them. In some schools, cadavers for anatomy are referred to as ‘first patients.’

See also: Biobanks; Death, Definition Of; Death, Medical Aspects Of; Death, Social Attitudes Toward; Research Governance.

Further Reading Barilan YM (2009) From Imago Dei in the Jewish-Christian traditions to human dignity in contemporary Jewish law and the laws of Israel. Kennedy Institute of Ethics Journal 19: 231–259. Campbell AV, McLean SAM, Gutridge K, and Harper H (2008) Human tissue legislation: Listening to the professionals. Journal of Medical Ethics 34: 104–108. Carlino A (1999) The Books of the Body: Anatomical Ritual and Renaissance Learning. Chicago: University of Chicago Press. Fischer JM (ed.) (1993) The Metaphysics of Death. Stanford, CA: Stanford University Press. Harris J (2002) Law and regulation of retained organs: The ethical issues. Legal Studies 22: 527–549. Harris JW (1996) Who owns my body? Oxford Journal of Legal Studies 16: 55–84. Hershenov D (2005) Do dead bodies pose a problem for biological approaches to personal identity? Mind 114: 31–58. Iserson KV (2001) Death to Dust: What Happens to Dead Bodies?, 2nd edn. Tucson, AZ: Galen Press. Jones DJ (2000) Speaking for the Dead: Cadavers in Biology and Medicine. Abingdon, UK: Ashgate. Kemp M and Wallace M (2000) Spectacular Bodies: The Art and Science of the Human Body from Leonardo to Now. London: Hayward Gallery. Mason JK and Laurie GT (2001) Consent or property? Dealing with the body and its parts in the shadow of Bristol and Alder Hey. Modern Law Review 64: 710–729.

Nelkin LB and Andreas LB (1998) Do the dead have interests: Policy issues for research after life. American Journal of Law and Medicine 24: 261–291. Nwabueze RN (2007) Biotechnology and the Challenge of Property: Property Rights in Dead Bodies, Body Parts, and Genetic Information. Aldershot, UK: Ashgate. Price D (2003) From Cosmas and Damian to Van Velzen: The human tissue saga continues. Medical Law Review 11: 1–47. Resnick D (1998) The commodification of human reproductive materials. Journal of Medical Ethics 24: 288–293. Richardson R (2000) Death Dissection and the Destitute, 2nd edn. Chicago: Chicago University Press. Roach M (2004) Stiff: The Curious Lives of Human Cadavers. New York: Norton. Sappol M (2002) A Traffic of Dead Bodies: Anatomy and Embodied Social Identity in Nineteenth Century America. Princeton: Princeton University Press. Steiner P (2008) Beyond the frontier of the skin: Blood, organs, altruism and the market. Socio-Economic Review 6: 365–378. Sugg R (2007) Murder After Death: Literature and Anatomy in Early Modern England. Ithaca: Cornell University Press. Vorobej M (1998) Past desires. Philosophical Studies 90: 305–318. Warren J (2004) Facing Death: Epicurus and His Critics. Oxford: Oxford University Press. Weeks SE, Harris EE, and Kinzey WG (1995) Human gross anatomy: A crucial time to encourage respect and compassion in students. Clinical Anatomy 8: 69–79. Winkelmann A and Gu¨ldner FH (2004) Cadavers as teachers, the dissecting room experience in Thailand. British Medical Journal 329: 1455–1457. Working Group on Human Remains in Collections (2003) Recommendation on the treatment of human remains in collections, museums and public places. Deutsches A¨ rzetblatt (German Medical Journal) C1432–1536.

Relevant Websites http://www.aemhsm.net/ressources/actus/Recommendations%20 on %20the%20treatment%20of%20human%20remains% 20in%20collections.pdf (accessed November 2009).

Biographical Sketch Dr. Barilan is a senior physician (internal medicine) and senior lecturer at Tel Aviv University and faculty at the Erasmus Mundus Master of Bioethics. His research interests include the meeting points of applied ethics and socio-cultural history (especially Jewish and European) as well as fundamental issues in ethical theory and moral psychology. He has participated in public ethics committees in Israel (late abortion, palliative care, medical education) and the EU (bio-informatics). His back­ ground education includes rabbinic academies and the European Master of Bioethics. He has practiced medicine in a community hospital close to the Israeli-Palestinian division line.

Animal Research I A S Olsson, Universidade do Porto, Porto, Portugal P Sandøe, University of Copenhagen, Frederiksberg, Denmark ª 2012 Elsevier Inc. All rights reserved.

Introduction Animals have played a significant role in scientific research since the Renaissance at least, when the experimental approach became the primary way of understanding biology. By studying anatomy with car­ casses and physiology with living animals, scientists learned about the structure and function of the bodies of organisms. The evolutionary proximity, and anatomi­ cal and physiological similarity, of humans and other mammals permits nonhuman animals to be used to model human processes. Relying on this similarity in 1628, William Harvey used his observations of animals of various species to draw general conclusions about the role of the heart in blood circulation: In the first place, then, when the chest of a living animal is laid open and the capsule that immediately surrounds the heart is slit up or removed, the organ is seen now to move, now to be at rest; there is a time when it moves, and a time when it is motionless. . . . . We are, therefore, authorized to conclude that the heart, at the moment of its action, is at once constricted on all sides, rendered thicker in its parietes and smaller in its ventricles, and so made apt to project or expel its charge of blood. (Harvey, 1628)

It is difficult to imagine how else this knowledge could have been acquired by Harvey at the time. Today, scien­ tists use advanced imaging technologies to look inside bodies, organs, and even cells, but animals continue to play an important role in many areas of research. In some of this research, such as veterinary and agricultural inves­ tigations, animals are studied in their own right, in order to learn more about their biology in health and disease. Often, animals are studied with a different aim, however. In fundamental research, they are studied to understand general biological processes, and in biomedical research, animals are used as models of humans and human dis­ orders. In the biomedical field, ethical and practical constraints oblige researchers to use animals instead of human subjects in studies requiring the full complexity of a living organism. Two factors help to explain why animals rather than humans have been used in studies requiring intact living organisms over the last 100 or so years. The first is that there are limits to the use of human subjects in research, and in particular, there is a requirement to guarantee the safety of humans in medical practice and research where

possible. The Helsinki Declaration (an international agreement regulating research on human subjects) demands that physicians ‘‘abstain from engaging in research projects involving human subjects unless they are confident that the risks involved have been adequately assessed and can be satisfactorily managed’’ (World Medical Association, 2000). The information used to assess and manage risks is largely generated in studies using animals. In a pronouncement on biomedical research ethics, the Vatican makes this strategy explicit: We want to reaffirm the need to do sufficient experimen­ tation on animals prior to the clinical experimental phase (the application on human beings) that will enable researchers to acquire advance knowledge of the possible harm and risks that this experimentation could have in order to guarantee the safety of the human subjects involved. (Pontifical Academy for Life, 2003)

One factor in experimental animal use, then, is human safety. The second key factor is increasing care over standardization and experimental design. In an effort to separate the effect being studied from confounding effects, researchers generally experiment under standar­ dized conditions. This is achieved in animal studies by selecting animals of the same strain (ideally, even inbred to extremely high levels of genetic similarity), sex and age, housing them in standard conditions, and feeding them the same diet. Of course, such standardization would not be feasible in studies using human subjects. These drivers of animal use in research are often tempered by ethical considerations. Public opposition to research on animals, such as the antivivisection move­ ment, dates back almost as far as the research itself. Considering that Harvey’s observations of the beating hearts of living animals were made more than two cen­ turies before anesthesia arrived, it is not surprising that some came to see these and other studies using animals as shocking. While accounts of critical voices among Harvey’s contemporaries exist, the first organized animal lobby appeared in the UK in the early nineteenth century. Soon similar initiatives emerged in other countries. Writing his seminal work on experimental methodol­ ogy in medicine, the nineteenth-century French physiologist Claude Bernard was well aware of this resis­ tance, but he did not regard it as something to which he, as a scientist, needed to devote much thought:

127

128 Animal Research A physiologist is not a man of fashion, he is a man of science, absorbed by the scientific idea which he pursues: he no longer hears the cry of animals, he no longer sees the blood that flows, he sees only his idea and perceives only organisms concealing problems which he intends to solve. . . . After what has gone before we shall deem all discussion of vivisection futile or absurd. It is impossible for men, judging facts by such different ideas, ever to agree; and as it is impossible to satisfy everybody, a man of science should attend only to the opinion of men of science who under­ stand him, and should derive rules of conduct only from his own conscience. (Bernard, 1965: 103)

Honest and clear as it is, such an attitude is unwise today. First, most scientists now have their research funded by public money, so they are accountable to the taxpayers who pay for their research. Second, modern Western socie­ ties embody democratic ideals and there is a growing emphasis on transparency. Third, the well-being of animals is a common concern today. In Europe, it is mentioned in one of the constitutional documents of the European Union: the Treaty of Amsterdam. Plainly, researchers using ani­ mals are uniquely positioned to contribute to public dialogue on animal use. However, to do so in a constructive way they must be willing to understand the points of view of other stakeholders. The need for dialogue with representatives of oppos­ ing views, and with the public, is increasingly recognized by scientists. But if this dialogue is to be fruitful, its participants will need not only to articulate their own case but also to understand the arguments of others. This in turn will require an understanding both of the theoretical basis of the relevant ethical issues and the implications of the debate for the way research is con­ ducted and regulated.

The Theoretical Basis of Animal Research Ethics One widespread worry about animal-based research is that it involves the deliberate subjection of living, sentient beings to harm without their consent. While this is seen by some as an acceptable cost given the benefits of research, others disagree. Much here depends on one’s general ethical outlook on animal use. That outlook can be illuminated by ethical theories, as we shall now try to demonstrate. We concentrate on four leading ethical theories: contractarianism, utilitarianism, animal rights theory, and feminist ethics. Defending the Use of Animals in Research A familiar argument defending the use of animals in research focuses on the crucial role animal models play in research

into disease mechanisms and treatments. It is sometimes added that most animals used in research are rodents, not cats, dogs, and nonhuman primates, and that care is taken to reduce animal suffering. This perspective is informed by two ethical theories: contractarianism and utilitarianism. Contractarians believe that it is only our own long-term interests that count, ethically speaking. Since we depend for our well-being on collaboration with other human beings, duties governing our dealings with them become established. No such duties to animals exist, though we may end up with a sort of indirect respect for animals, given that other humans have direct concerns about them. For those who adopt the contractarian view, the way animals are treated is not always irrelevant. Then, if some people are emotionally attached to certain kinds of animal and disapprove of their use in painful experiments, this becomes an ethical concern. What matters here are the feelings and beliefs of fellow humans on whose collabora­ tion one depends for a license to operate. Therefore, setting ethical limits to the use of animals for research boils down to the task of defining a publicly acceptable framework that allows humankind to harvest the potential benefits of animal-based research. One specific reason for maintaining the welfare of animals involved in research is the avoidance, wherever possible, of experiments that are likely to cause public concern. Surveys confirm public concern over the use of animals in research, but there is little indication that people look at matters from a contractarian perspective. Most people are inclined to weigh up human benefit and animal harm at the same time. Such weighing of benefit and harm typifies utilitarianism. On this view, what matters is the impact of what we do on the well-being of those affected by our actions. The basic principle is that we owe moral considera­ tion to any creature with the capacity to suffer or benefit from what we do. Since human beings and other sentient animals have this capacity, we are obliged to consider the welfare of both humans and animals. In practice, it will not be possible to consider each individual one has an impact on separately, so the focus should be on the interests most seriously affected. However, one’s general aim should be to produce the greatest total fulfilment of interests. On the utilitarian approach, all interests of individuals affected by research activities deserve equal consideration. This means that the well-being of laboratory animals must be taken into consideration in its own right. The utilitarian will support animal use in the laboratory, but only if the cost to animals is outweighed by benefits of the research. Challenging the Use of Animals in Research Today, the utilitarian, cost–benefit approach just described enjoys considerable public support. Nonetheless, the use of animals in scientific research is constantly challenged by various groups and individuals, and in particular

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nongovernmental organizations. The crux of the issue here is whether the damage done to animal interests in scientific research is proportionate and such as to protect vital human interests. Some believe that, in contemporary bio­ medical research, it is. Others disagree. Few would deny that the animals used in experimentation sometimes endure pain and discomfort. Insisting that human and animal interests merit equal consideration, the utilitarian philosopher Peter Singer has concluded that the sacrifice of such a vital animal interest is acceptable only where the benefits are extraordinarily important: . . . If a single experiment could cure a disease like leukemia, that experiment would be justifiable. But in actual life the benefits are always much, much more remote, and more often than not they are nonexistent. (Singer, 1975: 85)

Thus, as Singer shows, animal-based research can be criticized on utilitarian grounds. In modern science, of course, a single experiment that cures a major disease is pure fantasy. Indeed, in a knowledge generation system where finding out what does not work is crucial, identify­ ing the beneficial experiments is no straightforward matter. But when criticizing animal-based research based on examples of limited benefit and erroneous con­ clusions, opponents work within a utilitarian framework. This, however, rarely means being exclusively utilitarian, as the following citation from an animal rights organiza­ tion exemplifies: Animal rights advocates are not anti-science. We believe animals have the right to not be exploited as experimental subjects, but we are also convinced that animal research harms humans by diverting research dollars that should be going to proven methods of curing disease. An increas­ ing number of doctors and scientists are voicing their opposition to animal research based on scientific reasons. Innovative non-animal research methods such as human clinical and in vitro (test tube) research, cell and tissue cultures, epidemiology, and genetic research are more effective methods of studying disease and to test the effectiveness and toxicity of drugs. (Animal Rights Foundation of Florida, 2009)

Thus, while including utilitarian arguments, many oppo­ nents base their opposition on the notion that animals have rights and that using them in research violates these rights. Advocates of a rights view distinguish sharply between interests and rights. Rights, unlike interests, must be respected (i.e., not violated). They are not to be weighed against each other – they operate as moral limits, not factors for consideration. In the case of human rights, this means that the infringement of an individual’s rights for the sake of the common good is wrong. Advocates of

animal rights – the American philosopher Tom Regan prominent among them – apply this idea to sentient creatures generally and draw the conclusion that it is wrong to use laboratory animals for the sake of the com­ mon (usually, human) good. On the animal rights approach, it is always unaccep­ table to treat a sentient being merely as a means to an end – to use a sentient creature as a tool, or instrument, in pursuing one’s goals. In a radical form of this view, no benefit can justify violation of the rights of an individual, whether human or animal. This naturally leads to an abolitionist attitude to animal experimentation. The notion that animals are exploited in science also finds theoretical support in feminist ethics. Feminist ethics strives to describe ethics in terms perceived, by its proponents, as closer to women’s ways of thinking and acting ethically. The emphasis is upon care and affection as a basis for ethical decision making, and it is argued that ethical issues must be seen in a context where differences in power and needs are considered. A key feature is the idea that animals are a marginalized group that society disregards. On this view, patriarchal society disregards, disrespects, and exploits women and animals (and a num­ ber of other marginalized groups) in a similar way, and this calls for solidarity among women. On the positive side, many feminist writers emphasize care and affection as a basis for ethical decision making. One feminist writer summarizes the position in the following way: Along with the self-serving appropriation of animals for the ostensive purpose of advancing human health, there is also a familiar attitude that ‘might makes right’ with regard to the capture, breeding, genetic engineering, use and disposal of research animals. Every feminist knows that women have been and are affected by this form of arrogance in science, in the streets, in our own bedrooms and elsewhere. To condone such an attitude and practice in any context is to perpetuate it in all. . . . While we cannot feel or care the same for every human being or animal, the feeling or caring that we do have for our immediate companions should extend some, via ima­ gination and empathy, to our feeling for, our caring about, the plight of more extended others. And for those who have a rich enough moral imagination, this regard will cross species boundaries. (Slicer, 1991: 119–120)

While a thoroughgoing feminist approach may be mainly of theoretical relevance, the notion of animals as a vulner­ able group, subject to exploitation and unable to speak up for themselves, is an important part of the antivivisection framework of ideas. As will be seen from the overview presented above, there is no unanimous ethical basis underlying ethical debate about the use of animals for research. Rather

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arguments for and against animal use draw on mutually conflicting ethical theories. Thus, there is no reason to expect agreement on these matters. However, dialogue and some sort of compromise may still be a possibility. Dialogue and Compromise We have seen that the mainstream view of animal use in science has a utilitarian basis. Broadly adopting this view, animal ethics (or use) committees perform harm–benefit analyses in which they weigh expected animal harms against the potential benefits of a study. But in practice, the way this is done involves partial rejection of utilitar­ ianism. Utilitarians do not attach significance to species as such. They are interested only in sentience and suffering and regard the idea that human interests matter more than those of animals as ‘speciesism’, a term coined by Richard Ryder. The mainstream view of animal research ethics is typically speciesist in two ways. First, it tacitly assumes that humans have priority, or are to be given more weight, in the harm–benefit analysis and second, different animals are given different levels of consideration. Following what Arnold Arluke and Clifton Sanders labeled the socio­ zoological scale, companion animal species and nonhu­ man primates are given greater consideration than rodents. This preference for humans, and for species humans are especially attached to, seems to rely partly on contractarian thinking. On the other hand, although the animal rights view is usually associated with strong resistance to the use of animals in research, elements of a moderate animal rights view are evident in the legislation of several countries outlawing procedures that are likely to cause serious pain or other kinds of intense suffering. Here we see a nar­ rower group of rights being attributed to animals. Given that animals of most species appear to have a very limited perspective on the future, it can be argued that what matters most is that animals avoid suffering in the here and now. Animals therefore have the right not to be caused suffering, and we must not cause them intense or prolonged pain and distress that they cannot control. But, unlike us, they should not be granted the right not to be killed painlessly in the course of biomedical experimentation. So in practice, the regulation and typical defence of animal experimentation draws on several moral views and makes various concessions to those who are in principle against animal use. Similarly, opposition to animal use contains a wide range of views, from those arguing that the use of animals in research can never be accepted to those agreeing that such use is justified but that there are shortcomings in the present scientific practice with ani­ mals. In addition, challenges come not only from outside science but also from critical voices within the scientific community. Increasingly, representatives of different

views are also brought together in debates, in the work of animal ethics committees, animal care and use com­ mittees, and in expert working groups appointed by regulatory agencies. The potential for dialogue and compromise depends on how distant and entrenched people’s positions are and on how pragmatic people are willing to be. Nevertheless, on the basis of our own experience we will argue that a fruitful dialogue is possible more often than not. Much of this dialogue can be structured around the powerful Principle of the 3Rs, first presented 50 years ago and steadily gaining ground in the scientific practice. This principle requires researchers where possible to replace existing live-animal experiments with alternatives, reduce the number of animals used in each experiment, and refine methods so that animals are caused less suffering. It is not hard to see that less invasive sampling techni­ ques, improved housing systems, and more precise models requiring fewer animals to be used, are likely to be viewed as morally attractive developments within the utilitarian perspective. While refinement measures may not meet the concerns of the more strident opponents of animal-based research, such opponents will still welcome efforts on replacement and possibly also reduction. Formal discussion of ethical issues in animal research often focuses on the minimization of harm caused to animals, but of course the maximization of expected ben­ efits is also important. Animals are deployed in research to generate knowledge and in the specific case of biome­ dical research, knowledge that offers better ways of treating or preventing disease. In the second half of this article, we shall concentrate on the 3Rs and on research benefits. We will be concerned primarily with the more applied issues raised by ethical concerns about animal research.

Ethics in Practice: Issues in Research and Regulation Delivering Benefits The aim of animal research is to secure benefits through the acquisition of new knowledge that provides answers to fundamental questions in biology or improves human and animal health. However, science is not a predictable manufacturing activity. Therefore, it is in practice mostly impossible to predict accurately whether a research pro­ ject will improve our understanding of important biological mechanisms or lead to the development of therapeutics. Nevertheless, assessing benefits is funda­ mental if those benefits are to be balanced against the expected harms to animals, and also if the most effective use of resources is to be made. (Note that assessing benefit does not automatically favor applied research over funda­ mental research. The assessment we have in mind is only

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of whether a suggested research project is likely to be able to generate its intended benefits.) A working group of the Federation for European Laboratory Animal Science Association (FELASA) has described a set of key ques­ tions that ought to be asked about any research project involving animals. On the benefit side, these questions include: How will the results add to existing knowledge and how will they be used? Are the objectives realistic, original, and timely? How is the work related to previous and ongoing work in the research group and elsewhere? How likely is it that the benefits will be obtained, based on (1) choice of animal model and scientific approach, (2) experimental design, (3) competence of staff, (4) appropriate facilities, and (5) communication of results? In academic research, the first two or even three of these questions are typically addressed in the evaluation of funding applications, where the review focuses on science rather than ethics. To the extent that ethics com­ mittees (see the section titled ‘Enforcing Standards’) aim to evaluate benefit, they are more likely to focus on the question of how likely it is that the targeted benefits will be achieved. While there are official guidelines on staff competence and research animal facilities, there is room for more discussion on issues connected with the choice of animal model, experimental design, and communication. In determining whether or not the expected scientific and medical benefits will be secured by animal research, the suitability of animal models is often a critical factor. In some areas of research, the choice of animal species to be used is obvious: the agricultural scientist interested in aspects of dairy cow metabolism will normally use dairy cows. But in much fundamental biology and biomedical research, animals are used as models: researchers study animals of one species with the aim of gaining under­ standing with a wider application or with application to another species (typically humans). Critical analysis of what characterizes a good animal model is curiously rare in the scientific literature. Most review papers on animal models limit themselves to an overview of the models and connected discussion of the results obtained in studies using them. However, it has been forcefully pointed out that appropriate animal models are crucial in improving the success rate of pharmaceutical drug development, that is in moving from a promising compound to an approved, marketable drug. The way experimental design affects research benefits is an issue around which considerable and challenging evidence has accumulated over the last few years. Much of this evidence has come from critical review of animal research underlying the development of treatments for stroke in humans. Here, researchers concerned about the limited translation of preclinical research results into effective treatments have identified a number of short­ comings in experimental design.

In many experiments, for example, the efficacy of the prospective treatment was probably overestimated as a result of design bias. Often, animals were not randomly allocated to treatments, and researchers, who were not blinded when they administered treatments (drug or control) or assessed outcomes, may have influenced measurements uncon­ sciously. The situation is unlikely to be different in research into other topics, suggesting that there is room for improvement in generating valid and useful results. If research is to be beneficial, results must also be made public; therefore communication is central. Publication in peer-reviewed journals is a prominent feature of modern academic life, particularly in the sciences. As the perfor­ mance of today’s researchers is measured largely by their publication records, academic researchers will certainly invest time and effort in communicating their results. However, it is generally difficult to get negative results (no effect of treatment) published. This kind of publica­ tion bias is well known in science, and it has a number of ethical consequences. A general problem here is that publications are likely to reflect only part of the research that has been carried out in the field and hence give a biased picture of knowledge. In the particular case of research on animals, this affects the number of animals: The ‘publication bias’ of journals in favour of hypothesisconfirming results . . . might be a reason for the slow progress in the development of new animal models and their valida­ tion. Negative results often go unpublished, and poor concepts, hypotheses, and models survive, notwithstanding a vast amount of contradictory data, merely because these data are not made available to the scientific community. . . . Publication of negative findings from well-conceived and performed studies can help investigators to evaluate and ultimately abandon the development of an invalid and irrelevant animal model and help reduce the unnecessary use of laboratory animals. (van der Staay, 2006: 147)

It can be powerfully argued, then, that there is an urgent need to create a coordinated, internationally recognized, searchable database where data on negative experimental findings can be deposited. Therefore, more can and should be done to ensure that animals are used in research in a way that is most likely to generate new, relevant knowledge. However, even if everything possible has been done to use animals in beneficial ways, it can be asked whether enough is being done to minimize harm to the animals. This question is the subject of the next section.

Minimizing Harm The 3Rs principle seeks to minimize harm by the repla­ cement of animal-based research by alternative animal­

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free methods, the reduction of the number of animals used, and the refinement of methods to minimize distress. The replacement principle is simplicity itself. It says: if it is possible to obtain the relevant scientific benefits without using live animals, we should do so. This idea is relatively uncontroversial. All four of the ethical theories we have looked at support it. Experimental procedures satisfying the replacement principle will employ in vitro (e.g., established cell line cultures) and in silico methods (bioinformatics). Ex vivo methods require tissue from an animal to produce the primary tissue culture on which the actual experiment is carried out; hence they do not usually wholly avoid animal use. All of these methods are already widely used to complement work involving animals. But, strictly speaking, replacement requires existing procedures using animals to be abandoned, not supplemented. The overall development of replacement methods has focused on routine testing, the production of biological material, and teaching. A steadily (albeit slowly) increas­ ing number of alternative test methods have gained regulatory acceptance. A number of teaching tools, ran­ ging from videos to interactive software to highly sophisticated mannequins, allow living and euthanized animals to be replaced at various levels of teaching – including in veterinary training. If, ideally, animals should only be used when nonani­ mal alternatives have been fully explored, it is also true that research does not always take place within an ideal research environment. One challenge here is to optimize information transfer and sharing so that animals are not used where data already exist. However, contrary to the claims of many opponents of animal experimentation, alternatives to most animal-based research do not exist yet. It is comparatively easy to develop alternatives to routine testing and teaching, for here enough is known to create a model of the mechanisms under study. Alternative options in research are often less obvious, especially when the aim is to gain knowledge of mechan­ isms that are presently poorly understood. For example, one of the great challenges lying ahead is that of devel­ oping replacement alternatives for the dynamics and complexity of a living body. Here, there may be a shared interest between the replacement ideal and the aim to develop research approaches more closely resembling the reaction and experiences of the human body and mind. A recent work­ shop bringing together scientists and 3R promoters proposed ethically acceptable pain studies using replace­ ment human volunteers in some experiments. This would not only decrease the number of animals used but also produce more useful data by allowing direct links to be established between the human subjective pain experi­ ence and the biological parameters under study. Looking further (and more speculatively) ahead, a popular science

essay has introduced ‘‘the world of 2050 when computergenerated twins are created for every baby to test drugs and detect long-term health issues’’ (Alexandrov, 2009: 28). Indeed a virtual physiological human is the ambitious goal of one research network in biomedical modeling and simulation of the human body. The reduction principle requires scientists to use as few animals as possible. Its main ethical purpose is to reduce collective animal harm. However, it has other benefits, since it encourages good resource management and typically goes hand in hand with efficient experimen­ tal design in which proper attention is paid to standardization and the control of variation. Reduction may, however, introduce conflicts. Using too few animals to produce meaningful results is arguably as unethical as using more animals than necessary, and interestingly a number of systematic reviews indicate that many animal studies use too few animals to provide reli­ able data. Such studies cause harm without benefits and involve poor use of resources. A further difficulty may arise when the smaller num­ ber of animals used places a proportionately greater burden on each animal. This may occur, for example, when a given quantity of plasma can be obtained by bleeding the same animal several times instead of bleed­ ing several animals once. Here, it can be argued that the total burden is best shared. In fact, the notion of animal numbers is less clear than might initially be supposed. What should be reduced? The total number of animals used? Or the number of animals used relative to scientific output? After a period of steady decline, figures on laboratory animal use are now rising, but so is investment in biomedical research, and the number of animals now being used relative to the amount of scientific activity taking place may actually be falling. Again, should the focus be on the number of animals being used or the number of animals suffering? Not all animal research induces pain or suffering, and in many experimental regimes animals are euthanized before they are exposed to invasive treatment or develop signs of disease. Where it has been shown that a research aim cannot be pursued without animal use, and once the animal num­ bers have been cut as much as possible, the refinement principle urges scientists to minimize any pain or distress they cause by adjusting experimental procedures. Few people would challenge this principle, at least so long as conformity with it poses no threat to scientific results and does not require exorbitant funding. Experiments can be refined in various ways. The most direct strategy is to adapt the procedures to cause less pain or distress. Pain may result from surgical interven­ tions, or from a developing disease such as a growing tumor, or from an inflammatory process. Here, appropri­ ate anesthesia and analgesia can play a vital role in

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refinement. In fact, researchers are often legally required to give very careful consideration to pain control. For example, current European legislation demands that all experiments be carried out under anesthesia. There are only two exceptions. The first applies when anesthetizing the animals would be more invasive than the actual experiments; the second applies when anesthe­ sia is incompatible with the scientific objective. However, even in the latter kind of case (e.g., in studies of pain itself) refinement measures can be taken. The experimental protocol can, for example, be adjusted to reduce the duration of pain, its intensity, and the area affected. The housing and day-to-day care of experimental animals can often be improved, though regrettably few studies have examined the potential refinement gains here. Environmental enrichment – that is the provision of resources that enable animals to interact with, and control, features of their environment, and to engage in motivated behaviors – normally improves animal well­ being. The social environment is an equally important aspect, since almost all laboratory animal species are naturally social. The way animals are handled and habi­ tuated to experimental procedures will also affect their welfare. Unfortunately, few studies of laboratory animals have addressed this issue, and handling of small animals typically mainly relies on physical restraint. An example of refinement here is the use of positive reinforcement techniques, where animals are rewarded for performing the desired behavior. This technique has been used to train primates to present their arms for blood sampling. Where animals are experimentally required to develop diseases that interfere with their capacity for normal activ­ ities, their lives can be made easier through adapted housing, for example, by making food and water available on the cage floor. Such refinements are relevant not only when the dis­ ease interferes with the locomotor capacity, but also when the clinical conditions involve pain or general sickness. If a disease is progressive, as is the case both in degen­ erative disease models and many models of infectious and tumor disease, refinements can be achieved by the impo­ sition of humane endpoints. This means that predefined clinical signs are used as endpoint, or euthanasia, para­ meters. Interestingly, housing adaptations and humane endpoints are also scientific considerations, since severely affected animals not offered the refinements are likely to die from secondary causes such as dehydration rather than the disease under study. When the cause of death is unknown or only indirectly related to the disease, survi­ val/mortality is not a high-quality variable to measure. It can be seen, then, that many techniques, especially in the sphere of refinement, are available to scientists wishing to apply the 3Rs. Less is known about how widely these measures are actually applied. Empirical reviews of refinement implementation suggest that both postsurgical analgesia and housing adaptation and humane endpoints

are often not applied in research. Such deficiencies raise questions about enforcement. What can be done to ensure that the 3Rs are more widely respected? The following section looks into this question. Enforcing Standards The maintenance of standards in society is invariably achieved through a combination of hard regulation and soft promotion. People are encouraged to act in ways society deems acceptable both by rules (sometimes backed by sanctions) and by policies that promote a positive attitude to the values underlying those rules. Though the focus in the following is mainly on regula­ tion, the importance of the soft promotion of responsible attitudes to animal research should not be underesti­ mated. Ultimately, the aim must be to bring the animal research community to identify with the values under­ pinning the rules, to create a culture, within animalexperimentation, of ethical responsibility. Most animal-based research is funded, directly or indirectly, by public money. This means that the public, or society as a whole, must be counted among a research institution’s stakeholders. Society uses various mechan­ isms to guarantee that research using animals is carried out in an acceptable way. The most obvious is legislation, which in terms of enforcement is a powerful tool. But the legislative process is sluggish, while science and technol­ ogy develop rapidly, and this means that laws must be broadly drafted if they are not promptly to go out of date. As a consequence, the real decision making on research projects is usually delegated to an ethics, or animal care and use, committee. (In Europe, the term ‘animal ethics committee’ is used; in North America, Australia, and New Zealand, ‘animal care and use com­ mittee’ is preferred.) Committees can act more flexibly. They are also able to enter into dialogue with scientists proposing experimental projects, and in that way chal­ lenge scientists to develop their research in line with evolving best practice. Ethics committees and other similar bodies are often the only formal regulatory bodies tasked with looking in detail at research projects. A complete and transparent review process is dependent on the committee’s composition and dynamics: it should represent all important stakeholders in the discussion equally. There seem to be at least three main stake­ holders: researchers and industry (usually represented by scientists) who have an interest in being able to conduct their proposed studies; animals (usually repre­ sented by veterinarians and animal caretakers, and sometimes by animal protection organizations), which have an interest in being protected from harm; and society (represented by lay members as well as interest groups such as patient organizations and animal protec­ tion organizations).

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Not every aspect of animal research can be under the ethics committee’s control, and ultimately responsibility for the way animals are used rests with individual researchers. This is true, not just in moral terms, but also practically, as many decisions with ethical implica­ tions are made in the course of ongoing research. Therefore, critical discussion and self-regulation within the scientific community are hugely important. Those actually doing the animal-based research need to consider whether their work prompts ethical concerns. Increasingly, ethical questions and the 3Rs are consid­ ered in the assessment of funding applications (though improvements here are arguably still needed). In the review of manuscripts submitted for publication, in contrast, most journals continue to require merely a statement affirming that the research complies with official recommendations, or relevant legislation, or an ethics committee’s decision. Scientific journals could make better use of their ability to raise the ethical standards of animal use in research. Refusals to publish studies based on the ethics of the research methods would send a very strong signal to scien­ tists. A policy of encouraging, or requiring, the authors of papers on animal-based research to describe any ethical problems raised by their work would also be beneficial. Information on the adverse effects of experimental methods on animals is still rarely reported in scientific papers. Society has a legitimate interest in the activities of animal researchers. This is not only because much research involves public money, but also because the well-being of any sentient animal deserves proper con­ sideration and protection. This means that scientists using animals are accountable to society: they must seek to explain their work, and they must seek, equally, to listen to public concerns. Engagement of this kind is in any case in the scientist’s best interests. To engage in effective public dialogue, scientists mak­ ing use of animals for research will need to meet the following two requirements. First, they must show that they have done what they can to ensure both that the research will deliver beneficial results and that these results will be achieved in way that causes a minimum of harm to the animals. Second, scientists must be able to understand and assess the moral objections of their oppo­ nents. This second requirement applies as stringently, though in the other direction, to the critics themselves: they in turn need a proper understanding of the scientific value of animal use. We hope that the present article serves to prepare both defenders and opponents of animal experimentation for dialogue.

See also: Animal Rights; Contractarian Ethics; Environmental Ethics, Overview; Feminist Ethics; Rights Theory; Speciesism; Utilitarianism; Veterinary Ethics; Xenotransplantation.

Further Reading Alexandrov N (2009) Virtual twins could bring the end of animal research. New Scientist 2711: 28. Animal Rights Foundation of Florida (2009) Animal experimentation. http://www.animalrightsflorida.org/Experimentation.html (accessed June 2010). Armstrong SJ and Botzler RG (eds.) (2008) Part 5: Animal experimentation. The Animal Ethics Reader, 2nd edn. London: Routledge. Baird RM and Rosenbaum SE (1991) Animal Experimentation - The Moral Issues. Buffalo: Prometheus Books. Bernard C (1865/1957) An Introduction to the Study of Experimental Medicine. New York: Dover Publications. Birke L, Arluke A, and Michael M (2007) The Sacrifice: How Scientific Experiments Transform Animals and People. West Lafayette, IN: Purdue University Press. DeGrazia D (1999) The ethics of animal research: What are the prospects for agreement? Cambridge Quarterly of Healthcare Ethics 8: 23–34. Frankel PE and Paul J (eds.) (2000) Why Animal Experimentation Matters: The Use of Animals in Medical Research. New Brunswick: Transaction Publishers. Harvey W (1628) On the Motion of the Heart and Blood in Animals. http://www.bartleby.com/38/3/2.html (accessed June 2010). Kaliste E (ed.) (2004) The Welfare of Laboratory Animals. Dordrecht: Kluwer. LaFollette H and Shanks N (1996) Brute Science: Dilemmas of Animal Experimentation. London: Routledge. Langley G (ed.) (1989) Animal Experimentation – The Consensus Changes. London: Macmillan. Pontifical Academy for Life (2003) Concluding communique´ on the ‘‘Ethics of biomedical research for a Christian Vision. http:// www.vatican.va/roman_curia/pontifical_academies/acdlife/ (accessed June 2010). Rodd R (1990) Biology, Ethics and Animals. Oxford: Clarendon. Rudacille D (2001) The Scalpel and the Butterfly. The Conflict Between Animal Research and Animal Protection. Berkeley: University of California Press. Russell WMS and Burch RL (1959) The Principles of Humane Experimental Technique. London: Methuen. Russow LM (1999) Bioethics, animal research and ethical theory. Institute for Laboratory Animal Research. ILAR Journal 40: 15–21. Singer P (1975) Animal Liberation. New York: Avon Books. Slicer D (1991) Your daughter or your dog? Hypatia: A Journal of Feminist Philosophy 6: 108–124. Smith JA and Boyd KM (1991) Lives in the Balance: The Ethics of Using Animals in Biomedical Research. Oxford: Oxford University Press. van der Staay FJ (2006) Animal models of behavioral dysfunctions: Basic concepts and classifications, and an evaluation strategy. Brain Research Reviews 52: 131–159. World Medical Association (2000) Ethical principles for medical research involving human subjects. http://ohsr.od.nih.gov/guidelines/ Helsinki.html (accessed June 2010)

Relevant Websites http://altweb.jhsph.edu – Altweb – The global clearinghouse for information on alternatives to animal testing. http://www.biomedtown.org/biomed_town/VPH – Virtual physiological human square.

Biographical Sketches Anna Olsson is a researcher at the Institute for Molecular and Cell Biology in Porto, Portugal, where she is the head of the research group in laboratory animal science. She graduated in animal science (1994) at the Swedish University of Agricultural Sciences and holds a Ph.D. in ethology (2001) from the same

Animal Research 135 university. Her research includes both farm and laboratory animals and spans the disciplines of ethology, animal welfare and ethics. She is particularly interested in understanding the impact on animals of research and biotechnology, and the ethical considerations arising from such use of animals. Peter Sandøe is a professor of bioethics at the Faculty of Life Sciences, University of Copenhagen and the director of the Danish Centre for Bioethics and Risk Assessment, a

cross-institutional and interdisciplinary research center. He was educated at the University of Copenhagen (MA philo­ sophy 1984) and at Oxford University (D.Phil. 1988). After 1990, his research has been mainly within bioethics focusing particularly on ethical issues related to agriculture, animals, and biotechnology. In recent years, his interest in including perspectives of the social sciences in ethical questions has been growing.

Animal Rights E Pluhar, Pennsylvania State University, Uniontown, PA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Anthropocentrism The view that human beings are the only, or the primary, bearers of moral rights. Ethology The study of nonhuman animal behavior from an evolutionary and comparative perspective. Moral agents Beings capable of understanding and acting upon moral principles. Moral rights Justified claims against moral agents by or on behalf of morally considerable beings – for example, noninterference and assistance. Moral rights, basic Moral rights shared by all highly morally significant beings – for example, the right to life and the right not to be tortured. Moral rights, nonbasic Moral rights held by a subset of morally considerable beings – for example, the right to freedom.

Introduction Animal rights, or more precisely nonhuman animal rights, would entitle certain nonhumans to respectful treatment by moral agents. As far as is known, human beings alone are capable of understanding and acting on moral princi­ ples – that is, of being moral agents – so it is they who would be obliged to treat, and refrain from treating, nonhumans in respectful or disrespectful ways. If these nonhumans have moral rights, it follows that they are morally significant beings – that is, beings worthy of moral consideration. Beings who are equally morally sig­ nificant (e.g., a child and a typical human adult) need not have all the same rights, but they do share basic rights, such as a right to life and a right not to be tortured. (Note that basic rights are prima facie: They are not claimed to be absolute or indefeasible. Moral agents’ infliction of death or suffering upon one might be justified if it is one’s own rational choice or in one’s own best interests, or if moral agents cannot avoid such consequences when they act in self-defense.) Equally morally significant beings, while sharing basic rights, do not all have the same rights as any typical adult human, however. Nonbasic moral rights, such as autonomy rights, are held only by beings with the capacity to exercise those rights. Different humans may have widely different nonbasic rights; the same might hold for dogs, cows, tigers, and the like, in comparison to typical adult humans. The

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Moral rights, prima facie Rights that may justifiably be overridden. For example, a morally significant being’s right not to be made to suffer may be overridden by moral agents if suffering is required to save the being’s life. Morally significant beings Beings who are proper subjects of moral agents’ concerns. Sentient beings Beings capable of having experiences, including pleasurable and painful experiences. Speciesism The view that moral weight should be given to species membership. Utilitarianism The view that moral agents have one fundamental obligation – (roughly) to maximize nonmoral value (‘utility,’ which has most often been identified with happiness or preference satisfaction).

debate over animal rights is a debate about basic moral rights. Do any nonhuman animals have a prima facie right to life or a prima facie right not to be made to suffer at human hands? Current practices indicate that humans have not thought so. Raising and killing nonhumans for food, rai­ ment, research, education, and product testing presume that they have no significant right to life. Sport hunting and trapping make the same presumption. Agriculture, research, and testing claim the most nonhuman lives, with hunting, trapping, and recreation claiming significant lives as well. Worldwide, animals raised for food number in the tens of billions; those killed for research, product testing, and education number in the tens of millions. One might hold that some animals have no serious right to life but do have a prima facie right not to be treated inhuma­ nely. Currently, many animals used for the preceding purposes are subjected to conditions that would be very painful for humans. Some of the pain caused is often defended as an unavoidable consequence of procedures claimed to be important to human life and health. This position is compatible with the attribution of some rights to nonhumans: One might hold that they have a prima facie right to humane treatment that can be overridden by the need to preserve allegedly more morally significant lives. However, no such justification is possible when the pain is avoidable or the purpose nonessential for human welfare. Defenders of such practices as confining calves to

Animal Rights

2-foot-wide crates or five hens to a cage the size of a folded newspaper, as well as those who see nothing wrong with crushing the chest of an animal caught in a leghold trap or with beating circus animals, assume that these beings have no right to humane treatment at all. Animal rights supporters have directly challenged these assump­ tions and the practices based on them, making the case that many nonhumans have highly morally significant lives. One may hold that nonhuman animals have significant moral status without attributing rights to them, however. As we shall discuss, utilitarianism offers a different per­ spective – one that rights theorists reject.

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moral status of nonhuman animals. This much may be said, however: According to rights theorists, any version of utilitarianism, no matter how carefully conceived it may be, fails to provide sufficient warrant for the protec­ tion of innocent life. Only aggregate utility counts, regardless of how unjust such an outcome seems to be. Throwing an innocent prisoner to an infuriated mob might lead to more satisfaction in the world, but it is grossly disrespectful of that person. If overall satisfaction were to be increased by the calibrated forced breeding of ‘utility generators,’ that is what we should do as utilitar­ ians, even if the quality of life for each created individual is very low. Therefore, the philosophical nonhuman ani­ mal rights movement is opposed to utilitarianism.

The Rights View versus Utilitarianism The Roots of Anthropocentrism The contemporary philosopher who named and is most associated with the twentieth-century animal liberation movement, Peter Singer, is not a philosophical advocate of rights, although he originally spoke loosely of rights in the purely legalistic sense. Singer is a utilitarian. Utilitarianism in its classic form is the view that moral agents have one fundamental obligation: to maximize utility (which has most often been identified with happi­ ness or, as Singer has argued, preference satisfaction). Singer traces the roots of his view to the original utilitar­ ian, Jeremy Bentham (1748–1842), who held that society’s goal should be the greatest happiness for the greatest number of individuals. Bentham held that any being cap­ able of suffering (i.e., any sentient being) should have his or her experiences taken into account by utilitarian cal­ culations. Thus, the overall utility that would be generated by a given action determines the rightness of that action. By contrast, rights theorists hold that the rightness of an act is not exhausted by the act’s conse­ quences. Individuals with basic moral rights should have those rights respected by moral agents, even if the sum total of happiness generated might be less than would result if those rights were violated. Since Bentham’s day, many sophisticated variations on classic hedonistic utilitarianism, which identifies utility with pleasure and disutility with pain, have been proposed. Some versions are pluralistic (identifying utility with a variety of goods, not merely with pleasure) rather than hedonistic; moreover, not every type of utilitarianism iden­ tifies rightness with the utility produced by an act. One might focus instead on the utility generated by following a given rule or by following a rule that would be generally accepted by society. In his later writings, Singer proposes ‘‘preference utilitarianism,’’ which stipulates that, at least for self-conscious beings, satisfied preferences, and not just unreflective pleasures, are equivalent to utility. It is beyond the scope of this article to discuss the ramifications of different utilitarian theories for the

The view that nonhumans have basic moral rights stands in opposition to anthropocentrism, the presumption that humans are the sole or the primary morally significant beings on the planet. Although we humans have always made exceptions for favored nonhumans, we have typically accorded substantially less moral significance to nonhuman animals than to ourselves. Anthropocentrism is deeply rooted in religious and philosophical points of view. Religious Influences Religions traditionally reflect and reinforce a culture’s deepest ideals. The place of nonhumans in various reli­ gious doctrines is therefore quite revealing. The major religious traditions of the West and the East cannot be said to have attributed rights to nonhumans. Nonetheless, some of these traditions accord a higher moral signifi­ cance to nonhuman animals than do others. Indeed, some, upon first glance, appear to be the opposite of anthropo­ centric. Approximately 3000 years before Christ’s birth, the ancient Sanskrit Vedas spelled out the doctrine of ahimsa, according to which all life should be respected. This doctrine continues to be fundamental to many Eastern religions, including Buddhism, Hinduism, and Jainism. The ahimsa doctrine is compatible with the attri­ bution of different degrees of moral significance to varieties of living beings, however. According to some soul transmigration beliefs, a soul that is reincarnated as a nonhuman is a former human who is being punished for misdeeds. This is an anthropocentric doctrine, although its implications for the treatment of nonhumans are more favorable than is the case for straightforward Western anthropocentrism. Ahimsa has been interpreted to pre­ suppose that a soul (either one world soul or many individual souls) changes bodily identities through a suc­ cession of lives, unless and until ultimate enlightenment is obtained. The chicken you eat may be your grandmother;

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the fly your grandchild swats 30 years from now may be you. Compassion toward living beings thus appears to be an extension of regard for oneself and one’s human loved ones. This too is an anthropocentric doctrine. Moreover, this compassion is compatible with some killing for human purposes: The soul cannot be killed, according to such a view, and in fact the soul may be thought to be benefited if it is released to a worthier body. Thus, even followers of ahimsa could consistently support some forms of animal exploitation. The Western religious traditions of Judaism, Christianity, and Islam have traditionally been more openly supportive of anthropocentrism, although not uni­ formly so. Holy writings have been translated and interpreted in a multitude of ways, and religious leaders have held diametrically opposed views on the moral status of nonhumans. To this day, observant Jews are not supposed to hunt for sport, but the Mosaic law included provisions for animal sacrifices to honor the deity or to expiate one’s sins (see Leviticus 19:20 for an Old Testament example). Jewish vegetarians and nonve­ getarians argue passionately for their views, based on different understandings of sacred texts. Muslims can argue similarly, pointing to different passages in the Koran, and the same holds for Christians who take differ­ ent views on the moral status of nonhumans. Anthropocentrism is a dominant theme in Western religious traditions, however. One much-discussed pas­ sage, Genesis 1:26, states that man is made in God’s image and given dominion over all other living beings. Some argue that this implies nonhumans exist only for human convenience and may be treated in any way whatever; others interpret it as meaning that God is giving humans stewardship over nonhuman animals, requiring us to use them responsibly rather than giving us carte blanche. Regardless of which way the passage is construed, it implies that the writer or writers of this verse believed humans to have a privileged moral place in creation. Those who do not regard the verse as a mere expression of anthropocentrism debate about the special respect in which humans may resemble the Deity. Some have claimed that the source of our alleged moral preeminence is the possession of an immortal soul, a gift from the immortal and eternal Creator. Skeptics would dismiss this interpretation entirely, but believers too have cause to reject it. There is in fact no evidence that the author(s) of Judeo-Christian scriptures believed that humans alone have immortal souls. In various passages of the Bible, souls, however that concept may be understood, are attributed to every living being and not just to human beings, and souls are nowhere denied to nonhuman ani­ mals. For example, Job 12:10 refers to ‘‘the soul of every living thing,’’ as does Jeremiah 9:10. See also Hosea 2:18 and Isaiah 65:17, 25. Moreover, as Cardinal (later ‘Saint’) Bellarmine (1542–1621) noted, if it were true that only

humans have immortal souls, it would seem that the infliction of pain on nonhumans would be even more morally reprehensible than making human beings suffer because nonhumans could not be compensated for their undeserved pain in an afterlife. Thus, the frequently held belief that humans alone have immortal souls is not only unsupported but also irrelevant to the issue of nonhuman moral significance. Other theists hold that humans resemble God by being the only rational or intelligent creatures, finite though those capacities are. Some, in fact, identify the rational capacity with the having of an immortal soul. Could this be a major morally relevant difference between humans and nonhuman animals? Such was the contention of the still enormously influential St. Thomas Aquinas (1225–74). Because the belief that human rationality gives us a higher degree of moral significance than nonhumans is often given secular expression, Aquinas’ arguments will now be addressed in a broader, philosophical, context. Traditional Philosophical Views on Human and Nonhuman Moral Significance Aquinas’ chief philosophical inspiration was a pagan phi­ losopher, Aristotle (384–322 BCE). Aquinas made it his life’s work to reconcile Aristotle’s writings with Holy Scriptures and their interpretations by church fathers. ‘‘The Philosopher,’’ as Aquinas always called him, attrib­ uted souls to all living things, but these souls were ordered from lowest to highest: the nutritive, the appeti­ tive, the sensory, the locomotive, and the intellectual. Aristotle held that each soul a step higher on the scale retained the lower soul capacities. Not surprisingly, the intellectual soul gets pride of place. Only humans (although not all humans) can have such souls. Beings with irrational souls are inferior, he believed, and there­ fore properly subservient to their superiors. Hence the rational should rule the irrational, the latter having been created by nature to serve the former. Aristotle took his views to have similar implications for irrational humans, who ought to be slaves of their alleged superiors. Aquinas added his own interpretation of the scriptures to ‘the Philosopher’s’ views, substituting God for nature. ‘‘The divine likeness’’ between humans and God pro­ claimed in Genesis 1:26 is intellect, and ‘‘dominion’’ of humans over beasts is interpreted as the proper rule of the rational over the irrational. The latter have no value as such in God’s eyes: They exist purely for the purposes of the rational. Although Aquinas did not use the language of rights, his view entails that humans alone can be morally significant. Half a millennium later, Immanuel Kant (1724–1804) likewise expressed the view that rational beings alone are ends in themselves, whereas nonrational beings are merely means for the satisfaction of the former. One can wrong rational beings but not things.

Animal Rights

How does Aquinas reconcile his views with the parts of the Bible that appear to enjoin kindness to beasts and birds? Ingeniously, he postulates that cruelty to nonhu­ mans can only be wrong if it indirectly harms only morally significant creatures: humans. One either damages someone’s (perhaps one’s own) property or, more significantly, becomes more likely to practice cruelty against humans. Many criticisms have been raised against Aquinas’ discussion of cruelty. Perhaps the best way to dramatize misgivings would be to imagine the following situation. Suppose the neighbors’ cognitively challenged child is playing by himself in their yard. Presumably, all agree that it would be wrong to use the child for target practice. According to Aquinas’ account, however, it would be wrong because either (1) one is damaging one’s neighbors’ property without their consent or (2) one’s action may make it more likely that you will target your rational neighbors next. Something seems seriously amiss with this account. One is instead inclined to believe that the child would be the chief victim of one’s action, which presumes that he is morally significant in his own right. He is, after all, not an unattended mechanical toy but, rather, an innocent sentient being. Why should his lack of rationality disqualify him from moral consideration? It appears that the child’s ability to suffer is a morally relevant characteristic. If so, sentient nonhumans can also be wronged. French philosopher Rene´ Descartes (1596–1650) offered a way out of the preceding dilemma. He proposed that beings that are not rational are incapable of suffering. He held that nonhuman animals are merely organic machines without consciousness, unlike humans, who allegedly are amalgams of material bodies and immaterial minds (souls). Although he claims he does not deny that nonhuman ani­ mals are capable of sensation, he is denying that they can suffer. Because a nonhuman’s ‘sensation’ is supposedly not present to a mind, it cannot result in any experiences. It follows that one cannot be cruel to such a being, any more than one could be cruel (to use a current analogy) to a heatseeking missile when one blows it out of the sky. Descartes argues for his machine model of nonhuman animals by pointing out that (1) conscious beings are capable of language, whereas ‘beasts’ are not, and (2) nonhuman animal behavior is in no way indicative of thought. Both the premises and the inference from those premises have been roundly criticized throughout the years. Despite the fact that Descartes’ argument has seemed implausible to many, a number of scientists have accepted its conclusion, arguing that nonhuman animals are governed by instinct and stimuli, having no conscious­ ness to link outside forces and mechanical responses. Some philosophers, most notably Peter Carruthers, have also defended neo-Cartesian denials of nonhuman suffer­ ing. These new arguments have also been thoroughly

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criticized. Even if the Cartesian and neo-Cartesian argu­ ments had withstood all the counterarguments mounted against them, however, an implication disturbing to many would follow: Irrational humans (e.g., infants) would be incapable of suffering and thus have no right not to be tortured. Is cruelty to infants really an impossibility? How different are such humans from other animals?

Similarities between Humans and Other Animals Because these are empirical questions, we now turn to biology and ethology. Humans and nonhuman animals share a common ancestry, according to evolutionary the­ ory. Unlike Aquinas and Descartes, Charles Darwin (1809–82) viewed humans as part of the animal world, with mental attributes that might be more complex but not fundamentally different from those possessed by other animals. Here we have a secular version of St. Francis’ vision of the family of living beings. If all life on Earth has a common origin, with differences explainable in terms of the interaction of external factors and natural selection, as evidence overwhelmingly indicates, it would be extraor­ dinarily unlikely for humans to be the only creatures capable of consciousness. Consider the human brain, also known as the triune brain. It consists of the reptilian brain, shared by all vertebrates and correlated with terri­ toriality, homing, mating; the Paleomammalian brain or limbic system, shared by all mammals and intimately associated with emotions; and the neo-mammalian brain, present in more recently evolved mammals and closely connected to problem-solving and the like. Ethology, the field devoted to the study of nonhuman animal behavior from an evolutionary and comparative perspective, is rife with observations of behaviors that seem irreducible to mindless responses. Ethology pioneer Donald Griffin has meticulously documented such behaviors, as has Marc Bekoff. Even behaviorists assume that nonhumans can learn from experience: Indeed, they take dogs, pigeons, rats, etc., to be good models for human learning. Their cognitive ability can be at a very high level indeed. The capacity for self-awareness has long been thought to be restricted to rational beings. Besides humans, all the apes, elephants, and some birds have demonstrated this capa­ city. Griffin and his fellow ethologists appeal to Occam’s razor: It is far more difficult to explain complex behavior such as toolmaking (a skill that must be taught to baby chimpanzees by their elders) without the assumption of consciousness than it is to hypothesize problem-solving abilities. Similarly, behavior we associate with pain in ourselves in circumstances that would indeed be quite painful to us is most economically explained as a response to pain sensations. The same applies to apparently joyful, fearful, or angry behavior.

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The one capacity some humans have that might not be shared by nonhumans is the ability to make moral judg­ ments at the level required for moral responsibility. As far as we know, humans alone are capable of moral agency and thus appropriately subject to the criminal justice system. However, here too we see evidence of continuity between our species and others. Bekoff’s work, as well as neurologist and biologist Marc Hauser’s research, docu­ ments the nonhuman roots of so-called human moral behavior. Moral agency does not spring from nowhere: It has its psychological basis in a capacity we share with a number of other animals. The ability to empathize, to put oneself in another’s place, is necessary if one is to take moral account of the other’s concerns. Humans are not the only animals apparently able to imagine the situation of another, nor are they the only animals who act altruisti­ cally toward nonrelated beings. Sympathy springs from empathy. We see this in small human children, although they are not moral agents. Once more, the dilemma for opponents of nonhuman animal rights surfaces: If moral agency is thought to be required for the possession of basic moral rights, quite a large number of humans would be morally insignificant. If we make no such requirement, the moral significance of a large number of nonhumans cannot be excluded. In dealing with one another, moral agents take sen­ tience, the ability to experience pleasure and pain, to be highly relevant to moral decision making. When we con­ sider the consequences of our actions for others, we take account of their preferences, their goals, and whether they can care about what happens to them. Neurophysiological evidence indicates that all vertebrates are sentient; that all beings with limbic systems (i.e., all mammals) are capable of emotion; and that adult mammals, at least, are able to act purposefully. If the characteristics mentioned are morally relevant, are there any conclusions that could be drawn about the attribution of basic moral rights to nonhumans?

Human and Nonhuman Rights: Three Possible Positions It is plausible to hold that moral rights should be related to the capacities certain beings might have. Rocks can hardly be said to have a right to life, and plants cannot be said to have a right to humane treatment. When we consider humans and many nonhuman animals, as we have seen, it is difficult to find a morally relevant capacity shared by all humans and only by humans. In the case of capacities directly related to rationality, we find a differ­ ence in the complexity of the capacity – a difference in degree – among species and among humans. We do not find a fundamental difference in kind that sets humans apart from all nonhumans. With regard to sentience, it is

not even clear that there is a difference in degree. We have no good reason to deny that a cat – or, indeed, a human baby – subjected to strong electrical shock experi­ ences essentially the same pain as an adult human. Three rights positions are consistent with the empirical evi­ dence, as detailed next. Denial of Basic Rights to All If one assumes that nonhumans have no moral rights of any kind, the evidence that humans differ from certain nonhu­ mans in degree but not kind could lead one to deny rights to humans as well. Humans would be devalued to the nonhuman level, according to this view. Experimentation without informed consent, even if it leads to death, would be acceptable for humans and nonhumans alike. Raising and killing humans as well as nonhumans for food, if one has the taste for it, would likewise be permissible. Affirmation of Equal Basic Rights to Humans and Certain Nonhumans One might just as well conclude that humans and the other animals that share morally relevant properties with them are equally morally significant, possessing the same prima facie basic moral rights. Here, we see that certain nonhumans are elevated to the moral level of humans. An equal rights position is compatible with kill­ ing in self-defense, if no other option is open to one. However, if a moral agent respects a being’s right to life and that being poses no threat, he or she cannot rightfully eat or experiment on that being without consent, even if he or she would otherwise die. The Unequal Rights Position Finally, one can hold that the apparently higher degree to which humans are rational, creative, intelligent, and morally concerned entitles us to more rights than other animals. Sentient nonhumans might have the right to humane treatment, for example, but not the right to life. Another example of an unequal rights position would be the view that sentient nonhumans have a limited right to life, making it wrong for moral agents to kill them frivo­ lously or maliciously, but a right to life that is weaker (i.e., more easily overrideable) than that which humans pos­ sess. For example, if a human needs a baboon liver transplant, the human’s need overrides the life of the baboon, but a hunter who kills a baboon to make ash trays out of its hands would be violating the baboon’s right to life. The thoughtful and humane sacrifice of nonhumans for humans’ sake would be morally justified, respectful but cognizant of differences in moral signifi­ cance. As previously discussed, the unequal rights position has become increasingly popular in many circles.

Animal Rights

Let us now turn to the philosophical debate on these three rights positions.

Determining the Basis of Moral Rights Although he is a utilitarian rather than a rights theorist, Peter Singer made the following powerful point in his early writing on animal liberation. Our decision about who is entitled to such rights should not be based on morally irrelevant characteristics. Historically, powerful humans have assigned rights on the basis of race, gender, sexual orientation, religion, ethnicity, ideology, class sta­ tus, wealth, and the like. These are classic forms of bigotry. If two individuals differ primarily in terms of race, gender, etc., they should not be treated differently morally. This does not mean that they should be treated in identical ways; for example, only adults can have autonomy rights. Singer puts it this way: The individuals’ interests – that is, their primary goals, such as life and well-being – should receive equal consideration (assum­ ing, of course, that those interests do not include the violation of others’ rights). Let us assume for now that living humans have the same basic moral rights. What could justify the ascription of these rights to them? Several different proposals have been made. As we progress through the proposals, the boundaries of moral consideration increase. Moral Agency Linked to the Concept of Rights It has been argued that only those capable of compre­ hending and making justified claims against others can meaningfully be said to have moral rights themselves. Political philosopher Carl Cohen and others have held that it is literally unintelligible (i.e., self-contradictory) to ascribe rights of any kind to beings who are not partici­ pants (for good or ill) in the moral community. Saying that beings who are not moral agents have moral rights is as incoherent as saying that bachelors have wives. As we have seen, nonhumans fall short of moral agency; there­ fore, Cohen concludes, rights are ‘‘necessarily human.’’ This argument makes short work of the animal rights position, but it fails the test of plausibility. It implies that supporters of nonhuman animal rights are massively con­ fused about language, which is a doubtful claim at best. Even if there is a concept of moral rights that entails the moral agency of rights bearers, this can hardly be the only concept. Beings with welfares, like infants, can sensibly be said to have the prima facie right not to be harmed. Were it literally self-contradictory to make such a claim, there would be no competent users of the language who would do so. In the face of the definitional move’s implausibility, one could try to argue instead that only moral agents are

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justifiably members of the moral community, which encompasses everyone qualified for moral consideration. Thus, a normative claim replaces the dubious definitional claim. Supporters of nonhuman animal rights would no longer be portrayed as contradicting themselves; they would simply be taking an unjustified position. Despite being an improvement on the first argument, however, the normative link between moral agency and moral rights is also implausible. Although it is highly relevant to the issue of moral responsibility to ask if a killer was capable of understanding the gravity of the deed, one may well wonder why moral agency should be thought to be necessary for moral significance. Again, if this were the case, babies, older children, psychotics, and other men­ tally disadvantaged humans would possess no moral rights. Finally, then, it is evident that the moral agency argument for rights actually contradicts the assertion that living humans – not just some of them – have basic moral rights. (As we shall see, however, some opponents of nonhuman animal rights are willing to accept this implication.) Rights Linked to Higher Intelligence One might hold that humans are more morally significant than nonhumans because their higher intelligence makes their lives more intrinsically valuable. Intelligence is not denied to other animals, but its lesser degree (as far as is known to us) is held to warrant either the denial alto­ gether of basic moral rights to nonhumans or the attribution of fewer basic moral rights to them than to humans. The latter position is identical to the ‘unequal rights’ view discussed previously. What reason can be given in favor of such a view? It may seem self-evident that greater intelligence leads to greater moral significance. After all, it results in a more complex life, a more variegated hierarchy of preferences, and an altogether richer way of experiencing and influen­ cing the world. Such a life has more value in itself, one might hold, than the far simpler existence possible for the less aware. On the other hand, one might well be suspi­ cious of the high value we place on a characteristic that is so closely linked to our species. This can hardly be called a disinterested point of view. Although this observation does not show the higher intelligence proposal to be false, it does shake one’s confidence in its alleged self-evidence. One’s confidence is further shaken by the following consideration. Anyone who believes that all living humans have basic moral rights unmatched by any that nonhumans might possess must reject this account of the basis of those rights. If one’s degree of intelligence largely determines one’s moral significance, some nonhuman animals would be more significant morally than some members of our own species. Chimpanzees, even dogs or cats, are more intelligent than some unfortunate

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humans. Moreover, the view implies that more intelligent humans would possess more rights, or stronger rights, than those who are less well endowed mentally would posses. This implication has been accepted by some, most notably Friedrich Nietzsche (1844–1900), but it is not a position that can consistently be held by advocates of equal (basic) human rights. Rights Linked to Humanity One can, to be sure, retreat to the position that all and only living humans have basic moral rights precisely because they are human. This is the standard anthropo­ centric view. The difficulty raised by such a view, as Singer pointed out, is arbitrariness. Why should the char­ acteristic of being human be any more relevant morally than being white or male? Anthropocentrism is a variety of speciesism. Speciesists think it is morally permissible to discrimi­ nate between two otherwise similar individuals who differ in terms of species membership. The term was coined by Richard Ryder and popularized by Singer, who characterizes it as bias toward one’s conspecifics and against individuals belonging to other species. Speciesism, thus construed, is no more defensible than racism or sexism. James Rachels terms this position ‘‘unqualified speciesism.’’ Can the humanity proposal be buttressed by a more defensible concept of specie­ sism? Rachels distinguishes ‘‘qualified speciesism’’ from its prejudicial cousin. A qualified speciesist holds that species membership, in itself a morally irrelevant prop­ erty, is correlated with characteristics that are morally relevant. But do all humans possess morally relevant characteristics lacked by all nonhumans? The findings of ethology and moral psychology, as discussed pre­ viously, suggest a negative answer to this question. Rachels arrives at this answer himself, concluding that human and nonhuman characteristics overlap instead of being mutually exclusive. Other attempts have been made to show that species membership can be a morally relevant characteristic. In particular, it has been argued that any members of a species whose typical adults are moral agents should have full moral rights, even if they themselves are incap­ able of moral agency. Thus, a mentally handicapped human could be accorded maximum moral significance while a mentally equivalent chimpanzee would be denied it – without prejudice. Moreover, a nonhuman that is more intelligent than a human could justifiably have its organs harvested to save the life of that human, other things being equal, so long as its species – unlike the human species – is not characterized by moral agency. Attributing full basic moral rights to moral agents is not controversial, given one of our standard concepts of moral rights. However, how can advocates of this variety

of qualified speciesism justify the extension of those rights to beings who are not moral agents, although they belong to moral-agency-characterized species? Various defenses of this extension have appealed to charity, potential, mis­ fortune, kinship, and the like. Each such argument has been strongly challenged. Unless a case can be made for according moral rights on the basis of membership in a species characterized by moral agency, regardless of one’s own capacities, this version of speciesism also fails to account for human rights.

Rights Linked to Sentience The search for a lowest common denominator to justify the ascription of equal basic moral rights to living humans leads one to the sentience proposal. Singer originally suggested sentience as the basis of moral consideration, although not of rights because as a utilitarian he rejects that concept. (However, he soon thereafter qualified his view to assign greater moral significance to a subset of sentient beings: self-conscious beings. Because the latter have more preferences, they could contribute more to aggregate utility. Singer’s revised proposal is subject to the same objections lodged against the higher intelligence proposal as well as to those objections made against uti­ litarianism.) Sentient beings are capable of having experiences and preferences, and they seem able to care about what happens to them, on however primitive a level. If we accord basic moral rights to them on this basis, consistency requires us to include all sentient beings within the sphere of moral consideration, regardless of their species. Moral agents should not deprive other sen­ tient beings of life or well-being if self-defense does not demand it or if those beings’ own best interests are not served by such actions (euthanasia, for example, might be in a being’s best interests). Any human who is not irreversibly insentient would have maximum moral significance on this view; as would any such nonhuman. (Note that if a case can be made for the moral relevance of potential sentience, moral signif­ icance would also be attributable to pre-sentient fetuses. It is beyond the scope of this article to pursue this issue.) It is unlikely in the extreme that bacteria and sponges, for example, are sentient, and it is overwhelmingly prob­ able that mammals and birds are sentient; indeed, it is probable that all vertebrates are sentient. Other animals are far less likely to be sentient. Empirical science is the best guide to which beings are probably capable of hav­ ing experiences. The sentience proposal forces anthropocentrists to examine their moral consistency. If living humans who are not irreversibly incapable of having experiences have equal basic moral rights, then so do many nonhuman animals.

Animal Rights

Two Arguments for the Rights of Sentient Beings It does not follow from these arguments that sentient beings are therefore due moral rights. One may attain consistency by simply rejecting the view that all humans have basic moral rights, attributing rights to some humans only and to no nonhumans. The higher intelligence proposal thus res­ urfaces in an unabashedly nonanthropocentrist manner. Proponents of nonhuman, let alone human, rights need to move beyond appeals to consistency and offer positive non­ speciesist arguments for the ascription of basic moral rights to sentient beings.

Regan’s Appeal to the Criteria for a Satisfactory Moral Theory Tom Regan, author of the classic The Case for Animal Rights, is the father of animal rights theory. He argues that a satisfactory moral theory must be consistent, have an adequate scope, be precise, be simple, and must con­ form to our reflective intuitions about rightness and wrongness. He holds that nothing less than his view, which attributes basic moral rights to ‘‘subjects-of-lives,’’ qualifies as a satisfactory moral theory. Here, Regan joins Singer in according moral significance to beings with interests expressed by preferences, even as he departs from Singer in making the case for our according moral rights to each such being. Subjects-of-lives have beliefs and preferences, even if only on a rather low level: Clear cases, he holds, include normally developed mammals of at least 1 year. According to Regan, all subjects of lives, regardless of their varying mental capacities, have ‘‘equal inherent value’’ (i.e., equal moral significance), and that value requires moral agents to accord them maximum respect. In short, all of them, independently of their species and their value for moral agents, have equal basic moral rights. Regan argues that alternative moral theories fail to satisfy one or more criteria for a satisfac­ tory moral theory, unlike his own rights view. Utilitarianism is rejected because of its clash with our considered intuitions about rightness and wrongness, anthropocentrism is dismissed as groundless, and views connecting higher moral significance to higher intelli­ gence are shown to clash with our intuitions that children and the mentally disadvantaged are no less important than normal adults. Regan’s opponents have responded that he has biased the case against them by including the highly subjective intuition criterion, how­ ever reflective those intuitions may be. Those willing to accept devalued rights for less intelligent humans (and no significant rights for nonhumans) will be unmoved by the argument.

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The Appeal to the Preconditions of Agency Evelyn Pluhar has offered another way of making a case for the rights of beings with preferences, even if they are not capable of moral agency, which is as follows. Philosopher Alan Gewirth provides the inspiration for the theory, although he would not endorse its extension to nonhuman animals. The following argument pertains to any being capable of acting to achieve goals (i.e., to any agent). Its conclusion is in keeping with Aristotle’s tele­ ological emphasis and Singer’s principle of the equal consideration of interests, but it is firmly rooted in moral rights theory. Agents by definition act intentionally (i.e., purposefully); they seek goals. To act purposefully requires that one values the goal pursued. General goals pursued by agents qua agents are life, health, and some qualities of life. Fundamental to achieving these are the basic goods of freedom and well­ being, without which action cannot occur. Agents capable of reflection and of linking the goal with what is needed to achieve the goal must hold that others should not interfere with their freedom and well-being. Otherwise, agents would contradict themselves, holding both (1) ‘‘I must have freedom and well-being’’ and (2) ‘‘Others are permitted to deprive me of them.’’ Thus, they claim the basic right of noninterference, and their justification for doing so is the very fact that they are agents. Now, the next step is that consistency requires agents to extend the same right of noninterference to other agents, who have the same justified claims to make against them. The rights claim is thus universalized, obligating agents to respecting one another’s freedom and well-being. Empirical psychological and ethological evidence supports the conten­ tion that numerous nonhumans and humans are agents, even though they may not be capable of the abstract conceptual thought required for moral agency. However, what about humans and nonhumans who have desires and needs, as agents do, but who are unable to fulfill their desires on their own? Individuals who are too young or too physically or mentally impaired to be agents still have desires and needs that they want satisfied (e.g., food, water, warmth, shelter, and love). They are sentient. The fact that they cannot achieve these goals on their own does not mean that they have no rights: It means that they need more assistance than nonin­ terference. Babies, children, the severely mentally disabled, the insane, and the senile are sentient nonagents. So are some very young and relatively simple nonhuman animals. If reflective agents must, to be consistent, accord rights to others with desires they want to have fulfilled, all sentient nonagents who have preferences should likewise have rights accorded to them. Two defenses of a rights theory that encompasses sentient humans and nonhumans have now been offered. Some critics have targeted the conclusion each reaches as flawed, as we shall now see. Two such objections and replies to them shall now be considered.

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The Predation Objection Environmental ethicists have charged that the sentience proposal for rights would obligate moral agents to protect the rights of prey as well as predators in the wild. If prey and predators are all rights bearers, this gives moral agents contradictory obligations: Whose rights should prevail? Regan has replied that nonhuman predators, because they are not moral agents, do not violate the rights of their prey. Noninterference is required on our part if we are to avoid violating the rights of wolves or rabbits. Therefore, moral agents such as ourselves have no general obligation to assist the prey, which are in any case evolutionarily equipped to fend for themselves, but we do have the general obligation to refrain from interfering in preda­ tor–prey relations.

The Feminist Objection Feminist ethicists and ecofeminists have raised a more fundamental objection. They hold that any rights view, whether anthropocentrist or not, entails that logic, impar­ tial justice, and individualism trump emotions (especially caring), partiality, and the community. According to these critics, the first three qualities are quintessentially male, whereas the last three are feminine. Thus, rights theories are rejected as patriarchal. Regan and others have replied that the feminist-based objection is as biased as any patriarchal view, albeit in the opposite direction. Moreover, putting reason and justice in opposition to emotion and caring commits the fallacy of false dilemma. Logic and consistency can and should go hand in hand with empathy and sympathy.

Conclusion: Implications of the Rights View for Nonhuman Animal Treatment If all sentient beings have basic moral rights, many of the ways in which humans routinely treat nonhumans are morally wrong. Inhumane treatment of nonhumans on factory farms, in laboratories, and in the wild would not be permissible. Human moral agents would not be entitled to treat any sentient being, no matter how huma­ nely, as a mere means to their own ends. If it is wrong to confine and harm or kill humans for food, research, or product testing, it would be equally wrong to so treat sentient nonhumans. Conversely, if it were ever accepta­ ble to kill a human being, as in a case of self-defense, it would be equally acceptable in those circumstances to kill a sentient nonhuman.

Currently, animal rights activists are debating about the best strategies to pursue in order to change the traditional uses of animals. Opponents of nonhuman animal rights are fighting such attempts philosophically and politically. Each side needs to take the others’ argu­ ments very seriously because a great deal depends on who is correct. See also: Abortion; Anthropocentrism; Animal Research; Autonomy; Discrimination, Concept of; Environmental Ethics, Overview; Feminist Ethics; Fetus; Human Rights; Racism; Rights Theory; Sexism; Speciesism; Utilitarianism.

Further Reading Aquinas T and Rickaby J (2006) Of God and His Creatures: An Annotated Translation of the Summa Contra Gentiles of St. Thomas Aquinas. Whitefish, MT: Kessinger. Aristotle (1941) The Basic Works of Aristotle (McKeon R, trans.). New York: Random House. Bentham J (1945). Introduction to the Principles of Morals and Legislation. New York: Columbia University Press. Bekoff M (2007) The Emotional Lives of Animals. Novato, CA: New World Library. Cohen C (1986) The case for the use of animals in biomedical research. New England Journal of Medicine 315: 865–870. Descartes R (2007) Discourse on Method (Kennington R, trans.). Newburyport, MA: Focus. Gewirth A (1978) Reason and Morality. Chicago: University of Chicago Press. Griffin D (1992) Animal Minds. Chicago: University of Chicago Press. Hauser M (2007) Moral Minds: The Nature of Right and Wrong. New York: HarperCollins. Kant I (1981) Grounding for the Metaphysics of Morals (Ellington J, trans.). Indianapolis, IN: Hackett. Pluhar E (1995) Beyond Prejudice: The Moral Significance of Human and Nonhuman Animals. Durham, NC: Duke University Press. Rachels J (1990) Created from Animals. Oxford: Oxford University Press. Regan T (1983) The Case for Animal Rights. Berkeley: University of California Press. Regan T (2001) Defending Animal Rights. Urbana: University of Illinois Press. Singer P (1975) Animal Liberation. New York: Avon.

Biographical Sketch Evelyn Pluhar was born in Harlan, Kentucky. She received her B.A. with Honors in Philosophy from the University of Denver. She received her Ph.D. in Philosophy from the University of Michigan. She is Professor of Philosophy at The Pennsylvania State University, Fayette Campus. She has received three Excellence in Teaching Awards, including the 2009 George W. Atherton Award for Excellence in Teaching. She has also received three Excellence in Research and Scholarship Awards. Her research specialty is moral theory. She has authored more than 30 scholarly articles, contributed to many books, and is the author of Beyond Prejudice: The Moral Significance of Human and Nonhuman Animals.

Anthropocentrism L Goralnik and M P Nelson, Michigan State University, East Lansing, MI, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Biocentrism The ethical belief that all living individual beings have moral value as ends in themselves, rather than as means to human ends. Ecocentrism The ethical belief that both individuals and whole ecosystems, watersheds, species, the biotic community have inherent value as ends in themselves. Zoocentrism The ethical belief that some animals warrant moral consideration as ends in themselves, rather than means to human ends. Ontological In ethics, having to do with how we understand the reality of the world, issues of what things are, how they act, and in what ways they impact other things. Intrinsic Value rooted in a thing’s very existence; value because a thing is, not because it provides something to anyone or anything else. Moral community The description of entities that are granted moral standing as ends in themselves. Holistic The ethical belief that all things are part of larger collectives, which in turn demonstrate qualities that are different as a whole than if the qualities of the individuals within were combined.

Anthropocentrism: What is it? Anthropocentrism literally means human-centered, but in its most relevant philosophical form it is the ethical belief that humans alone possess intrinsic value. In con­ tradistinction, all other beings hold value only in their ability to serve humans, or in their instrumental value. From an anthropocentric position, humans possess direct moral standing because they are ends in and of them­ selves; other things (individual living beings, systems) are means to human ends. In one sense, all ethics are anthropocentric, for arguably humans alone possess the cognitive ability to formulate and recognize moral value. This agency places humans at the center of whatever ethical system we devise, and this moral reality drives some scholars to claim that anthropocentrism is the only logical ethical system available to us. But many other scholars argue this circumstance is an ethically uninter­ esting fact, not a limiting factor in the type of ethical system we devise to help us determine good and bad,

Utilitarianism The ethical theory that believes an act is right if it results in the greatest good for the greatest many; right action determined by the action’s consequences. Deontology The ethical theory that believes one has a duty and an obligation to act morally according to predetermined moral norms; right action depends on the moral intentions of that action. Speciesism Discrimination against another species based on the fact that its members are not human. Sentience The ability to feel both pleasure and pain, the quality of being able to experience suffering. Emergent A quality that emerges from something complex (a system, a whole) that does not reside in any of its more simplified individual components either in isolation or in addition; emergent properties arise in relationship, rather than in combination. Ecofeminism The theoretical philosophy and activism that brings together feminism and environmentalism in order to respond to the shared logic of domination that underlies and allows for the discrimination of women and the degradation of nature, as well as all other forms of hierarchical relationships.

right and wrong. We can accept the limitation of our human lens and still make choices about where we find value in the world. Because we are moral agents, the same cognitive ability that allows us to see the world in comparison to ourselves also allows us to treat with respect, or value as ends in themselves, other things. We can refer to this conception of a human-centered world in which human cognition determines our ethical approach as ontological anthropocentrism. Alternately, the definition of anthropocentrism that understands humans as the sole possessors of intrinsic value is ethical anthropocentrism. But not all ethical anthropocentrism is the same. From this perspective, one can either view humans in isolation and disregard nonhuman relationships as unim­ portant for decision making, what we will call narrow anthropocentrism, or one can understand humans in an ecological context, as embedded in and dependent upon myriad relationships with other beings and systems, what we will call enlightened, or broad

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anthropocentrism. Ethical anthropocentrism is often a focus in environmental ethics discussions, which unpack our valuation of the natural world in an effort to deter­ mine how we ought to live in relation to that world. What do we value in nature (and how do we define nature), why do we value it, and how are these valua­ tions manifest? In this way, environmental ethics discussions are central to environmental policy and decision making, whether motivated by ethical anthro­ pocentrism or by some more inclusive theory. Perhaps because of the similarity of the words, ‘anthro­ pocentrism’ is often confused with ‘anthropomorphism,’ the act of imbuing nonhuman entities with human char­ acteristics, such as square sea sponges that sing, dance, and emote just as human characters would. While mixing the two words might be a simple linguistic error, this confla­ tion might also betray more interesting ethical parallels. For in the same way that ontological anthropocentrism highlights the limitations of our experience, anthropo­ morphism often demonstrates the human storyteller’s attempt to create sympathetic characters that communi­ cate and participate in relationships in the only way the storyteller fully understands, as a human, even if these character lives do not reflect ecological reality. Similarly, many ethicists would argue that narrow anthropocentrism responds to a world that does not exist, because it does not reflect the complex ecological relationships that define and sustain humans. Hence, while both anthropomorph­ ism and narrow anthropocentrism reflect an invented reality, anthropomorphism might also be seen as an attempt to remedy a moral shortcoming by allowing us to relate to nonhuman nature. Similarly, anthropocentric thinking is sometimes con­ fused with anthropogenic action, human-caused effects on the world. But this mistake, too, might be more ethically interesting than one initially recognizes. Environmental thinkers might argue that anthropocentrism is the root of many of our current, anthropogenic, environmental pro­ blems, including issues of climate change and widespread pollution. In fact, some would argue that the origins of environmental philosophy itself lie in our reactions to anthropocentric thinking, filtered through reductionist science, which has defined the Western religious worldview since the Renaissance. The relationship between religion, science, and the environment is the central theme of the seminal essay in environmental ethics, ‘‘The Historical Roots of Our Ecological Crisis’’ by Lynn White Jr., which articulates a link between ethics and ecological degradation. White examines the Judeo-Christian worldview and its impact on the human–nature relationship, then traces a flawed relationship with the natural world to an interpretation of Genesis in which God gives man the natural world for his use. According to White, our anthropocentric relationship with the natural world is responsible for our current environmental crisis;

therefore to mend our ecological problems we must reexamine our worldview, or our religious interpreta­ tions. ‘‘What we do about ecology depends on our ideas of the man-nature relationship,’’ (White, 1967: 1205) White explains. ‘‘More science and more technology are not going to get us out of the present ecologic crisis until we find a new religion, or rethink our old one’’ (White, 1967: 1206). Using the example of St. Francis of Assisi and his ‘‘humility – not merely for the individual but for man as a species,’’ White calls for a more inclu­ sive moral community. Ethicists have since taken on his challenge by defining and defending this community in a series of nested responses about who and what might matter morally, and why. So what role does anthropocentrism play in a discus­ sion about environmental ethics beyond its place as the other against which proper environmental ethics are defined? If environmental ethics arose in part as a response to the call for a more inclusive moral commu­ nity, then how can a traditionally human-centered ethic answer this call? In order to address this question, we need to explore some nuanced versions of anthropocentrism that have arisen in response to environmental issues, as well as become acquainted with nonanthropocentric ethi­ cal systems (Table 1).

Anthropocentrism as an Environmental Ethic In his 1974 book, Man’s Responsibility for Nature, John Passmore establishes himself as an early and prominent anthropocentric environmental ethicist. In reaction to philosophers pushing for the creation of more inclusive moral systems, Passmore asserts that rather than devise a new ethic, what we need is stronger interpretation of our existing ethical obligations. Moreover, Passmore dis­ misses claims that it would be ‘‘intrinsically wrong to destroy a species, cut down a tree [or], clear a wilderness’’ as ‘‘merely ridiculous’’ (Passmore, 1974: 111). These views build toward his central idea, ‘‘the supposition that any­ thing but a human being has ‘rights’ is [. . .] quite untenable’’ (Passmore, 1974: 187). Passmore’s views define narrow anthropocentrism, which is characterized by an embrace of traditional human-centered ethics that isolate humans from the environment. Narrow anthropocentrists believe humans alone possess value; human efforts on behalf of nonhuman nature are driven by a desire to serve human needs. Other anthropocentric environmental ethicists include Kristen Shrader-Frechette and William Frankena, who wonder why we would need a new, more inclusive ethic when we have access to centuries of theoretical philoso­ phy we can apply to environmental issues. The problem, Frankena and others believe, is that we do not currently

Table 1 Environmental ethical frameworks, defining ideas, major thinkers, and common critiques Ethical system

What counts?

Major thinkers

Some concerns

Anthropocentrism

Humans only

�

Traditional ethics: most thinkers located the basis for ethics in human ability to reason and cognitive abilities: Aristotle, Mill, Kant � Modern ethics: John Passmore, William Frankena, Kristen ShraderFrechette, Don Marietta; pragmatists such as Ben Minteer, Bryan Norton, Eugene Hargrove, and Andrew Light prefer to discuss ethics in a way that appeals to the wide public and policy-makers, who are generally swayed more effectively by anthropocentrist rhetoric

Anthropocentric ethics and reductionist science are often blamed for the worldview that has allowed the environmental crisis in the first place. If only humans matter morally, and if all other beings and systems have only instrumental value for humans, then we have little reason to care about or treat other beings with respect unless we serve to benefit from this respect. A nuanced anthropocentrism would argue in response that ecologically humans are dependent upon and embedded within all other beings and systems, therefore making decisions that are good for humans will inevitably also serve all other elements of the environment as well. Membership in the moral community requires the possession of particular traits, which thus draws the boundaries at sometimes arbitrary places based on current scientific knowledge, e.g., if membership relies on sentience, only animals we know can experience pain and pleasure belong, while others we do not (yet) have the tools to understand remain valuable only instrumentally; some argue that the boundaries established through this lens are not wide enough. Welfarists might respond that we cannot recognize the experience of a thing we do not or cannot know or understand. The widest extension of traditional individualistic ethics casts a wide net, but isolates the individual living being from its context, therefore excluding wholes – ecosystems, habitats, the biotic community – from the moral community. How can a being exist without its context, and is it the same being if it is separated from the relationships that define it? Biocentrists argue that wholes are no more than a collection of individuals.

�

Narrow

Humans in isolation

�

Broad

Humans in ecological context

Zoocentrism

Some animals, based on shared human traits (such as sentience)

Peter Singer, who advocates a utilitarian (Bentham, Mill) approach for animal liberation, and Tom Regan, who argues for animal rights, a deontological (Kant) approach

Biocentrism

All living individuals, membership qualification is only that a thing must be alive

Kenneth Goodpaster and Paul W. Taylor

(Continued )

Table 1 (Continued) Ethical system

What counts?

Major thinkers

Some concerns

Ecocentrism (holism)

Individuals and wholes count

Aldo Leopold, J. Baird Callicott, Val Plumwood, Freya Mathews, Kathleen Dean Moore, Arne Naess and the Deep Ecologists, James Lovelock

Universal consideration

Everything might matter morally, therefore we ought to consider organic individuals and systems, as well as inorganic objects, such as rocks and mountains

Thomas Birch

Collectives exhibit emergent properties that allow the whole to be greater than the sum of its parts. With the inclusion of wholes into the moral community, some critics worry that the individual loses standing in matters of ethical conflict. Do species matter more than individuals? Do the needs of society overwhelm the rights of individuals? Proponents of ecocentrism would point out that individuals and collectives are both included in the moral community through this lens, and that communities rely on individuals to thrive. If everything counts, how do we organize our lives in order to act in ways that demonstrate this valuation of the world? How do we approach conflicts, or even survive, if the very act of survival requires impacts on our world and other beings? Birch would argue that this system does not grant entrance into the moral community, rather a reconsideration of all things in context.

Anthropocentrism

employ traditional ethics in competent ways; greater attention to the practice of traditional philosophical dia­ logue is necessary and sufficient for addressing our current ethical concerns. Introducing another distinction, Bryan Norton differ­ entiates between narrow anthropocentrism and what he calls weak anthropocentrism, or broad anthropocentrism, as we will refer to it here, which aims for humans to live in ‘‘harmony with nature.’’ While nonhuman nature is still valued only in its relation to humans, this value may take forms other than the instrumental, such as aesthetic, educative, or restorative. Rather than bother with a new theory, Norton suggests, we simply need constraints on traditional anthropocentric behavior to prevent consump­ tive habits. Broad anthropocentrism ‘‘requires no radical, difficult-to-justify claims about the intrinsic value of non­ human objects and, at the same time, it provides a framework for stating obligations that goes beyond con­ cern for satisfying human preferences’’ (Norton, 1984: 138). Scholars who adopt this view believe it represents an ethic that is both effective and comfortable to employ, a goal that leads to what might be the most common representation of environmental anthropocentrism: envir­ onmental pragmatism. This enlightened or broad anthropocentrism, recog­ nizant of the reality and importance of our ecological relationships, emerged in its current form with the con­ vergence hypothesis of the same Bryan Norton. While variations within environmental pragmatism exist, mostly surrounding a scholar’s adherence to the ideas of the founding American philosophical pragmatists (Dewey, Peirce, and James) and/or emphasis on envir­ onmental policy, most pragmatists believe that environmental change requires active solutions to cur­ rent problems, and that the human population responds best to human-centered language. We ought not get entangled in theoretical dialogue, they suggest, but should focus instead on real answers. Pragmatists argue that when ecologically informed anthropocentric responses lead to the same policy implications as those recommended by a nonanthropocentric ethic, then we should use anthropocentric language to propose change, because more people might listen. Therefore, our jour­ ney to an answer is less important than the actual behavioral changes we promote. Norton argues, ‘‘active environmentalists [. . .] believe that policies serving the interests of the human species as a whole, and for the long run, will also serve the ‘interests’ of nature, and vice versa’’ (Norton, 1991: 240). Andrew Light, Eugene Hargrove, and Ben Minteer also embody this view to some degree. Another popular form of broad anthropocentrism arises not from policy, but from science. Don Marietta endorses a version of traditional humanism that is holistic, or demonstrative of the value and necessity of scientific

149

wholes (species, ecosystems, the biotic community) in the lives of humans. By this, Marietta means a nuanced anthropocentrism that embraces the value of our ecolo­ gical relationships, for it is impossible to isolate humans from their network of relationships, but one that still applies traditional ethical techniques. Finally, some scholars defend anthropocentrism as the ethic that best embraces human creativity and innovation to address issues that are impacting humans. Biologist W.H. Murdy writes, ‘‘It is anthropocentric to value the factors that make us uniquely human, to seek to preserve and enhance such factors and to counter antihuman forces which threaten to diminish or destroy them. Nature out­ side of man will not act to preserve human values; it is our responsibility alone’’ (Murdy, 1975: 1171). As a scientist, Murdy also believes in a continued understanding of the ecological relationships in which we participate. But, Murdy continues, ‘‘[a]n anthropocentric belief in the value, meaningfulness, and creative potential of the human phenomenon is considered a necessary motivating factor to participatory evolution which, in turn, may be requisite to the future and survival of the human species and its cultural values’’ (Murdy, 1975: 1172). The impli­ cation here is that people will act for themselves in ways that they might not act on behalf of nonhuman nature. This view depends upon, of course, whether people really act this way. Scholars who study environmental values, such as Steven Kellert, have long conducted surveys to analyze the ways people value nonhuman nature, and this kind of social scientific work has the potential to over­ throw or verify the anthropocentric assumptions some philosophers embrace. We must ask, though, if we sacrifice anything else when we look beyond the moral context of our intentions and focus only on the potential consequences of our actions, or when we choose an anthropocentric over a nonanthropo­ centric approach, even if the end result is the same. Is there something important about the reasons we are motivated to act? Unpacking some of the nonanthropocentric ethical systems will provide us the tools to address this question (Figure 1).

The Other Lenses: A Wider Moral Community Early approaches to a more inclusive environmental ethic applied traditional ethical systems – utilitiarianism (Mill, Bentham) and deonotology (Kant) – to situations early thinkers did not imagine. In these systems, value is attrib­ uted to recipients (traditionally humans) based on qualities they alone are thought to share. Utilitarianism defines the moral community by members’ ability to experience pleasure and pain. An action is thought to be right if the consequences of the action will result in

150 Anthropocentrism

Universal consideration Ecocentrism (Holism)

Biocentrism All or some (that qualify by possessing particular qualities shared with humans) living individual beings count morally

Everything counts morally, organic and inorganic, systems and individuals

Individuals and wholes matter morally; everything is connected, therefore cannot talk about individuals out of context

Anthropocentrism

ONLY humans belong in the moral community; all other beings and wholes matter for their instrumental value to humans

Figure 1 Moral community expansion across prominent theories in environmental ethics.

greater utility than would result if some other action, or no action, were performed. It is, therefore, a resultsfocused or consequentialist ethic. Kant’s deontology, on the other hand, focuses on motivation and intentions rather than consequences. In this ethic, the key to the moral community lies in cognitive ability and reason; we have a duty to respect the rights of certain others who possess these same abilities and we have an obligation to act morally (e.g., not to lie, steal, or cheat), according to moral norms. The difference between utilitarianism and deontology becomes elucidated with an example. Based on a traditional utilitarian ethic, one could theore­ tically justify framing an innocent person to alleviate the collective stress of a community that fears an uncaught burglar, because the good to many would outweigh the harm done to one. A deontological ethic would preclude this approach because lying (e.g., framing the innocent person) is wrong; regardless of the consequence that lying achieves, the act is immoral. The difference between the two ethics lies in the responsibility of (and to) individual agents versus larger populations, as well as in the emphasis on consequences versus motivation. Traditionally, both ethics were anthropocentric. While the suffering of nonhuman nature was not his­ torically considered in utilitarian equations, Jeremy Bentham, the founder of modern utilitarianism, suggested animal inclusion with his now-famous admission that animals can also experience pleasure and pain. Thus the door was open for an extension of utilitarianism to animal ethics. In 1975, Peter Singer assessed the blurred

physiological and psychological lines between humans and some animals and asked why we should recognize human pain alone; he wondered if, in fact, it was arbitrary, capricious, and ultimately immoral to do so. If animals are capable of suffering (and clearly many, if not all, are), and if the ability to suffer is the key to moral consideration (which is exactly what utilitarians assert), then why does this suffering not matter morally? He calls this exclusion from the moral community of beings that should qualify by our expressed standards, but are excluded solely on their failure to be human, speciesism. By extending moral standing to sentient beings, Singer introduced what is often referred to, along with the animal rights theory of Tom Regan, as the animal welfare argument. While these two theoretical approaches are quite different, their shared characteristic of extending traditionally anthropo­ centric ethics (utilitarian and deontological traditions) to some animals unite them as the first line of the nonan­ thropocentric moral argument, zoocentrism. Regan approaches animal welfare through a deontolo­ gical lens. Kant’s deontology attributes only indirect moral standing to animals and other beings – a dog matters morally because harming it would impact its owner or because a person who abuses dogs might next abuse humans – and so is clearly anthropocentric. But Regan uses a similar argument, based on the language of rights and obligation, to extend direct moral standing to animals. He examines the qualifications for human inherent value (or worth) and locates the defining char­ acteristic in our role as ‘‘experiencing subjects of a life.’’

Anthropocentrism

He then applies this standard to animals. Because animals are also experiencing subjects of lives – lives that exist beyond their role as a resource for humans – they also ought to be considered possessors of inherent value. All experiencing subjects of a life ought to share the same basic moral rights, the most fundamental of which is the right to continue to exist, or the right to life. Zoocentric arguments rely heavily on Darwin’s asser­ tions in The Descent of Man, which demonstrate that the boundaries between the mental faculties of humans and other species are less clearly defined than traditionally believed, as well as work in the field of cognitive ethology, the study of animal minds. But with the blurring of these previously assumed boundaries and the associated and inevitable moral extension, some scholars wondered why sentience or one’s existence as an ‘‘experiencing subject of a life’’ should be the only qualities that warrant moral standing, or whether these are even the right qua­ lities. As science gives us glimpses into the lives of other beings, we might wonder if perhaps there are levels of pain and pleasure, or even affiliated qualifications of a worthwhile experience, in other beings that we are not yet capable of understanding. These questions woven with a continued reexamination of the type of ethical consis­ tency that underlies the zoocentric argument and a desire to found an environmental, as opposed to a human or extended-human, ethic led to the life-centered theories of Kenneth Goodpaster and Paul W. Taylor. Life-centered environmental ethics, the second line of nonanthropocentric extensionism, is called biocentrism. Kenneth Goodpaster lays the ethical foundation for the moral considerability of all living beings and Paul W. Taylor extends Goodpaster’s argument to its furthest limit. Granting equal moral consideration to all individual living things by virtue of the fact that they are ‘‘teleolo­ gical centers of life’’ and hence have ‘‘a good of their own,’’ Taylor posits and defends a radical biotic egalitarianism. Taylor admits that embodying this equal consideration would be paralyzing; rather he suggests it as an ideal, where as many ‘‘teleological centers of life’’ survive as possible. Though Taylor’s language suggests the inclu­ sion of wholes derivatively, because they are necessary for the good of their members, populations, according to Taylor, are simply a collection of individuals and do not have a good of their own. Some scholars, however, view this restriction of the moral community as ecologically naı¨ve, for no individual can exist outside of its greater context. If possession of a ‘‘good of its own,’’ as Taylor defines it, is the standard of moral inclusion, then does it not make sense to argue that a species has an interest in a healthy habitat or continued existence? As a response to these questions, we see the emergence of an ecocentric environmental ethic, one that grants moral standing to both individuals and wholes – the systems and collectives in which individuals

151

participate and exist. Ecocentrism is often posited against anthropocentrism as the extreme on the other end of the environmental ethics argument. These successively wider boundaries of the moral community aim to respond to scientific observations of the world. If an environmental ethic is to carry weight within policy and decision making, or even as a means to guide people to right action, it needs to reflect the reali­ ties of the actual environment. This awareness of the interconnectedness of the natural world fuels ecocentric theorists like Aldo Leopold, J. Baird Callicott, Val Plumwood, Kathleen Dean Moore, Freya Mathews, the Deep Ecologists (including Arne Naess and others), and those ethically motivated by James Lovelock’s Gaia hypothesis. The central difference between these theories and anthropocentrism lies in the placement of humans in the world. Anthropocentrism locates humans, with their higher cognition and rationality, in the center of the moral universe, capable of both affecting the world around them and making decisions about that world. Ecocentrists, on the other hand, place humans as equals among species, participants in an interdependent world. As Leopold explains in a quintessentially nonanthropo­ centric statement, ‘‘a land ethic changes the role of Homo sapiens from conqueror of the land community to plain member and citizen of it. It implies respect for his fellowmembers, and also respect for the community as such’’ (Leopold, 1949: 204). Ecocentrists argue that wholes exhi­ bit emergent properties not present in the individuals that allow the collective to exist as something different, some­ thing greater, than simply the sum of its parts. This idea is called holism, and while an appreciation of holism defines the ecocentric position, it is also a component of less inclusive ethics. But beyond the recognition of and appre­ ciation for these wholes, ecocentrics grant them direct moral standing, a position defined as ethical holism. Radical holists argue that wholes completely subsume individual entities; therefore, moral standing should extend to wholes alone. More tempered versions of eco­ centrism, like those of Leopold, value both wholes and individuals as ends in and of themselves. At this point, one may wonder if broad anthropocen­ trists, who advocate a scientifically enlightened anthropocentric position, are also holists based on this description. If one accepts that all things are part of larger entities, more difficult to disentangle from their contexts than we have previously appreciated, then by valuing humans would one not also be valuing the web within which humans exist? The difference between interestholistic anthropocentrism and ecocentrism lies in where one locates the ethical starting point for valuation and right action. An enlightened anthropocentrist would approach action and value from the starting place of the human, even if the human is suspended in an ecological context. Wholes have value in their relation to humans,

152 Anthropocentrism

thus matter morally, but secondarily. An ecocentrist would value both wholes and individuals directly. The biotic community is not secondary to the human experi­ ence. It is the holder of value in its own right. Aldo Leopold’s Land Ethic, often embraced as the seed of modern ecocentrism, embodies this thinking. Here Leopold discusses the extension of human rights – from the moral inclusion of some humans to all humans – and then uses this process to explain the inclusion of collectives: The extension of ethics to this third element [the land] in the human environment is, if I read the evidence cor­ rectly, an evolutionary possibility and an ecological necessity. [. . .] All ethics so far evolved rest upon a single premise: that the individual is a member of a community of interdependent parts. [. . .] The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land. (Leopold, 1949: 203–204)

Trained in the anthropocentric policies of land manage­ ment science, not philosophy, Leopold had an awakening experience in which he began to ‘‘think like a mountain’’ and understand that one could not remove predators from a landscape without impacting all other elements of that landscape. We exist in a vast and intimate web of inter­ relationships. This thinking led to his land ethic and modern philosophical ecocentrism. Callicott, a founder of environmental philosophy and leading voice in ecocentric theory, believes an environ­ mental ethic can take two forms. Either it can be a plugand-chug response to environmental problems by insert­ ing an issue into an already formulated ethical theory in order to receive an answer about how to act, an unsatisfy­ ing and unnuanced approach to complex problems. Or, Callicott suggests, environmental ethics can do the hard theoretical work to create a new ethic that responds to the constantly changing understanding of the natural world and addresses new, and large, environmental problems, the likes of which our world has never seen. This is the difference between using the tools of anthropocentric ethics and creating a wholly different approach. He advo­ cates for the latter. In his landmark 1980 essay, ‘‘Animal Liberation: A Triangular Affair,’’ Callicott sets up the animal welfarists not just in tension with traditional moral philosophers who limit the moral community to humans alone, but also in conflict with the ideas of eco­ centrism. For rather than inhabiting different rings in the pond of moral extension, biocentric and ecocentric argu­ ments differ not only in their definition of what ought to belong in the moral community, but in their very under­ standing of the world and how individuals operate within it: either as an interacting collection or as a connected and emergent whole. This three-way relationship, then,

between traditional anthropocentric ethics, early envir­ onmental ethics based on an extension of anthropocentric argumentation to some others (zoocentric or biocentric arguments), and ecocentrism, is triangular, with all three corners pulling in different directions. They are mutually exclusive theories. Callicott argues that an extension of individualist traditional ethics cannot successfully defend the moral inclusion of environmental wholes, and a scien­ tifically relevant environmental ethic cannot fail to recognize the moral standing of systems and wholes. Ecocentrism starts, as its ethical grounding, with the col­ lectives and their ecological and moral relevance. According to Callicott, this element designates ecocentr­ ism as the only effective approach to environmental ethics. Some ethicists push the moral boundaries farther still. Thomas Birch’s theory of universal consideration advocates for a potentially-morally-relevant-until-pro­ ven-otherwise approach, which grants consideration to all things, living and nonliving, with the understanding that all relationships are important and necessary. Not only ought we think about the way things interact in a more thoughtful way, Birch suggests, or be attentive to scientific reality, but we should also approach our inter­ actions with the world with a heightened moral awareness. In this way, Birch represents an extreme oppo­ sition to anthropocentrism.

A Changed Relationship with the Natural World Whether Leopold or Taylor, Singer or Passmore are correct, or even persuasive, is not of great importance here. Rather it is essential to embrace environmental ethics as an evolving dialogue. So where does a discussion about the widening of the moral community carry us in an explication of anthropocentrism? Questions about science and systems of valuation are important when we appreci­ ate the role of ethics in determining action. The ethic that sways us, and our analysis of these theories, depends on how we approach a series of questions. The difference between an anthropocentric and a nonanthropocentric ethic ultimately hinges on what it means to be a human. As humans are we a dominant or an equal species? How do we define the natural world, indepen­ dently and in relation to ourselves, and why do we (or should we) care about it? What is the role of humans in protecting, experiencing, and participating with other beings and collectives? What is the relationship between ecology and ethics? In addition, we need to examine the goals of environ­ mental philosophy. Lynn White Jr. utilizes the language of a crisis that needs address; he invokes a sense of urgency. The problematic ethic that White suggests is

Anthropocentrism

the cause of our environmental crisis requires a revision of our relationship with the natural world in order to be healed. Tied to the notion of an environmental ethic, then, is a call for change, a call to action. Environmental pragmatism has embraced this call, prioritizing action as a guiding principle in ethical dialo­ gue. But will any action serve this revision of our relationship with the natural world? Do intentions matter? Can we respond to environmental issues by engaging whatever language might sway an audience, whether anthropocentric or nonanthropocentric? Or are there rea­ sons we ought to be attentive to the nuances of our dialogue and the ethic that drives our actions? These are important questions in an understanding of and discussion about anthropocentrism as an applied environmental ethic. Addressing them might help guide one’s journey toward a meaningful relationship with, and perhaps even to right action on behalf of, the natural world. In addition, an analysis of these questions leads us to a clearer picture of the path environmental ethics has taken as it has developed. In response to changing environmental issues, globali­ zation, and the inclusion of voices not traditionally included in ethical discussions, new kinds of ethical argu­ ments about our relationship with the natural world have emerged, including ecofeminism (and related ecological feminisms). Though a precise definition of ecofeminism remains unsettled, most scholars would argue that it is both an activism and a philosophy that addresses the nested issues of gender discrimination and environmental degradation. It is the bridging of feminism and environ­ mentalism with the goal of addressing and alleviating all forms of discrimination. These theories critique anthro­ pocentrism based not on what is included in our valuation of the natural world, but on what is excluded from the valuation process – certain voices – and on the power dynamics inherent in this traditional valuation process. Some feminist theorists are concerned with the role played by the traditionally anthropocentric institutions of early science and religion that helped shape our current environmental ethic. In her book The Ecological Self, Freya Mathews traces the rise of individualism, or substance pluralism, and attributes its hold on Western thought to certain culture-defining scientific theories, namely Newtonian atomism, which dictated a wider worldview, which in turn influenced the development of a cultural environmental ethic. Her views about the masculinization of science, or the androcentric bias of Western rational thought and its impacts on our relationship with the natural world, parallel those of other feminist authors, including Val Plumwood, Carolyn Merchant, and Donna Haraway. Mathews believes ‘‘conventional atomistic cosmology as it informs modern western consciousness [. . . is] a ‘bad’ cosmology – representing Nature not as hostile but as indifferent to our interests’’ (Matthews,

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1991: 14). If we view nature as indifferent, then we have set up a dynamic in which we are always at odds. This inherent conflict is detrimental to the well-being of the natural world. It is also representative of the cultural dualisms that concern feminist thinkers, because they operate with what Karen Warren calls ‘‘the logic of domination.’’ A prominent voice in ecofeminism, Warren explains that ‘‘there are important connections – historical, experi­ ential, symbolic, theoretical – between the domination of women and the domination of nature’’ (Warren, 1990: 125). Western thinking has associated women with emo­ tion and natural processes, in contrast to the male realm of logic and the mind. To address this schism, Warren calls for a shift from conquest-driven thinking, which enables a hierarchical relationship with the natural world, to a carebased relationship with nonhuman nature. Some feminist scholars would argue that anthropocentrism, both in its historical roots and in its perpetuation of dichotomies, precludes this type of relationship. Other thinkers wonder even at the logic of a worldview that separates humans from their land context. An examination of a number of indigenous relationships with the natural world demonstrates it would be ridiculous, even impossible, to value some humans without also valuing their land, for the two are so entwined in action and identity that they cannot be parsed. Consider the Ojibwe belief that humans and nonhuman animals are brothers and sisters, or the Aboriginal landscape deities, or the centrality of prey animals in Inuit clothing, food, religion, and social activity. Nonhuman animals and land­ scape features not only tie the people to the land, but inhabit every element of the human experience. An anthropocentric ethic applied to these relationships would be nonsensical, because it would morally recognize only part of a whole, a severance that might even serve to redefine the valued part and make it something other, thus not valuable in the way we intend. Can these land relationships inform a discussion about an ethic to serve a modern Western audience that lacks this same connection to the land? One could argue that this very disconnect between the humans and the land is a result of long-term cultural anthropocentrism, or that it has contributed to our present destructive behaviors toward the natural world. One could imagine an argu­ ment that supported an effort to restore this kind of land identity in order to address environmental problems. In this way, some indigenous relationships could demon­ strate an argument against the value of an anthropocentric ethic. Beyond this question about the logic of anthropocentr­ ism lie graver substantive questions, as well. Some scholars worry that if we abandon a concern with inten­ tions and focus only on results, in the way that we might use anthropocentrism to sell a behavioral change to the

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public, we will sacrifice some important ethical consid­ erations. Despite the ways that anthropocentric and nonanthropocentric viewpoints may converge in action or policy recommendation, there are important ways that they diverge. Katie McShane explains: Ethics legitimately raises questions about how to feel, not just about which actions to take or which policies to adopt. From the point of view of norms for feeling, anthropocentrism has very different practical implica­ tions from nonanthropocentrism; it undermines some of the common attitudes – love, respect, awe – that people think it appropriate to take toward the natural world. (McShane, 2007: 169)

The author refers to the thinking behind Hume’s philo­ sophy of moral sentiments and E.O. Wilson’s biophilia hypothesis. These feelings of love and care emerge in Leopold, and they exist throughout environmental litera­ ture. McShane explains, ‘‘Claims about why something has value are claims about why we, as moral agents, have reason to care about the thing. More precisely, they are claims about why the thing is worth caring about’’ (McShane, 2007: 172). To adopt an ethic that would make these feelings impossible or wrong would be a mistake, she argues; it would alienate a great number of environmentalists from environmental policy and decision making. McShane’s response focuses on what is perhaps an immeasurable quality of the human–nature relationship, while other scholars instead focus on the quantifiable elements of our relationship with the natural world. Anthropocentric views of the environment adapt well to cost–benefit analysis, a version of utilitarianism in which the language of economic gain and loss replaces the language of pain and pleasure; this approach employs the only type of value that makes sense for many people, monetary value. What happens, though, to elements of the natural world that elude monetary valuation? Are only beautiful places valuable because people will pay for them? What about the wetlands that allow the drai­ nage of a so-called beautiful place, but which many people would not pay for? Some people therefore wonder if an anthropocentric ethic can capture the true value of nature. If it cannot, it would fail as a guiding environ­ mental ethic. Surely, though, should we use the language that best serves the environmental change we desire? In a recent conversation with students we raised this question. ‘‘Unless we are preaching to the chorus,’’ they answered, ‘‘we won’t change minds by trying to convince people they should value nature for its own good. People under­ stand a future generations argument, though, and they understand things that might save them money.’’ Thus, we ought to sell nature however we can, because any

change in behavior is better than none. And maybe it is. But in selling a product, which is nature, we might just sacrifice some of the meaning and substance of the very thing we value, in addition to selling ourselves short at the same time. One could project an argument that weighs short-term minor changes against long-term grander changes, and while most environmentalists would likely prefer the big changes, many fear that we need small steps in order to build momentum, and we should take what we can get. In theory, this argument makes sense, but in context, it gets fuzzier. For what is the real societal gain when people make a multitude of insubstantial behavioral changes – e.g., if thousands of low-mpg cars are purchased in a national effort, when the mpg standards are a great com­ promise in the first place, and the real impacts on global warming lie elsewhere – then feel they have done their part to positively effect global climate change. They sit back and feel good, even though these small changes will, in fact, have little to no impact on the larger problems. But the decision-makers, in selling this small change, have arguably exhausted their audience and therefore have lost power, not gained momentum. Rather than influence a changed relationship with the natural world, they might have only stimulated habit alterations, some­ thing different not only in scale, but also in kind, to the lifestyle and ethical changes that many scholars feel are necessary. It is also reasonable to wonder if we limit ourselves by restricting the types of public arguments we make. If we rely only on anthropocentric language because we think it is all people will hear, we might be dwarfing our moral imagination, or precluding other kinds of argumentation in the future, because different language eventually becomes too foreign and uncomfortable. Our concern about the engagement and interest capabilities of the public might confine the individual moral abilities of other thinkers, and perhaps our broader cultural moral fortitude, as well. Do we sell not just the issues, but ourselves, short? Could we instead challenge ourselves to craft more persuasive, more creative arguments that tell the story about nature we believe? Can we, and should we, aim high? Intentions and outcomes both color our relationship with the natural world, and this relationship has great consequences for our world.

Why Our Environmental Ethic Matters Of course, not all anthropocentric arguments are default positions. Many thinkers believe anthropocentrism pre­ sents the strongest, most effective case for our interactions with the natural world. And these arguments can, and do, overlap with nonanthropocentric arguments when they adopt a holistic perspective, one that recognizes the

Anthropocentrism

interconnectedness of all beings and systems. If we care about ourselves and our future, broad anthropocentrists argue, we will act to protect and respect all of the things we interact with, all of the things that we depend upon, and all of the things that sustain us. And ultimately, these are the questions that matter most. What do we value in and about the natural world? What are our roles as valuers and moral agents? How can we best act to honor these valuations? Our answers here can help us navigate ethical discussions about the natural world and can potentially help us create the world we envision and desire. So as we address the environmental issues of our time, we should be conscious of the implications of our language, attentive to how our policies prescribe value in the natural world, and perhaps grateful for the rational power and emotional sensitivity to experi­ ence and manage the natural world for all of these considerations. And then we must ask ourselves: Are we responsible for nature, as Passmore argues, or stewards of sentient beings, as the zoocentrists might suggest? Are we logically consistent when we morally consider some beings and not others, and if not, is there a way to respect all living beings without con­ sidering also the inorganic elements of their habitats and landscapes? Can we consider beings and not the wholes and systems that emerge when a multitude of individuals acts and exists in connection, rather than in proximity? Our understanding of science and ecol­ ogy matters here. If the natural world is balanced and orderly, then we can perhaps make predictions about our actions and projections about the impacts of our choices and the roles of certain others. But if the natural world is instead chaotic and unpredictable, how do we understand these relationships differently? How do we act when we are unsure of the conse­ quences of our actions? With caution? With care? With gratitude? For in our ethical descriptions lie also ethical prescriptions. Why and how we value the natural world ought to dictate how we act on behalf of, and within, the natural world. Anthropocentrism is not just about who matters and why. It is about how we honor that value in relation­ ship. These are the stakes of environmental ethics and the weight of our responsibilities for, in, and to the natural world.

See also: Biocentrism; Consequentialism and Deontology; Deep Ecology; Feminist Ethics; Gaia

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Hypothesis; Intrinsic and Instrumental Value; Pragmatism; Speciesism; Utilitarianism.

Further Reading Callicott JB (1989) In Defense of the Land Ethic. Albany: State University of New York Press. Leopold A (1949) A Sand County Almanac. New York: Oxford University Press. Mathews F (1991) The Ecological Self. London: Routledge. McShane K (2007) Anthropocentrism vs. nonanthropocentrism: Why should we care? Environmental Values 16: 169–185. Murdy WH (1975) Anthropocentrism: A modern version. Science 187: 1168–1172. Norton BG (1984) Environmental ethics and weak anthropocentrism. Environmental Ethics 6: 131–148. Norton BG (1991) Toward Unity Among Environmentalists. New York: Oxford University Press. Passmore J (1974) Man’s Responsibility for Nature. London: Duckworth. Warren KJ (1990) The power and promise of ecological feminism. Environmental Ethics 12(2): 125–146. White L Jr (1967) The historical roots of our ecologic crisis. Science 155: 1203–1207.

Biographical Sketches Lissy Goralnik is a doctoral candidate in the Department of Fisheries and Wildlife at Michigan State University and is an instructor in Lyman Briggs College, the Department of Fisheries and Wildlife, and the Natural Science Department. Interested in the intersection of science and the humanities, her research brings together environmental philosophy, environmental edu­ cation, and nature writing in an effort to understand the connection between a physical and an ethical relationship with the natural world. She holds an MFA in creative writing and works in the field as an environmental educator for the National Outdoor Leadership School.

Michael P. Nelson holds a joint appointment as a professor of environmental ethics and philosophy in the Lyman Briggs College, the Department of Fisheries and Wildlife, and the Department of Philosophy at Michigan State University. He is the coeditor or coauthor of The Great New Wilderness Debate (University of Georgia Press, 1998), The Wilderness Debate Rages On: Continuing the Great New Wilderness Debate (University of Georgia Press, 2008), American Indian Environmental Ethics: An Ojibwa Case Study (Prentice Hall, 2004) (all with J. Baird Callicott), and Moral Ground: Why It’s Wrong to Wreck the World (Trinity University Press, 2010) with Kathleen Dean Moore. He is also resident philosopher of the Isle Royale wolf–moose project, the longest continuous study of a predator–prey system in the world; and cocreator and codirector of the Conservation Ethics Group, an environmental ethics and problem-solving consultancy group.

Appearance, Ethics of I de Beaufort, I Bolt, and S Vandamme, Erasmus Medical Center, Rotterdam, The Netherlands ª 2012 Elsevier Inc. All rights reserved.

Glossary Botoxified society A society obsessed with looking good instead of being good, where the attention for appearance is disproportionally great, appearance is the highest value, and the worship of appearance is almost a religion, with the sole commandment ‘Thou shalt not be ugly.’ Changing children’s appearance Interventions to change the appearance of children are a specific problem. They may have a functional benefit (e.g., dental work or craniofacial surgery or tongue reduction in children with Down’s syndrome). There are also interventions without a functional benefit, such as correction of flap ears or Asian eye surgery. Changing Faces The charity Changing Faces founded by James Partridge, who is affected by a disfigurement due to a car accident, aims to support and represent people with disfigurements. Context-related view of beauty This view implies that beauty is not objective but, rather, context related and very personal. Physical beauty is a matter of esthetical experience partially dependent on bodily appearance but mainly a matter of identity, referring to personality, style, charisma, character, and social capacities. Cosmedic treatments Treatments to enhance beauty through medical means (e.g., surgery). Distinguishing via appearance The use of our appearance to communicate something about ourselves, our lifestyle, our religion, our priorities, and

Introduction Very Pretty If You Like Horses Imagine being told, ‘Very pretty if you like horses,’ ‘A face only a mother could love,’ or ‘An individual so repulsive I had to have my mirrors insured’ (Miss Piggy). Ethics and appearance is a fascinating subject. It may seem frivolous at first sight, but this is not the case. Behind lies human uncertainty, misery, shame, obsession, and injustice, but also pride, dignity, and fun. Most of us have at some time wondered if our person­ alities and our lives might have been different had we looked completely different. Why do we invest so much in our appearance? Why are we moved by ugliness, and

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the groups to which we belong. Distinguishing does not necessarily mean stigmatizing. Duty to take care of one’s appearance The duty to take care of how one looks that has to do with dignity, with showing the best of ourselves, and is not simply a matter of frivolity. Free choice A free choice is not whether a person is influenced by factors beyond his or her control but whether the person is able to respond adequately to the circumstances in which he or she finds him- or herself. As long as the choice is informed and not forced or coerced, it is autonomous. Illusion of ‘makeability’ The illusion people sometimes foster that if they change their appearance, their lives will be completely different as well. The notion of a ‘total makeover’ will also create the illusion that it will change one’s whole personality and give one control over one’s destiny. Monobeauty The imposing of only one beauty ideal and the mindless copycatting of that ideal. Objective approach to beauty An approach in which beauty is a feature of an ‘object,’ be it a body, a thing, or a piece of art. Physical beauty depends on biologically defined and universal beauty norms. It is a matter of shape, harmony, proportionality, etc. Schmoctors Commercial medical service providers who, for example, implant jewels in the eye. Suspect norms Some cosmetic interventions reflect suspect social pressures and attitudes and may be based on sexist or racist norms.

why does it inspire pity? What is beauty? Why has there been an age-old fascination with ‘freaks,’ and why do they both embarrass and fascinate us? One tells one’s children ‘don’t look,’ but they will, as they realize there is a reason to look. The world is a display. We look, and we are looked at. We see, and we want to be seen. We observe, and we judge. We register, we smell, at first sight, and at second sight. We suffer through and for our appearance, we shave, we tattoo, we exercise, we pluck, we peel, we paint, we camouflage, and we bathe. We shop, and we photo-shop. The market for deodorants is important; we do not want our body odors to spread. We hide our pimples, make our hair shine, etc. We go for partial and total makeovers. One can have surgery to

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have pectoral implants; for penile enlargement; to lift breasts, eyelids, and chins; to change one’s nose; and tuck one’s tummy. How one looks influences one’s life. Appearance matters. Beauty matters. Wars have been fought, fortunes have been gathered, seas of tears have been shed, poems have been written, lives have been ended, and tragedies have been lived all because of beauty. Novels and paintings have immortalized beauty. Obviously (and thankfully), our appearance is not the only character­ istic that is relevant, but its importance should not be underestimated. Although there is no evidence that beauty is linked to self-esteem or long-term happiness, attractive people have advantages in life. Not all ugly ducklings change into beautiful swans. Most of us have marked important transitions in our lives by a change in our appearance – for example, the new clothes when starting to work or the new hairdo after an unhappy love affair.

Nothing New? Large Feet and Tapeworms The attention to appearance is pertinent to all times and all cultures. Efforts at looking beautiful or treatments to uphold good looks, even going through great pains to do so, are nothing new. Think of the binding of feet in China – a practice forbidden in 1928 – as women had to have tiny feet: ‘‘A large-footed woman moving under the bedcovers was less desirable – she could cause an annoying draught of cold air.’’ Corsets already existed in the late Middle Ages. In the nineteenth century, fashion dictated that women had to look like walking hourglasses. In the 1920s, many dieters used tapeworms, despite warnings by the American Medical Association. Even cosmetic plastic surgery is not new, but increasingly more medical technologies are available to influence one’s appearance. What is relatively new is the medically assisted beauty on a large scale and the young age at which people are having ‘their first’ cosmetic surgery. Whereas breast augmentation used to be carried out in women in the 35- to 45-year-old cate­ gory, nowadays it is increasing among teenage girls from the age of 18 years. Once reserved for only the rich and famous, cosmetic surgery is now democratized, being an option for a broad range of people. In many countries, such as Brazil and Spain, significant amounts of money are spent annually on cosmetic plastic surgery. Appearance is influenced not only by surgery but also by dental work, teeth bleaching, anti-aging treatments, fitness programs, diets, cosmetics, hormonal treatment to make children taller or shorter, hair implants, treatments in the field of dermatology, skin whiteners, and many more. There is a wide range of treatments varying from purely medical to semimedical, so-called ‘cosmedic’ treat­ ments to do-it-yourself interventions.

Beauty Although we all have ideas of what we consider beautiful, beauty is difficult to define. Philosophers since Plato and Aristotle have discussed this issue without finding a com­ mon core. Socrates concludes in the Greater Hippias that beauty is difficult to define. Voltaire goes further, arguing that it is not just difficult but impossible to define. Despite the lack of uniformity in defining beauty, we can discern two different perceptions of what beauty is. One is an ‘objective’ approach in which beauty is a feature of an ‘object,’ be it a body, a thing, or a piece of art. Physical beauty depends in this view on biologically defined and universal beauty norms. It is a matter of shape, harmony, proportionality, etc. In this line of thinking, the so-called ‘biology of beauty’ tries to find answers in evolutionary theory to understand why we have certain preferences for body size and shape, such as low waist-to-hip ratios for women and the opposite for men. The opposite approach to beauty is that it is not objective but, rather, context related and very personal. Physical beauty is a matter of esthetical experience only partially dependent on bodily appearance and mainly a matter of identity, referring to personality, style, char­ isma, character, and social capacities. In both approaches, beauty has to do with apprecia­ tion, success, and sexual attractiveness. Beauty takes it all.

Appearance, Health, and Character. The Good, the Bad, and the Ugly There is an association between appearance and health. People who are ill often also look ill – pale and emaciated. Looking healthy, radiating with energy and a shining complexion, is often associated with beauty. Some physical conditions are considered unhealthy as well as unattractive, such as obesity. Character and appear­ ance are often linked. Obese people are thought to be sloths who do not take care of themselves and have no control over their appetite. Being very skinny, on the other hand, is also considered to be unhealthy because such a state can often only be reached by almost starving oneself to death. However, it is still a beauty ideal, and on the catwalk one has to have a body mass index of approximately 19. People exercise to feel fit, to preserve their health, and to look better and preserve these looks for a longer time. In the past, people with a certain facial structure were considered in all likelihood to be criminals. Because of their appearance, some actors are always cast as the ‘bad guy.’ The associations between health, character, and appearance may be based on mere unfounded prejudice. There are fit, disciplined, obese people; thin people with fat surrounding their organs; and people who look ‘bad’ but are good. It is important to realize that appearance is value-laden.

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Disfigurement, Function, and Enhancement It is generally accepted that people with disfigurements or appearances changed by diseases seek medical solutions. Someone with a serious deformation due to an accident or a disease may want to restore his or her looks in order to look ‘normal’ or like he or she looked before. There is not much ethical commotion about treatments aiming to heal what disease or accident has ruined. This is one of the main reasons why plastic surgery developed – attempting to repair the damage done to soldiers in war. Often, treatments have a double purpose – to enable functioning and for esthetic reasons. This holds for a number of surgical and other medical interventions. Skin diseases may cause itching or infections or be contagious, and they may be esthetically unattractive. Behind this lies a notion of suffering. People with disfigurements and diseases often suffer from this – think of the story of the Elephant Man. Relief of suffering is a proper and widely accepted goal of health care. This is contrasted with enhancing appearance, pleasure, or fun. Prozac as a lifestyle drug is different from the treatment of depression. Hirsutism is a serious problem; needing a bikini line wax is not. People suffer because they do not look ‘normal’ and want to look normal, do not want to attract attention, or do not want to be ridiculed (e.g., the woman who, after having given birth to her first child, is told by a nurse, ‘‘You are as flat as a pancake’’). The notions of disease and health, normal and abnormal, suf­ fering and enhancement play an important role in the debate on the acceptability of medical interventions in the area of appearance. They are also brought forward in debates about coverage by health care insurance (e.g., breast reconstruction after breast amputation will be cov­ ered, but breast surgery to have larger breasts will not). These notions are complex and the demarcations some­ times unclear. There are many gray areas.

How You Look and Who You Are Many people have moral doubts about cosmetic medical treatments. The many different moral views on appear­ ance and changing it through medical or nonmedical means vary from the most extreme – that appearance should not matter because it is only skin deep, whereas character and the ‘inside’ of people (i.e., who they are) are relevant – to the view that how people look is essential and who they are has to do with appearance, and that therefore people wanting to enhance their appearance are on the right moral track. Much of the debate is about the moral acceptability of cosmetic technologies that involve doctors (we focus on these, although we compare them

with nonmedical treatments), varying from strong criti­ cism voicing views that doctors should not waste their time on unnecessary procedures that have nothing to do with promoting or preserving health or restoring func­ tioning, that people opting for such interventions have the wrong idea that beauty matters or they have the wrong idea of beauty or both – they may be the victims of pressure from a (decadent) society that glorifies beauty – to the view that it is wonderful that modern medicine offers these possibilities, that it can relieve suf­ fering, increase or restore quality of life, and contribute to human flourishing, and that autonomous individuals can have good reasons to choose treatments. What Is the Problem? Using different examples, we discuss the following arguments: 1. Appearance should not matter. 2. Enhancing one’s appearance is ethically wrong. 3. Why not accept the way one looks rather than change? 4. People do not freely or autonomously choose; they are brainwashed by icons and ideals or at least strongly influenced by societal norms. 5. It is wrong for doctors to cut into healthy bodies or for people to run risks through treatments that only aim at enhancing appearance. 6. Appearance treatments are luxuries compared to far more important (health) needs.

Appearance Should Not Matter It is only shallow people who do not judge by appearance. – Oscar Wilde

In the fairytale Beauty and the Beast, the princess loves the beast for who he is. She is rewarded for this love when the beast turns into a beautiful prince. The message is that we should not judge a book by its cover. When Beast becomes his beautiful former self, Beauty, as far as we know, does not suggest that he become the beast again: ‘‘No one in the world but you had virtue enough to see what goodness there was in me, and though I offer you my crown I cannot repay the debt I owe you.’’ ‘‘Beauty,’’ said the fairy, ‘‘come and receive the reward for the choice you have made; you have preferred virtue to beauty and wit, and you now deserve to find all these qualities in the one you love.’’ There is much more to a person than his or her appearance. Intelligence, kindness, humor, and many more aspects, matter also from a moral perspective. When choosing whom to share our lives with, we are well-advised not to look at appearance alone:

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A Chippendale dancer or a model may be quite boring, but if this kind and gentle and funny person also looks like George Clooney or Scarlett Johansson, then we may well appreciate it. However, the fact that appearance is not the only feature that matters does not imply that it is irrelevant. We are not floating spirits but, rather, embodied selves; our character is influenced by how we look. Also, we express ourselves through our appearance. We dress ser­ iously for a certain meeting and gaily for a party, we use make-up, and we want to look healthy. Often, an impor­ tant symbolic meaning is attached to our presentation: judges wear robes, monks have monk clothes, and specific groups have specific dress codes. We use our appearance to communicate something about ourselves, our lifestyle, our religion, our priorities, and the groups to which we belong. Distinguishing does not necessarily mean stigmatizing. Those who say that appearance does not or should not matter at all are blind to reality and do not do justice to our embodied state of being. The Duty to Take Care of One’s Appearance Is there a moral duty to take care of one’s appearance? People who do not care – who have green snotty sub­ stances running from their nose, spread their dandruff particles when sitting next to you, and stink of unpleasant bodily fluids – often are considered at least to be an obnoxious nuisance. One could argue that they have a character flaw or a social problem because they are appar­ ently indifferent to the impression they make on others: They do not care, have ‘let go,’ and do not appreciate and value their bodies. This is not simply a matter of frivolity. Imagine a loved one, such as your elderly mother, has lost the capacity to take care of herself. We want her to be looked after; we will comb her hair, wash her, and make her smell nice; we will do as she would have done herself if she could. We do not want our incapacitated loved ones to wear clothes that they would not have chosen or even would have hated. It has to do with dignity, with showing the best of ourselves, or simply with taking care. To completely lose interest in one’s appearance may be a sign of a psychiatric condition. It is not only about vanity or narcissism or the outside. Appearance matters. Does that mean enhancing is good?

Enhancement of Appearance Is Morally Wrong or at Least Dubious Excelling in Beauty We enhance ourselves in many fields of life: We want to learn things, to be good at sports, or master the art of cooking, meta-ethics, or embroidery. Enhancing is usually

considered to be laudable, but it does not have a very good moral reputation in the appearance context. The criticisms can be dissected in to different argu­ ments. Critique often is not to do with the enhancement per se but, rather, with the means through which people are enhanced (e.g., surgery or pills). Enhancing oneself through hard work and effort is acceptable, but enhance­ ment through ‘easy’ measures is wrong. The French expression ‘il faut souffrir pour eˆtre belle’ (‘one has to suffer to be beautiful’) has to do with ideals on discipline, hard work, and appropriate rewards. It is considered admirable if you improve your appearance through vig­ orous fitness training, a diet of broccoli and yogurt, and a high dose of forgoing, but if you do it through liposuction it is problematic. You have to deserve it. This may have to do with a notion of cheating contrasted with ‘real’ result. ‘‘The specter of the designer women’’ led the English Parliament in 1770 to pass an act that annulled marriages of those who ensnared husbands through the use of ‘‘scents, paints, cosmetic washes, artificial teeth, false hair, Spanish wool, iron stays, high-heeled shoes, and bolstered hips.’’ (We do not know how many marriages were annulled.) The critique may also have to do with a (related) distinction between natural ways or unnatural ways to improve one’s looks. Unnatural is suspect; natural is not. Exercise is good; Botox is not. ‘Natural’ may refer to the means and also to the result. It can be an esthetic judg­ ment. One wonders whether the result of intensive body building looks natural or not. Critique on enhancing one’s looks may also be related to the fact that some means are not available to all, which leads to unfairness because only the wealthy can afford appearance treatments. Because nature is not renowned for her fairness when it comes to bestowing beauty, this might lead to a gap between the ‘good-looking’ and the ‘not-good-looking’ (not that she favors the wealthy in bestowing her gifts, but the poor ‘nonbeautiful’ cannot afford treatments). Cher, Joan Collins, and Jane Fonda are elderly ladies who look better than a poor grand­ mother in the suburbs who scrubbed floors her whole life. Is that unfair? If other people cannot learn Greek, profit from reading Proust, enjoy Bach, or ride a horse, should that be a reason for me not to engage in these activities or to not have surgery? Or is it only unfair in the case of access to treatments that are medically necessary, such as that which restores functioning? ‘Thou Shalt Not Be Ugly’ Another critique is that our preoccupation with appear­ ance is the sign of (or will lead to) a decadent botoxified society, obsessed with looking good instead of being good, where the attention for appearance is disproportionally great, appearance is the highest value, and the worship of

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appearance is almost a religion, with the sole command­ ment, ‘Thou shalt not be ugly.’ Indeed, rarely does one see advertisements in which an old fat lady with warts and three black hairs sprouting from them tells you to buy a new car or shampoo. It is perfect persons in perfect families with perfect appearances that tell us what to buy. The media pictures beautiful people. The cultivation of perfectness leads to extremes. Beauty ideals embodied by supermodels, whom J. K. Rowling called ‘‘walking toothpicks,’’ influence young girls’ eating behavior. For this reason, some governments, magazines, and fashion events have agreed not to promote this ideal.

Monobeauty One could argue that it is not the enhancement or the pursuit of beauty that is intrinsically wrong but, rather, the imposing of only one ideal – monobeauty – and the mindless copycatting of that ideal. Beauty holds no mystery anymore but is limited to one particular image of esthetic correctness. Those who do not con­ form are the subjects of a modern witch-hunt: The witches have unshaven legs, unplucked brows, and prob­ ably natural labia. Rather than expressing one’s character, one’s originality, and uniqueness through one’s appearance, everyone wants to be the spitting image of a particular idol or icon – the face of the day. Conformity seems more like a demonstration of lack of confidence rather than of individuality, which leads to the complex paradoxical task that in order to express your individuality, you have to conform to the ideal of uniqueness. ‘Over the Hill’ A Dutch documentary, Over the Hill, by Sunny Bergman has received much attention both nationally and internationally. Bergman interviewed editors of women’s magazines, plastic surgeons, and female consumers of cosmetic surgery, and she submitted herself to the critical gaze of a plastic surgeon. The documentary shows how images of perfect female bodies are being created by plastic surgery and photo-shopping tech­ niques and how women are trying to conform to these images in women’s magazines and pornography websites. For example, a 15-year-old girl from the United States underwent labia sur­ gery because she was concerned her boyfriend might think it weird if she did not look like women in porn movies. In reaction to this documentary, the Dutch foundation No Expiry Date was formed, which calls for a critical awareness of cultural values concerning the appearance of women and beauty ideals. The foundation criticizes the idea of defining femininity solely in terms of beauty, stating the current beauty ideal is unrealistic. Using research and (legal) actions, they fight the beauty industry, for example, by urging editors of women’s magazines to change their photo-shopping policies. The foundation’s concern is that women try to conform to norms that are unrealistic and manipulated.

The Illusion of ‘Makeability’ and Control versus Acceptance The notion of a ‘total makeover’ might create the illusion that it will change your whole personality and give you control over your destiny. It is all makeable! But of course it is only makeable to a certain extent. People think that if they change their appearance, their lives will be different as well. There are no guarantees for that. People, particularly unhappy or desperate people, are gullible and inclined to believe the promises made. Next to medical interventions, there is a huge market of beauty products promising eternal and easy beauty, such as slimming belts, anticellulite and wrinkle creams of all sorts, and hair-growing food supplements. Often, these products are retailed in pharmacy, promoted in adver­ tisements with semimedical terms and figures to increase the credibility of the message. Because these products are less expensive and intrusive than surgical treatments, what is problematic about these ‘miracle’ practices? The fact that they are misleading? The fact that the beauty industry is gaining easy money by profiting from or even exploiting gullible people? We should also ask ourselves: why do we (want to) believe these messages? It is obvious that losing 7 pounds-a-week by drinking a miracle drink or losing 10 years of age by smearing an even more miraculous antiwrinkle cream on one’s face are promises that are too good to be true. Of course, many beauty products provide a feel-good feeling: The cream will not dissolve the wrinkles, but it feels fresh and soft. There is an important psychological factor of consolation, taking care of oneself and spoiling oneself. It is not only about looking good but also about feeling good. On the whole, such treatments may be less problematic than surgery, particularly because surgery is often irreversible. This presupposes that no false promises are made and that the treatments are safe, which is often not the case. Enhancement in our view may be morally proble­ matic, but it is not morally wrong per se. It depends on the evaluation of the means, the availability of means, and the diversity of the ideals one strives for through the enhancement. However, given the problems we men­ tioned, isn’t it better, both in the moral as well as in the nonmoral sense, if we accept the way we look?

Why Not Accept the Way One Looks Rather Than Change? The third argument runs as follows: There are better ways to solve problems with appearance than to change the appearance. This holds on an individual psychological level, because the pursuit of beauty may mask problems

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reaching much deeper than physical appearance, as well as on the societal level because it reinforces the pressure to conform to the prevailing beauty norms. ‘Changing Faces’ The charity Changing Faces, founded by James Partridge, who is affected by a disfigurement due to a car accident and introduced the term to cope with facial disfigure­ ment, aims to support and represent people with disfigurements. They experience problems with social interaction (e.g., being stared at, name-calling, embarras­ sing situations, and rejection). The charity provides training in social interaction skills to empower the indi­ vidual; psychosocial interventions can complement surgery but may sometimes be an alternative to medical treatments. Some people find that their disfigurement frees them from the norm of appearance and liberates them from unrealistic expectations. Apart from support­ ing people with disfigurements, the charity also aims to change the way society thinks about disfigurement by informing health and social care professionals, teachers, the media, and the wider public. It argues that health care services tend to focus on treating physical symptoms, neglecting psychosocial methods, countering the myths of beauty holding that beauty is a necessary precondition for happiness. Changing Faces Because of their ignorance about the causes of facial disfigure­ ment, people you meet may assume you are suspicious or mentally retarded, or they may try to patronize you and treat you as a poor unfortunate. It is important that you squash their misconceptions and assert your worth. A proactive approach that offers information will enable you to communicate more easily, but each situation has to be weighed and assessed. You must develop acute antennae for responding to any given meeting. You will not get it right the first time or every time. Trial and error will be required – and so will a good deal of bravery. For example, I find it difficult to imagine myself doing the following, recalled by my brother: ‘‘I remember going with you to pubs and being aware of conversations stopping and eyes drilling into our backs. In one, you completely disarmed a group of starers with the throwaway comment, ‘Not looking my best today, I’m afraid.’’’ Adapted from James Partridge, Changing Faces.

to him, whether through an accident or ‘naturally.’ An illustration is that many want to stop or camouflage the signs of aging – old equals unattractive – and such a nonacceptance is considered to be wrong or morally suspect. We have to face the fact that growing old comes with wrinkles, crow’s feet, varices, love handles, and – especially for men – baldness. Those who fight the signs may argue that there is no good reason to let nature or fate dictate how we look, if we can change it. We are very impressed with the work and the philo­ sophy of Changing Faces and stress the importance of psychosocial ways to come to terms with one’s appear­ ance. There are many sad stories of people who are addicted to cosmetic surgery because they are extremely unhappy with their bodies (body dysmorphic disorder), and after each operation they plan for the next one because they apparently never find what they are looking for. For some, however, changing their appearance through medical interventions may be a good solution. There are different options, and choices should be care­ fully made. The fourth, and again related, argument has to do with autonomous choice, particularly of women.

Autonomous Choices? Free Autonomous Choices or Duped by the Beauty Imperative? Berlusconi and Other Victims Italian Prime Minister Berlusconi is no longer one of the few males who improve their appearance by medical means: The number of men requesting cosmetic surgery is rapidly increasing. This also holds for the number of cosmetic products for men. However, the majority of clients have been and still are female. Given the influence of the media on women to live up to some standard of beauty, can women’s pursuit for youth and beauty be qualified as free and autonomous? Are women ‘duped’ by the beauty system? Are their choices a result of the massive media pressure that an Anglo-Saxon beauty ideal and male-dominated power relations exert? Bunnies, Bimbos, and Barbies

The Virtue of Acceptance It is important to emphasize that there are different ways to cope with such situations, and the ensuing suffering can be relieved in different ways. No matter how important acceptance is, both psychologically and morally, this does not mean that other solutions (e.g., surgical) are therefore wrong. It is sometimes argued that a default of modern man is that he has lost the capacity to accept what is happening

Some argue that women who undergo cosmetic surgery are coerced into this option. (Other things being equal, this also holds for other cosmetic treatments.) Women find themselves in a context that provides them with no real options. What might seem to be autonomous choices are in fact acts of blind conformity to a beauty standard set by men and enforced through advertising, media, and the fashion industry. Thereby new norms are set: What used to be normal today is ugly tomorrow. Whereas ‘the hair­ lessness norm’ (to shave legs and armpits) was criticized

162 Appearance, Ethics of

by the second-wave feminists, nowadays feminists may reprehend new norms of a youthful appearance and the craze for Botox or the porn role model and the use of cosmetic labia surgery. Others, however, argue that women opting for cos­ metic surgery are not victims but autonomous decision makers. A Dutch study by Kathy Davis on the reasons why women undergo cosmetic surgery showed that their choice was not a whim but a decision seriously pondered for years before the women finally went to the cosmetic surgeon. They experienced their bodies as different and suffered because of this, and they desired to become ordinary and normal. It was not beauty they sought. All stressed that they wanted the surgery themselves and were not undergoing it because of their male partner. The study stresses women’s agency. The results, however, cannot be generalized; in some societies, the pressure on women may be stronger than it is in Dutch society. The reigning expectation in some countries that at a certain age one should have a Botox treatment, etc., constitutes a pressure making it difficult to say no. Knowledge about the concrete practice of chan­ ging appearance and social pressure is therefore necessary. Empirical research, however, cannot solely solve the dispute on autonomy. Critics might argue that women may say that they want the surgery themselves but in fact conform to the beauty standard. As a study by Wijsbek shows, it depends on one’s concept of freedom and autonomy. What makes a choice a free choice is not whether a woman is influenced by factors beyond her control but whether she is able to respond adequately to the circumstances she finds herself in. As long as the choice is informed and not forced or coerced, it is autonomous. Authentic Choices? The Stepford Wives One may wonder whether women are able to make up their own minds and make authentic choices. Influential concepts of autonomy define it as authenticity that requires higher-order identification with one’s firstorder desires. This process of identification has to be free of alienating influences. Of course, every choice is more or less influenced, but certain influences are ‘alie­ nating’ and problematic. One reason to judge someone’s values or choices as inauthentic is because of the type of circumstances in which her values are enclosed. The women in Ira Levin’s book, The Stepford Wives, are beauti­ ful blonde housewives with perfect figures, happy in their pursuit to please their husbands. They would defend their values if required, but their choices are not autonomous because their values are not truly their own – they are forced upon them by bio- and sociotechnological engi­ neering. In fact, so the story goes, they were once successful and high achievers but turned into robotic

domestic and perfectly beautiful housewives. This story shows how important it is that people live in circum­ stances in which reasonable alternatives remain open to them and they are able to challenge values. This may be more the case in some countries than in others. However, even if people are able to make autonomous decisions, the beauty values may be morally problematic because they are suspect. Does this apply to all kinds of medical treatments to change appearance or just particu­ lar treatments? Suspect Norms? Michael Jackson’s Nose and Skin Whiteners Some cosmetic interventions cause moral unease because they seem to reflect suspect social pressures and attitudes. Examples include black men, such as Michael Jackson, who have surgery to change their nose; people who use skin whiteners; or Asian American women who request double eyelid surgery to make their eyes look wider and more Western. This is not a new phenomenon; through­ out the nineteenth century, rhinoplasty was offered to Jews to reduce their noses and to the Irish to correct their so-called pug or doggy noses and in this way to assimilate into society. Are these kinds of ethnic surgeries morally different from cosmetic surgery requested by women who want to look like a supermodel? Some answer ‘no.’ Suspect norms affirm an unjust or unfair system. The norms for women’s appearance, for example, reflect and reinforce disturbing, unjust conceptions of women. Such norms are, as Margaret Little has argued, sexist and racist and therefore wrong. Others might argue that it depends on whether there is actual discrimination with regard to the traits involved. Men having pectoral implants are then not on the same suspect level as men using skin whiteners because people without strong shoulder muscles are not discriminated against, whereas black people are. Are men having penile enlargements victims of sexist norms? There are no easy answers. People requesting ethnic cosmetic surgery may suffer from being different from the dominant group. Differences in appearance can evoke stigmatization and discrimination. Cosmetic interventions should not be solely defined in terms of beauty: Cosmetic surgery is more an intervention in identity than in appearance. Being in favor of stopping racism and sexism does not make it go away. In cases of serious suffering, doctors may be justified to perform surgery, even when that meets a suspect norm, when there are no alternatives to mitigate suffering. In contrast, if doctors and medicine promote or benefit morally suspect practices, they may be accused of complicity in unjust practices. What about those who are certainly nonautonomous? We now make an excuse for children and appearance changes.

Appearance, Ethics of 163

Changing Children’s Appearance. If Only We Lived in an Ideal World Special attention is needed for children, who cannot yet make decisions about interventions to change their appearance. Functional benefit may be an argument for dental work or craniofacial surgery that is often carried out on children, or even certain operations for children with Down’s syndrome, such as tongue reduction. However, what about interventions for which no func­ tional benefit is to be gained, such as correction of flap ears, growth hormone treatment to influence later height, liposuction, or Asian eye surgery? An increasing number of minors are having cosmetic surgery in the United States and probably also in Europe. They undergo a range of different surgeries, such as nose reshaping, breast augmentation, and eyelid surgery, and nonsurgical interventions such as Botox injections, che­ mical peels, and laser hair removal. What about interventions to improve appearance? There is no clear health benefit, there are risks involved, and the child cannot decide for him- or herself. The main argument to apply them is that the child will suffer from the cruelty of other children’s teasing as well as the merciless pity of adults. Although some children can handle it, others can­ not, and one does not know beforehand to which category a particular child belongs. Obviously, it is important to teach children not to discriminate against others on the basis of appearance and that they should accept and even enjoy differences in physical appearance. The reality, however, is that children with skin problems, very small children, or redhaired children are likely to be the victims of teasing. Parents face a catch-22 dilemma: Ideally, one wants one’s child to live in a society in which people are not stigmatized on the basis of their appearance, but one knows that in real life he or she will be. If one chooses to have one’s child treated, one indirectly supports the current system that one thinks is wrong. If one does not, the child may suffer the consequences, being the ‘victim’ of his or her parents’ ideal. A drastic solution would be for governments to make cosmetic surgery illegal for those younger than 18 to contribute to a more tolerant societal attitude to diversity. Parental autonomy, however, is highly valued, and par­ ents have an enormous influence on their children’s current and future lives in determining where they will be raised, what kind of education they will enjoy, and what sort of values they will adhere to. Why exclude appearance from this list? Of course, the right of parents to make important (health care) decisions for their children is not unlimited. Intentionally causing harm or exposing them to risk caus­ ing harm without a clear benefit is prohibited.

The Right to an Open Future? A categorical prohibition disregards differences in motives, situations, and interventions. Cosmetic ear sur­ gery for a child who is being teased because of his or her protruding ears, who is not resilient enough to stand up to the teasing, and who wants the surgery for him- or herself is different from the eye surgery requested by parents for their Asian child to look more Western. The latter request may not be about relieving suffering due to (expected, anticipated, or already existing) teasing but to change a feature that is essentially tied to a specific ethnic identity in order to adapt the child’s appearance to a dominant ethnicity. This is highly complicated. The notion of a right to an open future holds that children possess anticipatory autonomy rights that protect their future rights as adults. Children should have reasonable opportunities to develop and realize their own life plan and view of the good life. Bodily integrity and ethnic identity are, one could argue, significant life choices that should be left to the discretion of the child later in life. On the other hand, the argument of parents might precisely be that postpon­ ing may rob the child of chances for certain life plans and views of the good life because the child lives in a nonideal world, and therefore the postponing is not in the child’s best interests.

Harm and Case-by-Case Analysis There is often more certainty concerning what may harm a child than what his or her best interests are. Parents may be mistaken about the child’s best interest and wrong to act on ‘suspect’ norms. If a decision regarding a medical inter­ vention to change appearance can be postponed, there are good reasons to leave the decision for the child to make when he or she is an adult. Rules of thumb may be: The intervention is linked to a child’s (future) personal • identity. The intervention involves risks. • The is not to relieve suffering. • Thereintervention is resistance of the child to the intervention. • The result is irreversible. • Of course, general rules cannot substitute for a thorough case-by-case analysis. A child with Down’s syndrome may suffer because she is being teased by other children. Cosmetic surgery may alleviate her suffering, but at the same time being treated as normal can lead to too high expectations and therefore frustration of the child. There are many controversial issues. To conclude with a very difficult case, consider the case of parents who wanted embryo selection and preimplantation diagnosis in order to have a child with dwarfism.

164 Appearance, Ethics of

This brings us to the fifth argument, which focuses on the role of doctors.

The Role of Doctors Orlan, Lola Ferrari, and the Role of Doctors Orlan is a French performance artist who has on a regular basis had plastic surgery to drastically change her appear­ ance. The surgery is filmed. Surgeons are even prepared to wear silver surgical suits. Lola Ferrari supposedly had the biggest breasts ever seen, as a result of surgery. (Apparently her early death was due to an overdose of drugs, not because of the surgery.) These extreme exam­ ples give, in the eyes of many, cosmetic surgery a bad name. This argument focuses on the role of doctors. If an adult wants a tattoo or a piercing or many tattoos and piercings, then we accept it (although there may be cer­ tain limits based on esthetics or on ‘good taste’), whereas many think that doctors should not do these things. Why? There are three arguments. Doctors have a special responsibility in considering the reasons of the person and should not act on wrong and imposed ideals and values or exploit fragile decisions of vulnerable peo­ ple. This argument holds only for those requests that are indeed deemed to be inauthentic or otherwise compro­ mised in terms of autonomy and freedom. This was discussed previously. Second, even if the decisions are well considered and authentic, doctors should not cut into healthy flesh and subject patients to the risks of surgery (or of drugs or other medical treatments) unless there is a (or the need to prevent a) disease or a solid psychological reason, for example, suffering. This is another way of saying that there are no medical or health goals that justify medical interference. The argument does not hold for interven­ tions that have health as well as appearance advantages, such as combating obesity. Third, doctors have more important things to do than cater to the frivolous or idiosyncratic wishes and whims of the spoiled or eccentric. It does not fit the goals and the dignity of the profession. My Body, My Choice: Sincere Suffering or Just Wanting? The Jewel in the Eye Of course, the strength of the ‘medical goal’ argument depends on what one considers to be medical or health care goals. There are strict and wide views. If people feel better after cosmetic surgery, why shouldn’t it be consid­ ered as a ‘medical benefit’ – ‘psychotherapy with the scalpel’? Can we define suffering? If we do (e.g., as ‘a state of severe distress associated with events that threaten the intactness of the person’), how do we know and verify

when it is really there? If Pamela Anderson visits the surgeon crying her eyes out about the size of her breasts, because they need to be enlarged or made smaller depending on the latest fashion, is she then suffering? Who is to be the judge: Is it up to the ‘patient’ or to the doctor? There is, as mentioned previously, a gray area. Even if all agree that there is no suffering, one might argue that doctors can still accommodate the patient’s wishes. An example is the jewel in the eye: A Dutch woman had a small platinum heart implanted in the mucosa of the eye. Doctors might do these things: ‘‘Who am I to question the request of an autonomous client?’’ What are the limits? Think of the fashion of scarring – purposely making scars. If someone requested that a perfectly healthy leg be cut off, doctors would not think of doing it. The debate will then be on the proportionality between the risks of a treatment and how much a person wants to achieve a goal. It seems certainly disproportional to run a high risk of dying from surgery to tuck one’s tummy. Some have argued it is not (only) about risks but about something very fundamental to the medical professions. Such doctors do not deserve to be called doctors: They are ‘schmoctors’ – commercial medical service providers. The television series Nip Tuck provides an interesting picture.

Schmoctors and the Reputation of Medicine Such doctors should consider the effect of their actions on the reputation of medicine. Will surgeons be taken ser­ iously, or will they be looked at as a sophisticated kind of hairdresser with a tiny touch of butchering skills, who happen to carve bodies? Is it wrong if they are considered that way? After all, they do provide services that people want. Maybe the notion of the ‘samaritan and sacrosanct’ savior of lives is in need of an update/revision in con­ sumer-oriented society and healthcare systems? Should such treatments be compared to certain treat­ ments in the realm of fertility, accepting that people are willing to take certain risks for certain purposes (to have children or not to have children; to have an eye jewel or larger breasts)? Is it better if these interventions are car­ ried out in a clinical setting instead of ‘going underground’ to bad hygienic and medical circumstances and ‘practitioners’ without decent medical knowledge? In many countries, there are already many private cosmetic surgery practices, whose clients mainly come for enhancements. Is it good to separate such practices from ordinary health care, or is there also a danger in such a separation? Whatever the answer to this question, such clinics and their employees should be well regulated and controlled.

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Doctors Have More Important Things to Do The third, related, argument is that doctors have more important things to do. There are diseases to cure and deaths to prevent. They have special skills and special knowledge that cannot be used for other (more serious) purposes if they are implanting jewels, lifting sagging chins, or performing liposuction on those who should not have become fat in the first place. There is a growing business of medical tourism in countries that struggle with providing basic health care. Cosmetic surgery safaris take place next to villages where elementary needs such as water and food are lacking. The tourist has liposuction, and the inhabitant children have hungry bellies. Shouldn’t doctors who now provide such services be involved in real and serious health issues in their socie­ ties? The strength of this argument depends on the number of doctors available, on the willingness of govern­ ments to pay for social medicine, and on the possible economic benefits and their use for the less well-off, etc. Maybe one cannot blame doctors for wanting to make money or for enjoying enhancement work, but it is still morally uncomfortable given the inequalities in health care globally and also within societies. In light of the scarcity of resources and priorities in health care, the cosmetic esthetic business – and big business it is – gives rise to grave questions. However, this is not something that can and will be changed easily. We also stress that it is not a problem that exclusively holds for appearance treatments. The sixth and final argument has to do with priorities and essential needs.

Fatal Attraction? Priorities, Luxuries, and Essential Needs It is not just doctors who face the question of priorities and scarcity. Many of us spend a considerable amount of time and money on things and activities that hardly can be seen as elementary or as essential needs. We have luxury cars, massages, expensive food, compact disk col­ lections, and clothes to look nice rather than merely to cover our bodies. In affluent countries, a lot of money is spent on appearance: cosmetics, hairdressers, etc. People invest in their looks. We have argued that taking care of and investing in one’s appearance is not by definition wrong. Important criticism is voiced regarding these luxuries in the context of the debate on world hunger and the lack of medical treatment, food or decent housing for the poor in this world. Visits to the hairdresser could feed an entire family in a developing country. We live in a world in which children are purposely disfigured to be more suc­ cessful beggars, whereas in affluent societies children

have early ‘nose jobs.’ We obviously cannot resolve this huge theme here. It is neither fair nor realistic to hold plastic surgeons (and other doctors who work on improving appearance rather than the relief of suffering) and their clients responsible for all the misery and inequalities in this world. One needs to wonder, however, what to do as a citizen: How much do I spend on clothes, what is my responsibility to organizations that help those who are worse off, and how can I contribute to the realization of the millennium goals? That also holds for professionals: What are my options as a doctor or a nurse? Appearance matters, but survival and health matter more. See also: Autonomy; Care, Ethics of; Cosmetic Surgery.

Further Reading Beaufort I de, Hilhorst M, and Holm S (eds.) (1996) In the Eye of the Beholder. Ethics and Medical Change of Appearance. Oslo, Norway: Scandinavian University Press. Bolt I and Wijsbek H (2002) Beauty and the Doctor, final report of a European research project. Rotterdam, The Netherlands: Erasmus University. Davis K (1995) Reshaping the Female Body. The Dilemma of Cosmetic Surgery. New York: Routledge. DeGrazia D (2005) Human Identity and Bioethics. New York: Cambridge University Press. Deyo R and Patrick DL (2005) Hope or Hype: The Obsession with Medical Advances and the High Cost of False Promises. New York: Amacom. Eco U (2004) Storia della Bellezza. Milan, Italy: Bompiani. Etcoff N (1999) Survival of the Prettiest. The Science of Beauty. New York: Doubleday. Feinberg J (1980) The child’s right to an open future. In: Aiken W and LaFollette H (eds.) Whose Child? Children’s Rights, Parental Authority, and State Power. Totowa, NJ: Rowman & Littlefield. Hyun I (2001) Authentic values and individual autonomy. Journal of Value Inquiry 35: 202. Levy A (2005) Female Chauvinist Pigs: Women and the Rise of Raunch Culture. New York: Free Press. Little MO (1998) Cosmetic surgery, suspect norms and the ethics of complicity. In: Parens E (ed.) Enhancing Human Traits, pp. 162–176. Washington, DC: Georgetown University Press. Morgan KP (1991) Women and the knife: Cosmetic surgery and the colonization of women’s bodies. Hypatia 6: 26–53. Ouellette A (2009) Eyes wide open: Surgery to Westernize the eyes of an Asian child. Hastings Center Report 39: 15–18. Rumsey N and Harcourt D (2005) The Psychology of Appearance. Philadelphia: Open University Press. Wijsbek H (2000) The pursuit of beauty: The enforcement of aesthetics or a freely adopted lifestyle? Journal of Medical Ethics 26: 454–458.

Relevant Websites http://www.campaignforrealbeauty.com – Campaign for Real Beauty. http://www.changingfaces.org.uk – Changing Faces.

166 Appearance, Ethics of http://www.surgeon-and-safari.co.za – Surgeon and Safari. http://www.bodyimageproject.com – The Body Image Project.

Biographical Sketches Inez de Beaufort is Professor of Health Care Ethics at the Erasmus Academic Hospital in Rotterdam, The Netherlands. She has written on artificial reproductive technologies, the right to have one’s genetically own offspring, responsibility for health, the end of life, research with human subjects, and fiction and ethics (she is co-author of ‘Soap Story: Erewhon Hospital’ in the Journal of Medical Ethics). She is an Honorary Member of the Dutch Health Council, and she has been a member of the European Group for Ethics in Science and Modern Technologies and the National Dutch Council for Ethics in Medical Research. She is involved in the appraisal of the Dutch Health Care Package and the evaluation of euthanasia. She has coordinated European Union-funded projects on beauty and the doctor, fiction and ethics, and obesity. She is specifically interested in the relation between fiction and health care ethics and also the role of the ethical expert in advisory roles. Ineke Bolt studied theology at the Free University in Amsterdam. Her Ph.D. thesis was on the principle of auton­ omy in the context of genetic counseling. She is currently a lecturer at the Department of Ethics and Philosophy of Medicine, Erasmus Medical Center in Rotterdam. She is

also a senior lecturer at the Ethics Institute of Utrecht University. Her teaching and research interests include auton­ omy, genetics, reproduction ethics, pharmacy ethics, and neuroethics. She has been involved in several projects, includ­ ing a European project ‘Beauty and the Doctor: Moral Issues in Health Care with Regard to Appearance.’ Currently, she is involved in a research project about the ethics of lifestyle medicine. She has been a member of several ethics commit­ tees, including the Committee on Pre-implantation Genetic Diagnosis and Screening (the Health Care Council of The Netherlands), and she is currently a member of the Regional Review Committee for Termination of Life on Request and Assisted Suicide. Sofie Vandamme studied social sciences at the University of Louvain and cultural sciences at the University of Ghent. She did a PhD-research on literature and medicine at the Free University of Amsterdam and in 2007 published a book on this subject Koele minnaars. Medische verwoording en literaire verbeelding van ziekte in verhalen. From 2006–09, she worked at the Department of Medical Ethics of Erasmus Medical Center in Rotterdam, on the EU project ‘Eurobese: Ethics and the Obesity and Overweight Epidemic: Image, Culture, Technologies and Interventions’. Currently, she is doing research on psychosocial aspects of infertility treatments. Her research interests include the broad domain of cultural representations of illness and disease, in particular narratives and fictional accounts on bodily experiences.

Applied Ethics, Challenges To T Dare, The University of Auckland, Auckland, New Zealand

ª 2012 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, Volume 1, pp 183–190, ª 1998, Elsevier Inc.

Glossary Ethical expertise The idea that ethics is the sort of thing that admits of expertise and that some people have more of it than others. Monism The position that there is one and only one ultimate ethical principle. Moral deductivism The idea that uniquely correct answers to moral problems issue from deductive decision procedures. Pluralism The position that there is more than one ultimate ethical principle.

Introduction A little more than 25 years ago it was widely thought that philosophical ethics had little to contribute to such mat­ ters. This was not a matter of thinking philosophers should abandon the study of ethical theory altogether. The idea was rather that though the refinement and elaboration of general ethical theories and work on meta-ethical problems such as the meaning of moral terms might properly continue, philosophers should not suppose their efforts on these matters to have any prac­ tical value. There has been a dramatic change. Much of the most exciting ethical writing of the intervening period addresses specific moral problems such as abortion and euthanasia, many universities have applied ethics posi­ tions, and philosophers now regularly find themselves called upon to ‘do ethics’ in the community – to serve on professional ethics committees, to produce reports for governments and institutions on ethically contentious issues, to give interviews about business ethics, and so on. Yet this dramatic change has occurred in the face of numerous and ongoing challenges. This article presents and assesses the principal challenges to applied ethics. It is worth adding an ‘expansionist caveat’ at the outset. This discussion has already focused upon the role of philosophy and philosophers in applied ethics, and chal­ lenges to the legitimacy of the endeavor have tended to be similarly directed. But if correct, most of those challenges will have implications not just for philosophers but for any normative theorist seeking practical consequences from their work: When engaged on certain projects,

Relativism The position that there are no universal ethical truths. Rather, ethical truths are always true or false relative to particular cultures or situations. Subjectivism The principle that ethical statements report only the beliefs and attitudes of the person uttering the statement. Theory/anti-theory debate The debate about the value of general ethical theories in ethical deliberation and justification.

economists, social and political scientists, and lawyers may belong under the critic’s spotlight as legitimately as philosophers. Hence, though I will continue to focus upon philosophy, it should be borne in mind that moral philo­ sophers do not have a monopoly on normative theorizing nor upon the aspiration to give moral advice on the basis of such theorizing, so should not be the only targets of critics, or the only beneficiaries of a defense of applied ethics.

Applied Ethics, Ethical Skepticism, and Ethical Expertise An influential cluster of challenges to applied ethics springs from meta-ethical views about the possibility of moral knowledge. Very crudely, the idea is that in ethics there are merely opinions, and that as a result no one can give authoritative advice as to what is right and what is wrong. This general skepticism has many forms. I am concerned here merely to give an overview and brief assessment of some of the main varieties. The Challenge of Relativism One influential variety begins from the observation that different cultures seem to have different ethical views. Some cultures think polygamy immoral, others that it is perfectly proper. Some cultures think it permissible to abandon the elderly to die, others that the elderly must be treated with particular respect and reverence. These

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apparent differences have led many to reject the idea of universal ethical truth. There is, the idea goes, nothing more than different cultural customs. None can be con­ demned as wrong or honored as right, for there is no ‘acultural standpoint’ from which such a universal assess­ ment could be made, or from which practical or applied ethical advice might proceed. Cultural relativism has attracted a good deal of criti­ cism. For now, it will do to simply recite some of the more obvious difficulties. First, even granting the observations of ethical differences between cultures, it does not follow that there is no universal moral truth: It does not follow from the fact that people disagree about whether or not polygamy is wrong that there is no fact of the matter, any more than it followed from the fact that people disagreed about the shape of the earth that there was no fact of that matter. Second, even allowing, again, that there is quite dramatic ethical disagreement, it might still be the case that there is a very large area of ethical consensus. There may be some moral rules – ‘gratuitous killing is wrong’ perhaps – held by all communities at all times. This point connects with a third: Perhaps it will seem that even the rule ‘gratuitous killing is wrong’ is not really universal. After all, certain cultures abandon their elderly to die. But the bare observation of such practices does not evidence different ethical values. Suppose attempting to keep the elderly alive in certain environments threatened the entire community. In such circumstances, abandoning the elderly may not seem to be ‘gratuitous killing.’ Those who followed the practice would not show by doing so that they held radically different values to those cultures that thought the elderly should be treated with reverence and respect. Indeed, we can easily imagine circumstances in which the appropriate way to show reverence and respect was to abandon the elderly before they became a threat to the community that they them­ selves held important. The Challenge of Subjectivism Subjectivists claim that ethical statements report things about the utterer rather than about the world. Such state­ ments are either merely emotional responses (so not really statements at all) or are statements only about the beliefs, desires, and attitudes of the speaker. An apparent dispute about euthanasia, according to the subjectivist, is not really about euthanasia at all, but about the feelings, attitudes, and so on of the disputants. Again, as a challenge to applied ethics, subjectivism denies the ethicist an intersubjective position from which to assess or issue advice. This common view is both importantly right and importantly wrong. We can see how it is importantly right by contrasting ethical judgments with legal judg­ ments. It is an integral part of our legal system that legal issues can be authoritatively settled by specified

institutions. The court’s role is to impose a public judg­ ment as to what should or should not be done. There is no analogous ethical institution and to this extent the skep­ tical view about ethics is right. If we disagree about an ethical matter I can think you mistaken in a way that, after enough appeals, will seem merely perverse in the legal case. My moral views are arrived at by me and there is no ethical court who can overrule me. Each person’s assess­ ment of the right thing to do is in this sense at least as good as anyone else’s. But we need to be careful about the implications of this. The idea that ethics is ‘personal’ in the sense that I cannot be definitively overruled by others in ethical matters does not mean that ethics is personal as taste is personal, and the quick sketch above is impor­ tantly wrong about this. There are a number of related differences that show the cases to be importantly differ­ ent. I will simply outline the central ones here. For one thing, if my tastes change I do not suppose that I was mistaken and that I have now come to the correct view: I now like olives although I once did not, but I do not think now that I was mistaken about the taste of olives then. But this is just what I am likely to think if I change my mind over a moral matter. If I once thought abortion was always wrong and now think it at least sometimes right, then I will probably think now that I was mistaken then. The idea that ethical judgments are just matters of taste does not seem to capture this feature of moral judg­ ments. For another, the way in which taste is personal seems to make certain kinds of disagreement over matters of taste impossible. We do not really disagree when one of us says ‘‘Olives taste good’’ and the other says ‘‘Olives taste bad.’’ We can each sincerely and correctly assert our view. Expressions of ethical judgments do not seem to be like this. If they were, two people expressing what we nor­ mally take to be conflicting ethical views would not be expressing conflicting views at all. They would be like two people ‘disagreeing’ over the taste of olives. We might think that a view of ethics that cannot explain our percep­ tion that there is a genuine disagreement between proand antiracists cannot be adequate. Perhaps more tellingly, if ethical judgments were just matters of taste, it would be odd and futile to try to convince someone that their moral views were mistaken, just as it is odd and futile to attempt to convince someone obviously enjoying their olive that they are mistaken – that they are not really enjoying it at all. But our ethical views can be changed by argument and reason. We can change our ethical views nonarbitrarily, in response to argument and discussion, in a way that seems quite mysterious in matters of taste. Ethics then is not just a matter of taste. We can make sense of the idea of genuine moral disagreement, it seems to make perfectly good sense to try to convince people they are mistaken about ethical matters, and we change our minds about such matters in response to argument and reason.

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Ethics and the Role of Reasons

The Possibility of Ethical Expertise

This preceding discussion seems to allow us to reject at least the simple versions of ethical skepticism and rela­ tivism, and hence to respond to the challenge those views pose to applied ethics. It does so by highlighting the role of reasons in ethics and in doing so it also tells us something about the nature of ethics and ethical exper­ tise. As to the nature of ethics, granting a central role to reason allows us to give, at least in outline, an account of what must be true of a position if it is to count as an ethical position. If a position of mine is to count as an ethical position I must produce reasons for it. This is not to say that I must articulate a complex moral theory or even state a moral principle that I am following for my position to count as moral. But in practice there are certain sorts of reasons or responses which will not do: Because a mere prejudice, for instance, is precisely a belief that is not supported by reasons, I cannot offer mere prejudices in support of my position. Similarly, mere emotional reactions will not count as reasons. If all I can say in support of my claim that business is wicked is that business makes me sick or furious, I am not offering a reason that would show my position to be an ethical position. (This is not to say that ethical positions should be unemotional or dispassionate. On the contrary, we should care about our moral views. But emotional reactions should be prompted by or grounded in moral judgments and not vice versa.) And if my posi­ tion is based upon propositions of fact which are not only false but so implausible that they fail even the minimal standards of evidence I impose upon others I will likely be offering not reasons but instead showing that I can think of no genuine reasons for my position at all. These will not be the only sorts of reasons that will not do in moral discourse – blind appeals to authority or prece­ dent may well go on the list as well – but they will be enough to give a sense of the constraints posed by the requirement for reasons. The list is supposed to be illustrative rather than exhaustive. Once we have allowed a place for reasons in moral discourse we can see that there will be other, more general, restraints as well. Perhaps most importantly, the role of reasons imposes a constraint of consistency. Consistency requires that if there are exactly the same reasons in sup­ port of one course of action as there are in support of another, then those actions will be equally right or equally wrong – they will be equally well supported or undercut by reasons. If I object to racism on the grounds that ‘all people are equal’ then I must also object to those manifesta­ tions of other prejudice, such as sexism, that deny that principle: If I do not then it will seem that in one or other or both of the cases I am not really accepting ‘all people are equal’ as a reason at all. My position will not in fact be based on the reason or reasons I cite.

Recognizing the role of reasons and reasoning in ethics allows us to address another influential and related chal­ lenge to applied ethics that denies the possibility of ‘ethical expertise.’ Because there cannot be such expertise, the claim goes, nobody can purport to advise others what to do, and to the extent that that is just what applied ethicists do purport to do, their endeavor is illegitimate. But recognizing the role of reason in ethics allows us to give an account of ethical expertise. Ethical expertise will consist in expertise in ethical reasoning. Just what such expertise consists in is no doubt controversial, but, again, a list of characteristics is likely to include the following. Because ethical expertise consists of expertise at a certain form of reasoning, ethical experts will need to be proficient reasoners. They must be able to reason logi­ cally, to avoid fallacies and inconsistencies, to clarify and analyze concepts, to construct and assess arguments and positions. Of course – to hark back to the expansionist caveat offered in the opening section – philosophers do not have a monopoly on these sorts of reasoning skills, although perhaps it is fair to say that philosophy endorses them more explicitly than most disciplines. Ethical exper­ tise will require a certain body of knowledge: knowledge of philosophical problems, questions, positions, and the­ ories (e.g., ethical theories, theories of knowledge, views about human nature and society); knowledge of the assumptions, consequences, and criticisms of different positions or views; knowledge of types of arguments, and likely problems (e.g., fallacies like false dichotomy or ambiguity of scope). Ethical expertise will require commitment to certain values associated with good reasoning, such as commitment to understanding issues and views, commitment to reasoned support and evalua­ tion of beliefs or claims, willingness to question key assumptions and challenge received wisdom, and interest in finding solutions to philosophical questions and problems. These values are a significant part of the ethical expert’s arsenal because they amount to a commitment to apply the reasoning skills noted above. Being able to recognize fallacies and inconsistencies will be of no value to the ethical expert if she is not prepared to follow those skills where they lead. And applied ethicists must be well informed about the relevant facts of the cases they address. If they are to give advice on the ethics of parti­ cular fields or endeavors they must have enough knowledge of the subject area and the case at hand to appreciate the demands and problems that are either peculiar to or commonly encountered in that area. The hope, then, is that recognizing the role of reason in ethics allows us a notion of the ethical expert. In sum, this expert will be a person who is skilled at a certain form of reasoning, who has at her fingertips a body of relevant knowledge, and who is committed to using those skills

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and knowledge to assess the strengths and weaknesses of moral arguments and positions. Note that there is nothing in this quick characterization to suggest that the ethical expert has some antecedent grasp on moral truth. Plato argued that philosophers should rule because they had ‘‘the capacity to grasp the eternal and immutable . . . to which they can turn, as a painter turns to his model, before laying down rules in this world about what is admirable or right or good.’’ The expert sketched above is a more mundane character. Her skill is procedural rather than substantive. Recognizing the way in which moral positions depend upon reasoned support, she is skilled in constructing and assessing such support. Her skill and contribution does not depend upon her grasp of anything like ‘eternal and immutable moral truths.’ Rather, it is grounded in more accessible standards of reason and argumentation.

Applied Ethics and Ethical Theory The Criticism of Theory Another cluster of challenges is more specifically directed at the role of ethical theories or principles in applied ethics, claiming, in short, that we should not turn to ethical theories for practical guidance. We need only note the fairly standard conception of applied ethics as ‘the application of an ethical theory to some particular moral problem or set of problems’ to see the intended force of the challenge. I begin assessment of the challenge by sketching its target – the conception of moral theory and practice to which its advocates object. Providing such a sketch is a somewhat risky business, because the chal­ lengers are far from being a homogeneous group, although I shall concentrate on the core of the position upon which there is likely to be considerable consensus among ‘anti-theorists.’ First, moral theorists are said to be preoccupied with highly abstract, universal rules and principles. Annette Baier, for example, defines a normative theory as a system of moral principles in which the less general are derived from the more general and criticizes moral theorists’ ‘‘prejudice in favor of formulated general rules.’’ Second, anti-theorists portray moral theory as severely reduction­ ist; as insisting that all moral values can be gathered under some single standard. One trenchant critic of applied ethics, Cheryl Noble, maintains that this ‘monism’ is necessary, given theorists’ desire to bring the apparently endless diversity of particular judgments under a single principle or hierarchy of principles. Third, theorists are said to conceive of moral reasoning as essentially deduc­ tive: assuming that for every moral problem there is a correct decision, which will issue from a deductive pro­ cedure that rational moral agents must follow in deciding what to do. Hence Bernard Williams claims that the

desire to produce ‘‘a rationalistic decision procedure’’ is precisely what issues in ethical theory. Anti-theorists reject this deductive picture. Moral judgments are gener­ ated, they maintain, by attention not to general principles but to the particularities of actual cases and situations. Thus John McDowell maintains that morality is ‘‘uncodi­ fiable’’ and writes that ‘‘one knows what to do (if one does) not by applying universal principles but by being a certain sort of person: one who sees situations in a certain way,’’ and Martha Nussbaum argues for the priority of percep­ tion over rules, claiming that ‘‘to confine ourselves to the universal is a recipe for obtuseness.’’ For the same reason anti-theorists stress the importance of judgment, as opposed to deductive skill, because the competent moral reasoner will be the person who can resolve conflicts between irreducibly competing values and irresolvable claims. In sum, the clearest target of the challenge direc­ ted at the role of theory in applied ethics is one according to which applied ethics is concerned first with the elaboration of general ethical theories – egoism, utilitar­ ianism, and Kantianism are the familiar classics – each of which purports to have discovered the ultimate principle of ethics, one of which selected and applied to give con­ crete guidance in concrete situations. Applied ethics texts that begin with a survey of the usual theoretical options no doubt contribute to the currency of the conception. There are short and long responses to the challenge: The short one is simply to accept the critique and do applied ethics without theory. Many applied ethicists describe themselves as doing just this, embracing the anti-theorist’s vision more or less enthusiastically, some seeing the invitation to focus less on general principles and more on the details of particular cases as exactly the right recipe for applied ethics, and as an opportunity to abandon a flawed and theory-bound conception of ethics and ethical deliberation. In the remainder of this article, however, I explore a longer response to the anti­ theorist’s challenge, outlining an approach to ethical the­ ory and applied ethics that accepts certain aspects of the anti-theorist’s case but that seeks to retain some role for theory. Ethical Theory for Applied Ethics Why care about theory?

Given that many applied ethicists do at least describe themselves as doing applied ethics without theory, it may be worth beginning by saying briefly why one might hope to take the other route: Why attempt to retain a role for theory and principles? There are, I think, a number of reasons. First, anti-theorists commonly claim that practices must be evaluated ‘from within.’ Eschewing recourse to theoretical criteria external to particular practices, they stress the importance of attention to loyalties,

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conventions, traditions, and historical and ‘local’ explana­ tions. But this is to severely limit the possibility of criticism of social practices. As two defenders of antitheory write, ‘‘moral and political norms cannot be rejected on the basis of critical standards contrary to the fundamental values and practices of the community.’’ One reason to try to hold onto theory is that effective criticism seems at least occasionally to require us to step outside the particular practices of the communities with which we are concerned, to have recourse to general standards or principles of evaluation. This is not to say that criticism or evaluation requires ‘Archimedean’ theoretical points. We might proceed by asking how one aspect of our practice coheres with others, but even this sort of ‘immanent’ inquiry requires that we have some sense of which aspects of practices are more important than others and why, and these are theoretical questions. Second, general moral principles may simply be useful to us in a variety of ways. There are obvious advantages in being able to conceive and describe ‘my situation’ as of a kind with one already deliberated upon: Principles give me a way of accessing and considering relevant moral conflicts, of discovering and indicating how such conflicts were addressed previously, and of appreciating and advo­ cating alternatives that might otherwise be overlooked. Subsuming my case under a general principle may save me time, effort, and anguish; I may take comfort and support from the fact that others have been down a relevantly similar path before me. Furthermore, princi­ ples may provide me with both greater grounds for confidence as to the response of others to my case, and a ready way of presenting my claims to them, because I shall at least often be less concerned that the outcome to particular cases will depend upon immediate percep­ tions and new deliberations. General theories will serve similar goals, and, depend­ ing upon how one thinks moral theories function in deliberation they may do rather more beside. Suppose one thinks of moral theories not just as elegant and abstract sets of rules and principles, but as motivated by ‘actual’ moral concerns and perspectives. The reason we are troubled by clashes between concerns such as those highlighted by consequentialists and deontologists, on such an account, is not because the authors or advocates of these positions have made such a fine job of construct­ ing them ex nihilo. It is rather because those theories appeal to or remind us of moral concerns we have inde­ pendently of the theories themselves and because they direct us to perspectives that we recognize as plausible. Here the power of the theories is to be explained by the fact that they are the careful working out of the implica­ tions and aspects of this or that plausible and antecedent concern or viewpoint. Theories would serve not as authoritative major premises in some deductive syllogism, but rather as deliberative tools, drawing attention to

aspects of the case to which attention should be given and that might otherwise be ignored or overlooked. The deontological tradition draws attention to the claims of individuals to a certain sort of respect, the consequen­ tialist to the importance of regard to the results of our actions, the communitarian to the claims of community, and so on. What must theories be like?

What must be true of ethical theories and applied ethicists attitudes toward them if they are to serve the sort of role sketched here? Monism and pluralism

The approach implies acceptance of some form of ‘theory pluralism’ – it supposes that properly conducted moral inquiry will have regard to more than one theory or principle of right action and rejects the idea that there is one uniquely correct theory or principle. Indeed, it claims that recognizing the pull or gravity of different theories or principles on moral problems is a desirable heuristic to adequate deliberation. Once we put aside the search for a single correct moral theory or principle, we are likely to find the careful and abstract statements of concern and perspectives that we find in normative theory, useful as a reminder precisely of the complex dimensions of the cases we face. Deliberative strategies and moral deductivism

We must also put aside the aim of developing all-purpose, formalized moral decision procedures (although it is per­ haps worth noting that it is quite hard to find theorists who have in fact pursued the aim). Moral deliberation is not the straightforward application of a favored theory or principle. Rather, theories and principles are used to clarify, to diag­ nose, to structure discussion. They allow us to approach moral problems from as comprehensive a position as we can manage. On this story there is no simple application of a favored theory or principle to a situation in the hope of generating ‘the right moral answer.’ Rather, theories and principles are used as one part of a process of approaching moral problems. They are tools in moral reasoning rather than self-contained machines for the generation of moral answers. Moral deliberation should be conceived of not as a matter of simply applying decision procedures consisting of lists of easy-to-follow rules, but as a matter of approach­ ing particular cases in the light of general and perhaps competing theories and principles, of previous relevant deliberations, and of appropriate knowledge of the parti­ cularities of the case. Irresolvable problems

Applied ethicists must recognize the reality of irresolva­ ble problems. Given competing values, it may not be possible to determine which act is morally right or

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which person is more admirable morally. The acceptance of the possibility of irresolvable problems does not put an end to the need for applied ethics. Irresolvable conflict, however, is likely to make the skills of applied ethicists more rather than less important. Choices must still be made in the face of such problems. Applied ethicists may help in a number of ways: They may simply alert people to moral conflict. Those caught up in difficult moral deliberations may miss points that, once alerted, they concede ought to be included in a critical assessment of the situation. Ethicists may help explain why there is a moral conflict in a particular situation, pointing to the different types of moral value that are present in the case at hand, showing why they cannot be reduced to a com­ mon denominator, and why there is no single right answer in this particular case. They may be able to point out the advantages and dangers of some responses over others, given the parties’ own commitments and concerns. This may simply be a matter of telling people what happened in relevantly similar cases or may be more prescriptive. In either case, those in difficult situations may be helped by consideration of how a variety of theories and values bear upon a case and how other people faced with similar dilemmas arrived at decisions, as well as by learning of the consequences of such decisions. Irresolvable pro­ blems, this is to say, may provide especially fertile ground for the skills of the ethical expert. This may be an appropriate point to note a likely effect of theory or value pluralism. Acceptance of pluralism may be important not just because different theories at least occasionally produce different recommendations in the same case, but also because rival theories may differ about what is to count as a moral problem at the outset. Situations identified as problems by one theory may not be problems at all for the advocates of another theory: Particular distributions of wealth may seem deeply problematic for (some) consequentialists but completely acceptable for rights theorists or for consequentialists of a slightly differ­ ent stripe. There does not seem to be any theory-neutral way of establishing a list of moral problems let alone common resolutions. To exponents of radical versions of this latter concern, the current concerns of applied ethicists may seem to be no more than points of conflict between ethical positions that have come to dominate public ethical discourse. For the moment it will do to note that pluralism is likely to increase at least the appearance of irresolvable conflict. Empirical responsibility

A common strand in the opposition to moral theory is the complaint that it ignores the particularities of cases and practices, favoring universals while disregarding ‘‘the multi­ plicity and diversity of the local and historical attachments that give sense to a normal person’s life.’’ It might seem that applied ethics itself is a sufficient response to this criticism,

but of course conceived of as the mere application of gen­ eral principles to particular cases it fails to assuage antitheorists. Furthermore, some critics have, in effect, doubted the genuineness of philosophers’ interest in applied ethics, complaining that even when philosophers do address parti­ cular moral problems, they tend to be interested in the significance of the problem for theory rather than the problem itself. At times the complaint seems well directed. It is no doubt true that some philosophical treatments of particular problems have been primarily concerned to refine and improve general theories rather than to increase understanding of the problem under consideration. Some discussions of abortion, for instance, seem concerned less with abortion per se than with the desire to shed further light on the intricacies of rights theories of moral obligation. When they approach particular moral problems in this fashion, philosophers are hardly involved in applied ethics at all. Suffice to say that applied ethicists must guard against a merely instrumental interest in the problems to which their skills are applied. Applied ethicists must approach theory with a genuine conviction that a wide variety of historical, psychological, and cultural forces are clearly relevant to any critical understanding of human morality and that such factors must be taken into account in any adequate theory. Applied ethics must take empirical matters seriously. No one who proposes to do meaningful work in applied or professional ethics can do so without first acquir­ ing extensive empirical knowledge of the area being studied. Again, the applied ethicist requires an extensive knowledge of the values, organization, and practices of the groups or communities under consideration.

Conclusion: Theory and a Return to Ethical Expertise I have been concerned in this last section to sketch an alternative conception of moral theory with an eye to the demands of applied ethics. The conception is pluralist, rejects the hope of a universal and mechanical decision procedure, accepts the reality of irresolvable conflicts, and acknowledges the need for theory to be grounded in and responsive to sound empirical knowledge. It is intended to direct attention to an approach to ethical deliberation and applied ethics rather than to any parti­ cular normative theory or principle. My aim has been to respond to legitimate concerns about the role of theory in applied ethics in a way suggestive for the role of applied ethicists. This last hope might be more plainly realized by linking some of the comments in this final section back to the earlier account of the ethical expertise. The conception of ethical theory and practice sketched here portrays ethical deliberation not as a matter of simply applying decision procedures consist­ ing of lists of easy-to-follow rules, but as involving

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consideration of particular cases in the light of general and perhaps competing theories and principles, of previous relevant deliberations and of appropriate knowledge of the particularities of the case. I portrayed the ethical expert as a person skilled at a certain form of reasoning, who has at her fingertips a body of relevant knowledge, and who is com­ mitted to using those skills and knowledge to assess the strengths and weaknesses of moral arguments and positions. Her skill, I suggested, was procedural rather than substan­ tive. Recognizing the way in which moral positions depend upon reasoned support, she is skilled in constructing and assessing such support. These skills are intended to allow the ethical expert to respond to the demands of applied ethics in a manner that does justice to our firmest convic­ tions, to what we take to be our best social and moral theories, and to what we know and believe about the world. It needs to be remembered that what we seek in the end in applied ethics are ‘ways of going on.’ But, espe­ cially given the significance of many of the issues applied ethicists face (sometimes, indeed, they will be matters of life and death) we need ways of going on that we can live with as individuals and as communities. Pace Plato, we do not have timeless moral truths on our shelves that can be applied mechanically to particular cases. Nor are we

completely without resources to construct coherent defensible moral positions that take seriously – which is to say take in a way that neither ignores nor accepts uncritically – the moral judgments, principles, and the­ ories upon which our communities are founded. When we do so as applied ethicists, we can give guidance as how we should go on in ways that we can live with as individuals and communities. See also: Consequentialism and Deontology; Egoism and Altruism; Kantianism; Theories of Ethics, Overview; Utilitarianism.

Further Reading Bayles M (1984) Moral theory and application. Social Theory and Practice 10: 97–120. Beauchamp T (1984) On eliminating the distinction between applied ethics and ethical theory. Monist 67: 514–531. Gert B (1984) Moral theory and applied ethics. Monist 67: 532–548. MacIntyre A (1984) Does applied ethics rest on a mistake? Monist 67: 498–513. Noble C (1982) Ethics and experts. Hastings Centre Report 12: 7–15. Rosenthal D and Shehadi F (eds.) (1988) Applied Ethics and Ethical Theory. Salt Lake City: University of Utah Press.

Applied Ethics, Overview ER Winkler, University of British Columbia, Vancouver, BC, Canada

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, volume 1, pp 191–196, ª 1998, Elsevier.

Glossary Contextualism A complex theory about moral reasoning and justification that deemphasizes the role of universal principles in determining right actions. In this view, moral judgments are provisionally justified by defending themselves against objections and rivals. The process of justification is essentially continuous with a case-driven, inductive process of seeking the most reasonable solution to a problem. Such justification is carried out within a framework of central cultural values and guiding norms that are seen as having presumptive validity unless they themselves are called into question by rational doubts. Conventionalism The idea that conformity with accepted or conventional moral standards and rules of a community makes actions right. This is an extremely conservative idea, as it leaves little or no room for moral progress or improvement. Hence it is usually considered a fatal weakness in a normative theory if it reduces to, or implies, conventionalism. Meta-ethics Contrasts with normative ethical theory. Whereas normative ethics is concerned with deciding which actions are right and wrong, meta-ethics is concerned with the meanings of central moral concepts such as ‘good’ and ‘right,’ and with an account of the logic or structure of moral reasoning and justification. Moral expertise The idea that there may be forms of moral knowledge and experience that qualify someone as a kind of expert in moral matters, if not in general then in relation to one or another area of practice, such as medicine. Normative ethical theory A systematically developed theory about the nature and the determination of moral right and wrong. Principalism A traditional view of moral justification in which a particular action is ultimately justified by

Introduction Applied ethics is a general field of study that includes all systematic efforts to understand and to resolve moral pro­ blems that arise in some domain of practical life, as with medicine, journalism, or business, or in connection with some general issue of social concern, such as employment

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showing that it conforms to a universal ethical principle that is grounded in the most abstract levels of normative theory. Most contemporary expositions of normative theory involving principalism, however, allow for the operations of reflective equilibrium theory in constructing and testing for principles. Reflective equilibrium theory A theory holding that there is a dialectical relationship between our considered moral judgments about concrete cases and our commitments to principle. Reflection on principles sometimes overrides considered judgment, and considered judgment sometimes forces revisions in our principles. What we are seeking, then, in all systematic moral reflection, is a coherent integration, or equilibrium, between our general principles and our particular judgments. Utilitarianism A form of general normative theory that holds that the rightness or wrongness of actions is wholly determined by the goodness or badness of their consequences. Classical utilitarianism defines the value of consequences in terms of their total contribution to the happiness or well-being of all those affected by an action, counting each person’s happiness as equally important. Contemporary forms of utilitarianism may focus instead on aggregate satisfaction of individual interests or preferences. Virtue ethics A general type of normative ethical theory that displaces traditional concentration on the rightness or wrongness of action with a primary concentration on certain defined dispositions of character identified as virtues. In such a theory, virtues are seen as those dispositions that are most important in realizing some ideal, like self-realization, or that are most important to the performance of some morally justified social function, as in the practice of business or medicine.

equity or capital punishment. There are today three major subdivisions of applied ethics: biomedical ethics, concerned with ethical issues in medicine and biomedical research; business and professional ethics, concerned with issues arising in the context of business, including that of multi­ national corporations; and environmental ethics, concerned with our relations and obligations to future generations, to

Applied Ethics, Overview

nonhuman animals and species, and to ecosystems and the biosphere as a whole.

Rise of Applied Ethics Interest in increasing our understanding of ethical issues concerning health care, business, the professions, and the environment has grown markedly over the last quarter century. When considering the main forces giving rise to this increased interest in applied ethics, one naturally thinks first of biomedical ethics, the most mature and well-defined of the divisions of applied ethics. Although abetted by the ‘liberation’ movements of the 1960s and 1970s, biomedical ethics emerged principally in response to various issues and choices that were created by new medical technologies. The traditional values and ethical principles of the medical profession came to be regarded as inadequate in these new situations, because they often seemed to require decisions that appeared to be clearly wrong. For example, the principle of the sanctity of human life permeated the ethos and ethics of Western medicine for centuries and found formal expression in medical case law. As is now well accepted, however, a central requirement of the sanctity principle – that the physician must make every possible effort to preserve life – simply became too burdensome in the contemporary medical context to continue to support a consensus as to what is right concerning life and death decisions. There are obvious and important differences, at a general level, between the main divisions of applied ethics. Biomedical ethics is focused on a particular insti­ tutional setting and concerns the practices of a closely associated set of professions. Business ethics is broader in scope because the field of business is so much more diverse than the medical field. Environmental ethics obviously has an even broader purview, including the attitudes and behavior of all of us, particularly our basic social patterns of resource use and consumption, and our fundamental moral attitudes toward other animals and the natural world. In spite of these and other differences, however, busi­ ness ethics and environmental ethics still have the same basic provenance as biomedical ethics. Within the context of traditional assumptions and values, modem industrial and technological processes, formerly seen as the very engines of progress, have led to global crisis. The raison d’e´tre of environmental ethics is to criticize and improve the values and principles in terms of which we understand our responsibilities to future generations, our relationship to nonhuman animals and other living things, and our place in nature generally. Traditional values and princi­ ples of Western business practice have also come to seem inadequate for the complex realities of the modem world. This is particularly true regarding the social

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responsibilities of business, especially those concerning public health and safety and environmental risks. Scandals on Wall Street and the like may prompt endow­ ments for ethics education in business schools, but they are not philosophically significant enough to explain the high level of interest business ethics currently attracts. A more likely explanation concentrates on such things as the realization that the traditional corporate obligation to maximize profits for shareholders, within the limits of applicable law, can lead much too easily to exploitation, environmental degradation, and other harms. Viewing the rise of applied ethics generally in this light, it is not surprising that as moral quandaries grew, first in bioethics and then in the other major areas, hope for progress shifted from tinkering with traditional values to moral philosophy and foundational ethical theory. At the same time, the general field of applied ethics has given rise to various subdivisions of a more concentrated kind, such as management ethics, nursing ethics, and journal­ istic ethics (including all news media). Likewise, the field has developed so as to include much focused attention on ethical issues connected with a wide range of social con­ cerns, such as discrimination and affirmative action, feminism, world hunger and poverty, war and violence, capital punishment, and the rights of gays and lesbians.

General Ethical Theory and Principalism As applied ethics has grown into an established field of study and practice, a number of important questions have arisen about the nature of the field and the problems within it. Paradoxically, perhaps, one of the most funda­ mental of these concerns the usefulness of ethical theory. Traditional moral philosophy has virtually identified the possibility of genuine moral knowledge with the possibi­ lity of universally valid ethical theory and has supposed that all acceptable moral standards, of every time and place, can be rationally ordered and explained by refer­ ence to some set of fundamental principles. ‘Perfect’ theoretical unity and systematization may be impossible to obtain, because there may be a plurality of basic prin­ ciples that resist ordering. But it is generally assumed that such principles will be few in number, such that substan­ tial and pervasive order may be discovered. A corollary to this conception of moral knowledge is the view that moral reasoning and justification are essentially a matter of deductively applying basic principles to cases. However, contrary to the expectations created by these methodological assumptions, many philosophers who ventured into clinics and boardrooms were cha­ grined to discover how little usefulness this deductive approach had in confrontation with genuine moral problems. Efforts to resolve real moral problems in med­ icine with some version of Kantian or utilitarian theory,

176 Applied Ethics, Overview

for example, immediately confront the problem of the abstractness and remoteness of general ethical principles. Of course, one wants best to serve the important interests of all concerned (utilitarianism) and to respect the rights and personhood of the affected parties (Kantianism); but for real problems of practice the most important and difficult question often is how best to understand the current situation in just these terms. What, for example, does it mean to respect properly the personhood of a potential anencephalic organ donor? In the field of bioethics, experience of this sort gave rise to a midlevel theory composed of three main princi­ ples, those of autonomy, beneficence (including nonmaleficence), and justice. This theory was systemati­ cally developed by Tom Beauchamp and James Childress in their modern classic, Principles of Biomedical Ethics. This theory claims that its principles are grounded in our most central traditions of normative ethical theory while also offering enough content to guide practical moral judg­ ment in medicine. It thus purports to overcome the problem of theoretical abstractness and also to keep faith with the basic philosophical idea that applied ethics is continuous with general ethical theory. Biomedical ethics, as a primary division of applied ethics, is not a special kind of ethics; it does not include any special principles or methods that are specific to the field of medicine and not derivable from more general sources. Rather, the field of medicine is governed ultimately by the same general normative principles that hold good in all other spheres of human life. As this approach has come to dominate bioethics, it has inspired similar forms of theoretical con­ struction in other areas of applied ethics, notably in business and professional ethics. Gradually, however, many philosophers and others who have worked extensively in applied ethics have moved toward a rejection of the traditional idea of devel­ oping and applying general normative theory. Their experience in the field has convinced them that the appearance of universality achieved by general normative theory is necessarily purchased at the price of too rigidly separating thought about morality from the historical and sociological realities, traditions, and practices of particu­ lar cultures. A result of this separation, as already mentioned, is a level of abstraction that makes traditional ethical theory virtually useless in guiding moral decision making about real problems in specific social settings. Moreover, these critics see essentially the same problems of ahistoricism and abstraction reappearing with the stan­ dard midlevel normative theories, in bioethics and elsewhere. In addition to this, it appears to many philo­ sophers working in applied ethics that most of the real work of resolving moral problems occurs at the level of interpretation and comparison of cases. Recourse to gen­ eral normative principles, even midlevel ones, seems never to override case-driven considered judgment. On

the contrary, conflict between a putative principle and the extensive consideration of cases seems always to result in refining the interpretation of whatever general principle is involved. This tendency is important in connection with contemporary efforts to refine the deductive model of moral justification by incorporation of wide reflective equilibrium theory. For it is crucial to reflective equili­ brium theory and the defense of principalism that general principles override considered judgments, at least much of the time. Concerns about ahistoricism and abstractness, and the problems of application that they create, have produced a powerful skepticism about the very possibility of con­ structing a perfectly general normative theory. By now this ancient philosophical quest appears to many to be inconsistent with the most immediate, natural, and defen­ sible conception of morality. Viewed from the perspective of modem history, sociology, and anthropology, moral­ ities are seen as social artifacts that arise as part of the basic elements of a culture – its religion, its social forms of marriage and family, its economy, and so forth. Morality is thus an evolving social instrument that serves a variety of very general ends that are associated with different domains of social life and are pursued within the context of changing historical circumstance and significant epis­ temic limitations. As such, a morality may be criticized in terms of how well or ill it serves identifiable and worthy social ends. But, by the same token, what is good or right in some realm of life, within a given cultural setting, must be a function of a highly complex set of conditions, including psychological factors and patterns of expecta­ tions that are themselves created by social custom and convention. In light of the very different historical origins of diverse social forms, across so many different cultures, there seems to be no good reason to assume that all defensible moral standards will be explicable in terms of a deductive relationship to some more or less unitary set of basic principles with more or less determinate norma­ tive content. Although such a theoretical reduction or reconstruction may be possible, in spite of cultural diver­ sity and in spite of the overwhelming failure of all previous efforts to gain general acceptance of any set of fundamental moral principles, many now regard this enterprise as exceedingly doubtful, even philosophically naive.

Contextualism and Related Developments Skepticism about the possibility of normative theory on a grand scale and growing doubts about the feasibility of solving moral problems by deductively applying general principles have given rise to a plurality of approaches and ways of conceptualizing problems within the field of

Applied Ethics, Overview

applied ethics. One general approach to practical moral decision making that is currently gaining favor is contex­ tualism. As variously developed in the current philosophical literature, contextualism has tended pri­ marily to be critical of established beliefs about ethical theory, rather than constructive of better models of moral reasoning, but the emphasis is now shifting to include the latter. From the contextualists’ point of view, it is unne­ cessary to strive for a universally valid ethical theory since there are more realistic ways of accounting for moral rationality and justification. In place of the tradi­ tional, essentially top-down model of moral reasoning and justification, contextualism adopts the general idea that moral problems must be resolved within the interpretive complexities of concrete circumstances, by appeal to relevant historical and cultural traditions, with reference to critical institutional and professional norms and vir­ tues, and by relying primarily upon the method of comparative case analysis. According to this method we navigate our way to a practical resolution by discursive triangulation from clear and settled cases to problematic ones. Moral judgments are thus provisionally justified by defending themselves against objections and rivals. So conceived, justification is essentially continuous with a case-driven, inductive process of seeking the most reason­ able solution to a problem within a framework of shared values that are seen as having presumptive validity unless rational considerations call them into question. Closely associated with questions concerning the use­ fulness of general normative theory is the question of how we should conceive of the enterprise of living and acting morally. While Kantians and utilitarians focus on follow­ ing appropriate rules and principles, an increasing number of philosophers in the field of applied ethics argue that we should focus on acquiring virtues appro­ priate to fulfilling our roles in particular cultural and institutional settings. This conception is consistent with a general contextualist orientation in rejecting the deduc­ tive model of moral deliberation. Insofar as proponents of virtue ethics are concerned with ethical theory at all, it is a much more empirically oriented theory than moral philosophers have traditionally sought. Such theory seeks to understand the instrumental effects of various ways of conceptualizing and judging action and character within the context of the social and institutional roles persons play. Unlike contextualism, however, rather than focusing directly on the structure of moral reasoning about right action, virtue ethics tends to see right action as indirectly determined by considering what actions would flow from the operation of relevant virtues. As already emphasized, the general question that divides practitioners of applied ethics is where we should look in our quest for standards of justification for moral judgments. For some, the turn away from the deductive

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model of problem solving in applied ethics has spurred renewed interest in procedural aspects of group moral deliberation and decision. They have begun to consider much more seriously the question of what features a decision procedure must have if its conclusions are to be regarded as morally justified. There seems to be consider­ able support for the view that a justified moral judgment must represent, in some sense, a free and informed con­ sensus of all interested parties. The central problem is to gain a fuller understanding of the nature of the biases and distortions that affect decision procedures in particular social and cultural contexts, and thus to clarify the con­ ditions under which we can be confident that we have at least approximated such a consensus. Clearly, rejecting the deductive model of moral pro­ blem solving does not entail rejection of all moral theory. Significant moral reform in social life depends upon securing some kind of theoretical purchase on established practice and institutional arrangements. Ethical theory in a form that is sufficient to this purpose is therefore neces­ sary. It is necessary in many other ways as well. For example, theory of some sort is necessary even to approach the problem of moral status – what gives some­ thing moral standing such that it is an object of moral consideration in its own right? And only ethical theory can illuminate or resolve such questions as whether the distinction between killing and ‘letting die’ is morally relevant in itself, or whether actual or hypothetical con­ sent under certain ideal conditions is more important in justifying certain kinds of social institutions and policies. These questions, and countless others like them, simply are theoretical questions that arise naturally and unavoid­ ably when attempting to make moral headway in a complex and changing world. Theories dealing with such questions as these, however, do not provide decision procedures for solving moral problems. Rather, they help us to extend and deepen our understanding of the com­ plex set of moral concepts in terms of which we interpret our problems and dilemmas, and so point the way to improving our values and social practices. The most relevant and useful theoretical constructions in applied ethics are likely to be those that are impelled by an informed understanding of the real conflicts and difficulties of practical life. The recent history of moral philosophy’s contributions in the world of practice bears this out. Responses to particular theoretical issues arising in connection with problems like abortion and euthanasia, or concentrated efforts in areas like environmentalism and animal rights, have produced moral philosophy’s most significant contributions to the important moral issues of the day. Moreover, the best work of this kind in applied ethics is currently exerting considerable influ­ ence on some of the most interesting work concerning ethical theory.

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One of the consequences of the turn toward contextu­ alism and virtue ethics has been a renewal of efforts to better understand the nature of practical moral reasoning and the norms governing it. This kind of exploration is presently fostering a kind of redirected meta-ethics. Rather than concentrating on the analysis of basic ethical concepts and the meaning of moral propositions, the focus is on the structure of actual moral reasoning, including comparisons with law and science; on the conditions for properly evaluating moral precepts and rules; and on the limits of rational decidability in morals. Meta-ethical theory of this kind, which might strive ultimately to systematically illuminate what abstract conditions social moralities, or their parts, must meet in order to be reason­ able or defensible, may be philosophically very valuable. This kind of theory can at least serve, if not finally fulfill, a powerful intellectual desire for ordered, systematic understanding. And it could be helpful indirectly in prac­ tical terms as well.

Questions of Conventionalism, Moral Expertise, and Moral Psychology The intensely practical and consensus-driven nature of applied ethics would alone serve to raise a question of its critical and reformative potential, but given the current trend toward meta-level contextualist accounts of moral reasoning and justification, this issue becomes acute. From such a perspective, how can applied ethics avoid being inherently conventional and conservative? How, in other words, can applied ethics secure a sufficiently cri­ tical perspective on conventional moral and evaluative practices to be capable of genuine and, if necessary, radi­ cal reform? Environmental ethics perhaps deserves special attention in this regard because so much of its thrust is directed at deep, even revolutionary, reform in moral attitudes toward other animals and the natural world. Certain fields of applied ethics have developed to include professional consultation and the representation of so-called ‘ethicists’ within institutional settings, on gov­ ernment commissions and committees, and in the media and the courts. This has resulted in much recent discussion of the whole issue of moral expertise. Can there be any such thing as a moral expert or experts on the important ethical dimensions of certain domains of practice? Of course, if moral reasoning and decision making were pri­ marily a matter of defending some general principle and applying it to cases in a predominantly analytical way, then, presumably, the skills associated with this process would constitute a sort of moral expertise that could be linked to certain sorts of training and preparation. In parti­ cular, training in the history of normative theory and analytic philosophy would appear especially relevant,

even indispensable. On the other hand, a more contextu­ alist approach to the process of moral reasoning will recognize a central role in moral discourse for a variety of skills and intellectual, imaginative, and emotional resources beyond those that are typical of the moral phi­ losopher. Psychological understanding and sensitivity will be seen as crucial, as will sociological knowledge, knowl­ edge of religions and of legal and political realities, and so forth. This point of view, therefore, sees applied ethics as inherently multidisciplinary because it is impossible to locate all the skills and attributes necessary to progress in social morality in the training and skills that are typical of any single profession. Interest in the issue of moral knowledge and expertise is not unrelated to a more general renewal of interest in ‘moral psychology,’ as philosophy has, in certain periods, concerned itself with this field. What, for example, are the principal sources of moral hypocrisy in our times? Or how much does the credibility of one’s moral views depend on their being based on certain kinds of relevant experience? Or what general conditions support a culture in which ethics and moral values are taken seriously?

Acknowledgments Much of the substance of this article is derived from the Introduction to Applied Ethics: A Reader (Winkler E and Coombs G (eds.) (1993) Oxford: Basil Blackwell). See also: Applied Ethics, Challenges to.

Further Reading Beauchamp TL and Childress JF (1979) Principles of Biomedical Ethics. New York: Oxford University Press. Daniels N (1979) Wide reflective equilibrium and theory acceptance in ethics. Journal of Philosophy 76: 256–282. Jonson A and Toulmin S (1988) The Abuse of Casuistry. Berkeley: University of California Press. Noble C (1982) Ethics and experts. Hastings Centre Report 12(3): 7–9. Philips M (1995) Between Universalism and Scepticism. New York: Oxford University Press. Solomon R (1992) Ethics and Excellence: Cooperation and Integrity. New York: Oxford University Press. Winkler E (1993) From Kantianism to Contextualism: The rise and fall of the paradigm theory in bioethics. In: Winkler E and Coombs G (eds.) Applied Ethics: A Reader. Oxford: Basil Blackwell. Winkler E (1996) Moral philosophy and bioethics: Contextualism vs. the paradigm theory. In: Sumner W and Boyle I (eds.) Philosophical Perspectives on Bioethics. Toronto: University of Toronto Press.

Biographical Sketch Earl R. Winkler is an associate professor in the Department of Philosophy at the University of British Columbia.

Archaeological Ethics D McGill, Indiana University, Bloomington, IN, USA C Colwell-Chanthaphonh, Denver Museum of Nature and Science, Denver, CO, USA J Hollowell, The Janet Prindle Institute for Ethics, Greencastle, IN, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Archaeological record Archaeological materials and sites, collections, records, an archaeologist’s fieldnotes, and any other material that can be used as data in the practice of archaeology. Archaeology The scientific or systematic study of people and lifeways in the past based on material remains as evidence. Cultural property Objects of archaeological or ethnological interest that are subject to multiscalar laws governing their ownership and control.

Introduction In recent years, professional ethics have become an inte­ gral part of contemporary discourse, training, and practice in archaeology. The reasons for the growing prominence of archaeological ethics are many but include the flour­ ishing of the illicit antiquities market, the rise of the repatriation movement, the boom of archaeology in the public sector, and the implication of archaeological her­ itages in surges of ethnic violence and armed conflict. Today, archaeological ethics is an important and viable subject in the archaeological literature, and most profes­ sional organizations have actively sought to engage their members in discussions about ethical practices and professional development.

What Is Archaeology? Archaeology is the scientific or systematic study of people and lifeways in the past based on material remains as evidence. The goal of archaeology is to reveal, interpret, and preserve the (mostly) unwritten parts of the past. Archaeologists investigate every imaginable question about human beings and their cultures, including their relationships with their environments, their historical development, their concepts of gender and race, and much more. Archaeology is conducted not only in rural areas, urban areas, and construction sites with trowels and shovels but also in public and private museums, labora­ tories, libraries, and offices.

Cultural resource management In archaeology, cultural resource management is the field of practice responsible for the survey, protection, and management of known and unknown archaeological sites. Cultural resource management archaeologists attempt to mitigate potential damage to the archaeological record done through development projects. Stewardship The long-term protection and conservation of the archaeological record for the benefit of diverse stakeholders.

It has been said that in archaeology, ‘it is not what you find – it’s what you find out.’ Archaeologists are less concerned with material objects of the past than they are with the contextual information about those objects, which provides most of the clues needed to reconstruct past events. Without context (the three-dimensional loca­ tion of an object in relation to its surroundings and other artifacts), interpreting archaeological artifacts is like read­ ing a single page ripped out of a historical text with no way of knowing the precise date of the words. Artifacts, context, archaeological sites, and even archaeologists’ fieldnotes are all part of the archaeological record. The practice of archaeology goes well beyond disco­ vering and writing about artifacts. Archaeologists are confronted by situations that require delicate, compli­ cated, and influential decisions, whether in the field collaborating with others, in the lab or office deciding how to treat data, in publications, in the classroom, or in interactions with colleagues, Indigenous populations, or other stakeholders. Archaeological ethics are specific to the roles, responsibilities, and obligations of those who do archaeology. As these roles and responsibilities have changed over time, so have the ethics that give them meaning. For instance, the context of the majority of archaeological practice has changed from an academic pursuit to today’s mandated cultural resource manage­ ment (CRM) work. The applied field of CRM, which is responsible for identifying and mitigating damage to archaeological resources by construction projects, plays important roles in projects such as civic revitalization.

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CRM archaeology has its own built-in conflicts of interest and ethical contradictions concerning responsibilities to scholarship, the archaeological record and its creators, and seemingly inevitable forces of development. It is no wonder that heightened attention to ethics in archaeology comes at a time when archaeologists have begun to recog­ nize the implications of their practice for living peoples and to wrestle with the many new roles that archaeology is asked to play in a global and multicultural world.

A History of Archaeological Ethics To understand the nature of applied ethics in archaeo­ logy, we must try to understand the shifts in worldviews, orienting goals, and modes of practice in the discipline’s past that contribute to professional ethics today. Although we can trace broad historical trends, it is important to recognize that archaeological ethics are not universally held, and there are many different – and sometimes opposing – notions of what constitutes good behavior. Although many of the same ethics and values inform archaeology today as a century ago, their meanings have shifted as perspectives on ‘science,’ ‘preservation,’ or ‘accountability’ have changed. Ruins and Relics By the seventeenth century, an ethos of antiquarianism had become fashionable among European intellectuals, inciting explorations of ‘antique lands’ by scholar– adventurers – the first archaeologists. Collecting of curi­ osities from distant and exotic peoples, times, and places was one expression of this zeal. By the early 1800s, an ethos of science and discovery pervaded Europe, accom­ panied by the quest to map and claim the last ‘unknown’ regions of the planet. The ‘discovery’ of ancient sites in Central America, the Near East, and China was a source of great curiosity and excitement. Newly established national museums everywhere sought specimens to fill ‘missing links’ in the study of human progress, substan­ tiating a worldview that also provided a justification for colonialism. In the first decades of the nineteenth century, scholar– adventurer expeditions gave way to more systematic excavations seeking to trace the origins of Western civi­ lization to earlier ‘high’ cultures or to investigate ‘lost’ civilizations and the reasons for their collapse. The exca­ vation methods used by archaeologists at this time were hardly distinguishable from those of people we would call looters today (one notable exception being the work of Flinders Petrie). Multiyear excavations in the Near East, Egypt, and Central and South America sponsored by museums and universities hired scores of local workers to recover tons of objects, which were then shipped to

European and American museums or expositions. This appropriation of ancient materials for display in world centers was justified by appeals to salvage, preservation, and art appreciation – values that continue to inform museum practices, private collecting, and attitudes toward the global antiquities market today. In the late nineteenth century, as more ‘scientific’ methods of excavation and documentation developed, people realized the knowledge that could be gained from systematic in situ documentation and analysis. As archaeology and anthropology became embedded in uni­ versities and museums, researchers increasingly felt obligated to report their work to other scholars. This developing ethos of scholarship held that researchers should be able to pursue their scientific goals without constraints on their methodologies, interpretations, or academic freedom. In the United States, passage of the Antiquities Act in 1906 brought the federal government into the arena of archaeological ethics. The Act required permits for the removal of archaeological materials from sites of national significance or excavating on federal lands, thus making a clear distinction between those authorized to do archae­ ology from those who were not. The Act also established the legal foundation for the federal government to protect and manage historically significant sites and instituted means for designating national monuments. Although many positive results flowed from the Antiquities Act, it was in many ways another means by which the state appropriated the lands and heritage of Native peoples. Science and Salvage The U.S. government’s commitment to salvage and pre­ servation continued through the 1930s when Works Progress Administration-funded archaeology programs provided relief for unemployed laborers through massive excavations that supplied most of the human remains in Smithsonian collections. When the Society for American Archaeology (SAA) was founded in 1934, its members were a mix of trained and untrained archaeologists whose common ethic was the need for careful documen­ tation. This was in part a reaction to the zealous excavation of sites such as Spiro Mounds by amateur and commercial diggers. One of the SAA’s first actions was to work with the American Council of Learned Societies to establish the Committee for the Recovery of Archeological Remains to lobby for the role of archaeo­ logy in future federal development projects. By the 1950s, some federal agencies required government-funded archaeological salvage and monitoring of impacts on sig­ nificant sites. With these changes came a call to define minimum standards for archaeological practice, and for­ mal training in methods and techniques became ethical imperatives in archaeology.

Archaeological Ethics

The burgeoning growth of archaeology as a profession and the need for standards in formal training were two stimuli that encouraged the first professional ethical state­ ment in archaeology. In 1960, the SAA issued ‘Four Statements on Archaeology,’ a mixture of principles to aspire to and directives for how an archaeologist ‘must’ behave. The statements focused on promoting an ethic of professional accountability toward one’s colleagues, espe­ cially in regard to sharing data, along with a requirement for specialized training. Disregard for proper methods was grounds for expulsion from the society, as was the delib­ erate destruction or concealment of archaeological data, long a quasi-acceptable practice in archaeology. Resource Management The scope and contexts of archaeology changed drama­ tically in the 1960s and 1970s. Responding to the loss of significant archaeological sites to flood control and land development, archaeologists lobbied for legislation that authorized archaeologists to manage and protect archae­ ological resources for the state in a climate in which historic preservation often conflicted with development. A successful project became one that kept archaeological sites intact, marking a shift in values from salvage and excavation to in situ preservation and protection that came to be known as ‘the conservation ethic.’ Passage of the National Historic Preservation Act of 1966 (NHPA), the National Environmental Policy Act of 1969, and the Archeological and Historic Preservation Act of 1974 (also known as the Moss–Bennett Act) required federal agencies to fund archaeological impact and mitigation studies, creating the field of CRM. Thousands of jobs in public agencies and private firms opened to archaeologists, who now had to deal with legal contracts, clients with divergent interests, and dilemmas in methods and the handling of data. With these new responsibilities came renewed interest in applied ethics in archaeology. The Society of Professional Archaeologists, founded in 1976 as a voluntary profes­ sional registry, drew up a code delineating minimal standards of conduct for an archaeologist and a grievance process, embracing accountability to the public and new obligations characteristic of contractor–client relations. By the mid-1980s, more than half of all professional archaeologists worked outside of academia in CRM. High Stakes Meanwhile, as archaeological sites in the United States were being protected from development, the market for antiquities had expanded to an illicit trade with global net­ works of looters, dealers, and private collectors that fueled undocumented digging of sites throughout the world. Taking a strong anti-commercialization stance,

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archaeologists turned to legal instruments, education, and ethical codes in efforts to stem the antiquities trade. In 1970, the United Nations Educational, Scientific and Cultural Organization (UNESCO) passed the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which the United States finally signed into law in 1983 with the Cultural Property Implementation Act. The Act allowed the United States to develop bilateral agreements with ‘archaeologically rich’ countries to regulate the import of cultural objects. As archaeologists began studying the illicit antiquities market, they became increasingly cognizant of their role in generating the appreciation that sells antiquities while also wrestling with the fact that war, social instability, and economic inequalities underpin looting and site destruc­ tion. Calling attention to the growing illicit antiquities trade also has changed museum acquisition practices. During approximately the past decade, many museums have become more cautious about acquiring antiquities without proof of legal provenance. Today, the American Association of Museum’s code of ethics forbids the acqui­ sition of antiquities imported after passage of the 1970 UNESCO Convention, and U.S. federal courts have upheld convictions recognizing the cultural property laws of other nations. Italy, Egypt, Greece, and China are among the growing number of nations actively seek­ ing the return of ancient treasures that have left their borders illegally. The growing destruction of archaeological sites also led archaeologists to focus on public education as an ethical imperative. Public education was perceived as the solution to many of the dilemmas facing archaeology, from looting to site protection and support for historic preservation. Archaeologists had to acknowledge that they were but one group among multiple ‘publics’ that had a stake in deciding how cultural resources should be managed. Consultation and outreach became mandatory aspects of professional heritage management, and the field of public archaeology blossomed. Respect and Reckoning The beginnings of public archaeology, marked by archae­ ologists consulting with various ‘publics’ and studying the social contexts of archaeological research, coincided with a theoretical shift in archaeology called post-processual­ ism that has raised questions about the primacy and subjectivity of Western science and encouraged other readings of the past. The development of alternative archaeologies – incorporating methodologies and approaches from feminist, Marxist, and indigenous orien­ tations – has fostered healthy critical reflection on archaeological practices and their social and political repercussions. Not everyone has welcomed these changes,

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which perhaps indicates just how significant a shift they represent. New applied concerns for archaeologists led to the development of codes of ethics (e.g., the SAA’s 1991 ‘Principles of Archaeological Ethics’) and new archaeolo­ gical organizations. The World Archaeological Congress (WAC) formed in 1987 as a broad-based global organiza­ tion, not limited to professional archaeologists but also representing those affected by archaeology. WAC pro­ moted an ethic of social justice and the responsibility of the discipline to address global inequities in access to funding, technology, and information. In 1990, WAC adopted its ‘First Code of Ethics,’ which spelled out obligations to indigenous peoples that come with the privilege of doing archaeological research. The Australian Archaeological Association adopted a code of ethics in 1992 modeled directly on the WAC code while also reflecting Aboriginal rights to lands and cultural heritage. Debates about indigenous people’s rights to cultural heritage in the United States unfolded in the 1980s, and dozens of U.S. states passed laws protecting unmarked burials. Passage of the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990 marked an ethical sea change for archaeology in the United States. For the first time, the interests of Native peoples were legally declared to outweigh those of archaeologists or museums with regard to human remains, grave goods, and objects of cultural patrimony. This law states many things, but it mainly provides for the repa­ triation of funerary remains and other important objects to federally recognized tribes from institutions that have received federal funding. It also guides the disposition of funerary remains discovered on federal lands after 1990. Amendments to the NHPA in 1992 furthered the spirit of this new law, compelling greater participation by tribes in decisions affecting traditional cultural properties. Whereas some archaeologists have decried NAGPRA as a breach of archaeological ethics, others believe that aca­ demic freedom should not automatically trump the concerns of indigenous peoples. Many at first wary of NAGPRA changed their perspective after witnessing the positive outcomes resulting from the spirit of colla­ boration that has pervaded repatriation negotiations. Appreciation of the diverse values at stake in heritage management decisions has continued to grow, as has recognition of the role archaeologists often play in a system of governmentality. Moral and legal claims regarding heritage management and repatriation made by indigenous peoples in Canada, Australia, New Zealand, and elsewhere have in general led to more equitable relationships among descendant communities, archaeologists, and museums. Collaboration in archaeological practice and the repa­ triation of indigenous cultural materials as a result of

NAGPRA represent two major transformations in archae­ ology during the past 200 years. Archaeologists have changed their practice dramatically, from exploring (and plundering) lost cities to saving sites from excavation for future generations. Today, there are still many ethics issues that challenge archaeologists in their daily practice. There are also many tools with which archaeologists can approach ethical dilemmas.

How Do Archaeologists Approach Ethics? Practicing archaeologists are confronted with ethical dilemmas in nearly every aspect of their work. For many years, archaeologists were left to judge ‘ethical behavior’ on their own, with no guidance from laws or professional organizations. Today, archaeologists approach ethics from a variety of perspectives, including professional codes of ethics, laws, and discussions with colleagues. When archaeology emerged as a professional pursuit in the early 1900s, it was a field made up of a handful of mostly men with relatively similar backgrounds and simi­ lar ideas of what archaeology could and should be. By the early 1960s, as archaeology became more popular and more universities launched anthropology departments, the field gradually began to change from a small group of like-minded individuals to a large and diverse commu­ nity. A code of ethics was deemed necessary to help articulate the shared norms and values of the profession. One of the first clear statements on ethics was adopted by SAA in 1961. The ‘Four Statements for Archaeology’ defined an ethical archaeologist as one who endeavors to do good fieldwork, preserves records, refrains from buy­ ing and selling artifacts, obtains permission as needed for research, and honestly reports and retains archaeological data. Codes of archaeological ethics differ significantly from one organization to the next depending on the primary interests and objectives of the group and the social and political contexts in which they are written. Archaeological codes tend to be classified into three categories. The first includes standards and codes of conduct formulated by professional organizations such as the Register of Professional Archaeologists in the United States (previously the Society of Professional Archaeologists), the Institute of Field Archaeology of the United Kingdom, and Australia’s Association of Consulting Archaeologists. These organizations all have grievance procedures as mechanisms of enforcing their professional codes. The second category is com­ posed of codes or statements adopted by national and international societies that lay out the special responsi­ bilities of archaeologists in working with indigenous peoples. The Archaeological Associations of Canada, Australia, and New Zealand all have statements to this

Archaeological Ethics

effect, as does the WAC. The third category of ethics documents comprises general statements of goals, prin­ ciples, and responsibilities, such as the SAA’s ‘Principles of Archaeological Ethics’ and the ‘Ethical Principles of the Society for Historical Archaeology.’ Some organizations have codes in more than one of the previously discussed categories. The Canadian Archaeological Association has a set of general ethical goals in addition to its ‘Statement of Principles for Ethical Conduct Pertaining to Aboriginal Peoples.’ The Archaeological Institute of America, with its mixed membership of professional archaeologists and interested individuals, has both a code of ethics, strongly focused on the global antiquities trade, and a code of professional standards that applies only to its professional members, backed up by a detailed grie­ vance procedure. Many subdisciplines and specialized positions within archaeology now have their own associations and ethics codes as well, from museums and conservationists to underwater archaeologists and rock art researchers. The quasi-legal role of international charters and associations such as the International Council of Archaeological Heritage Management, the International Council on Monuments and Sites (ICOMOS), and the Burra Charter (adopted in 1999 by Australia ICOMOS to create a standard of practice for those working in places of cultural significance) is less clear and seems to depend on how or whether other nations or institutions or orga­ nizations recognize them. In the United States, archaeology is traditionally one of four fields of anthropology, which means that the American Anthropological Association’s (AAA) code of ethics also applies to archaeologists who are AAA mem­ bers. The AAA framed its ‘Principles of Social Responsibility’ in 1971, declaring that a researcher’s pri­ mary responsibility is to the people being studied. In 1998, these principles were incorporated into a code of ethics that expanded on this primary responsibility, clearly stat­ ing that obligations to those studied could in some situations supersede other research goals or responsibil­ ities. Another question that has recently entered discussions on archaeological ethics is whether archaeol­ ogists should consider themselves exempt from human subjects review because their work obviously affects liv­ ing peoples. These are just a few of the many questions archaeologists must consider when using codes, princi­ ples, and charters in seeking solutions to ethical dilemmas. In addition to formal codes and principles, the law has also shaped how archaeologists think about their ethical responsibilities. The relationship between law and ethics is often complex and rarely straightforward. However, with cultural property laws (laws that deal with the pro­ tection of the archaeological record), the ideals of archaeological practice often work in concert with legal

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obligations. For example, the SAA principle of steward­ ship is in line with most of the state and federal laws regarding cultural heritage in the United States, which outline protection for the archaeological record. Despite some tensions between laws, codes of ethics, and moral obligations, there are many cultural property laws dealing with the protection of archaeological resources and the applied nature of archaeology. Several major laws affecting the practice of archaeology were previously discussed, including the 1906 Antiquities Act, the National Historic Preservation Act of 1966, and the Native American Graves Protection and Repatriation Act of 1990. NAGPRA has been instrumental in reshaping dialogues about archaeology and its relationship with Native peoples. International laws can also inform local dilemmas. One of the primary international laws relating to cultural property is the 1970 UNESCO Convention, which cre­ ated a framework for international cooperation to reduce the illicit movement of cultural materials. The Convention aims to resolve a problem of national law: That is, typically nations are not legally bound to uphold the laws of other nations. Thus, for example, although it may be illegal in Peru to loot archaeological sites, if those looted objects come to the United States, the United States – even if it is known that the objects were looted – is not legally compelled to prosecute those holding the stolen objects. (However, the United States can choose to prosecute those who import ‘stolen’ property into the country.) The 1970 UNESCO Convention helps fix this problem by creating a framework that allows nations to uphold the cultural property laws of other nations. A second major international law is the 1954 Hague Convention, which attempts to curb the destruction of cultural property during war. There are many more international laws and treaties that can be examined to understand how archaeology and heritage often operate beyond national borders. Laws are important to consider in our deliberations on ethics, but discussions of laws should not replace our discussions of ethics. In many ways, laws are akin to codes and principles in that they should guide our approaches to ethics, not necessarily restrict them. Although codes of ethics and laws help archaeologists deal with ethical dilemmas, collaborations with the public and professional colleagues are critical to helping archae­ ologists apply ethics to their daily practice. Discussions of ethics in archaeology often take place in informal settings, such as through e-mails between colleagues and quiet discussions during conferences sponsored by professional organizations. For example, many major archaeological organizations now have committees that focus on archae­ ological ethics, whose missions are to promote discussions about ethical issues and principles among organization members. In addition, in recent years, archaeologists

184 Archaeological Ethics

have emphasized the need for more explicit ethics education. Since 2004, SAA has sponsored its annual Ethics Bowl, a distinctive mode of ethics education that compels stu­ dents to engage directly with the complexities of working through moral dilemmas. The event consists of teams presenting arguments about how they would resolve ethi­ cal dilemmas raised in hypothetical case studies. Although centered on hypothetical dilemmas, the Ethics Bowl is anything but abstract; participants must investigate how professional codes of ethics, legal mandates, historical examples and considerations, and different moral philo­ sophies all inform problem solving in a range of situations. A panel of judges scores each team based on criteria of intelligibility, depth, focus, and judgment. The SAA Ethics Bowl and similar programs work to ensure that students entering the profession view ethics as a vital part of their discipline and have the tools needed to address dilemmas they will inevitably face. Professional archae­ ologists also benefit from the debates as they are forced to consider their own perspectives on archaeological ethics and judge the decisions of their future colleagues. Cases from the 2009 SAA Ethics Bowl provide examples of the ethical dilemmas facing archaeologists today (Text 1).

Themes in Archaeological Ethics As the previous discussion demonstrates, the complex history of the discipline of archaeology as well as codes, laws, and professional dialogue all affect how archaeology is practiced today. In the 1960s, it was enough for an archaeologist to do good fieldwork, preserve artifacts, refrain from buying and selling artifacts, honestly report findings, and obtain permissions needed for research. These are still aspects of ethical practice in archaeology today, but they are understood in more complex ways. Archaeologists have become more involved with laws, policies, and government agencies as well as more aware of the implications of their research for others. Due to the political, economic, and cultural contexts of today, archaeological ethics have taken on new meanings, chal­ lenging archaeologists to confront myriad ethical dilemmas in their work. Do Good Fieldwork An archaeologist’s ability to ‘do good fieldwork’ used to refer to the archaeologist’s duty to be an objective scien­ tist who carefully recorded contextual information and reported findings. Today, what counts as ‘good fieldwork’ is complicated by a multiplicity of issues. Archaeologists are still concerned with crafting sophisticated questions about the past and answering these questions through the

excavation of data, but, for some, excavating sites and writing narratives about the past are not enough. Today, good fieldwork involves a broad range of tech­ niques and methodologies, many of which are connected to archaeological ethics. For example, by applying new scientific techniques such as ground-penetrating radar, magnetometry, and electrical resistivity to archaeological investigations, archaeologists are now able to protect sites from destructive excavation while still collecting data about the past. Even the excavation process has been complicated. For instance, choices about where or how deep to excavate are often guided by the research inter­ ests of archaeologists, which change over time. However, do these changing interests potentially result in archae­ ologists ignoring other sources of data? For instance, is it ethical for an archaeologist to destroy (through excava­ tion) the records of modern populations just below the surface in order to study an older, lower level of cultural material? Changes to ‘good fieldwork’ also include an emphasis on collaborative and multidisciplinary research with var­ ious stakeholders as well as a variety of scientific experts. Some archaeologists believe that archaeological metho­ dology and theory can and should serve greater goals, such as those related to social justice and contemporary problems. For example, archaeologists are studying ancient farming techniques in the hope of developing more sustainable agriculture programs. Also, in a world increasingly concerned with climate change and environ­ mental conservation, archaeology has a great deal to offer regarding the impacts of human populations on the earth’s environment. Finally, good fieldwork is also related to the training of archaeological students. In the past, as with many aca­ demic disciplines, it was expected that young archaeologists would simply learn by doing, through archaeological field schools and in college classrooms, but the important topics in archaeology education have changed. To ensure the growth and development of archaeology, a renewed focus on the training of future scholars has developed, influencing the future practice of archaeology. In classrooms and field schools, student training now addresses issues in public education, com­ munity involvement, and heritage tourism. The Making Archaeology Teaching Relevant in the 21st Century pro­ ject is an example of a successful initiative designed to create curricula for archaeology classes that address cur­ rent concerns and ethical issues in archaeology and prepare students for a variety of careers in archaeology. As with any science or profession, within the field of archaeology the definition of ‘good’ research is constantly changing and expanding. Today’s research incorporates a broader range of methodologies, practices, and collaboration.

Archaeological Ethics

Preserve Artifacts and Refrain from Buying and Selling Artifacts Archaeologists have long considered themselves stewards of the archaeological record. Because archaeological work depends on the availability of sites and artifacts, scientists have fought for the protection of the archaeological record from natural forces such as erosion and humancaused destruction such as war, development, and tour­ ism. Stewardship of the archaeological record (which includes sites, artifacts, fieldnotes, and maps) is a concern for all archaeologists. In recent years, debates have arisen over the definition and interpretation of the word ‘stewardship’ and the rights of archaeologists to claim the mantle of stewardship in a post-colonial world. In 1996, the SAA board of directors promulgated the orga­ nization’s ‘Principles of Archaeological Ethics.’ Although they are admittedly intertwined, the SAA principles appear in rank order, with an ethic of stewardship as the primary tenet of professional archaeological practice. Development and tourism paradoxically can both bol­ ster and threaten archaeological sites and scientific research. In the United States, archaeologists are often called to survey areas of new construction for significant archaeological sites (a result of the NHPA, as discussed previously). The goal is to mitigate the loss of ‘significant’ archaeological resources when necessary development occurs, but the goals of development are often in conflict with the principles of archaeological stewardship and preservation. Archaeological sites and monuments are also major tourist attractions in the world today, drawing millions of visitors annually. The increasing numbers of tourists visiting archaeological sites such as the cliff dwellings of Mesa Verde are important to archaeology for a variety of reasons. For example, tourism sites are a context for public education about archaeology and the past, an ethi­ cal goal of archaeologists. In addition, beyond education, tourism sites are contexts for interaction, consultation, and collaboration between the public and archaeologists. The public can engage with the practice of archaeology, and archaeologists can learn information about the past from local populations. However, with increasing num­ bers of visitors there is also increased wear and tear on these sensitive sites, many of which are underprotected and underfunded. Keeping people away from sites is not always the best solution, however, because archaeological sites and museums are often important sources of income for nearby communities. Today, many archaeologists are working with communities toward a goal of initiating sustainable archaeological tourism, which minimizes the impact of tourists on archaeological sites and maximizes recreational and educational opportunities. The concepts of sustainable tourism and collabora­ tive stewardship demonstrate how limiting early

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archaeo-centric definitions of stewardship were. In attempting to protect the archaeological record, archae­ ologists necessarily become involved with stakeholders who may not share the views of archaeologists. The SAA’s second principle is accountability. This principle states that archaeologists are accountable to diverse publics, including the general public, other scien­ tists, and indigenous populations. It is not difficult to imagine how the two principles of stewardship and accountability might sometimes clash. Sometimes, especially in developing nations and com­ munities, the interests of a local community outweigh the desire of archaeologists to preserve sites. Thus, as men­ tioned previously, archaeologists try to work with local populations to create sustainable preservation initiatives. Other times, an archaeological approach to stewardship may be antithetical to the beliefs of an indigenous com­ munity. For instance, some Native American groups believe their sacred objects should be allowed to deterio­ rate naturally out in the elements and, thus, they should not be ‘preserved’ according to the archaeological defini­ tion of the word. The SAA’s third principle is commercialization, which encourages archaeologists to ‘preserve artifacts’ by not being involved in the buying and selling of artifacts. Commercializing the archaeological record encourages further exploitation of archaeological sites, such as loot­ ing, because the creation of a market for antiquities drives people to destroy archaeological sites for profit. Looting destroys contextual information and, thus, erases stories of the past. Looting is still rampant throughout the world. Some of the most dramatic recent examples are the loot­ ing of archaeological sites and museums in Iraq and Afghanistan. The commercialization of the archaeological record is complicated by other ethical issues. Some people mine sites for artifacts to sell so that they can feed their families, especially in times of instability or war. Some artifact collectors are passionate historians who do not sell their collections and are often excellent sources of information about new sites and objects. Hence, archaeologists must engage in research to better understand the contexts of nonarchaeological collecting, and they must engage in education to teach people about the importance of pre­ serving the past. Archaeologists today must collaborate with various stakeholders and acknowledge that scientific views and goals regarding cultural objects and the past do not auto­ matically take priority over alternative perspectives. In applied archaeological ethics, the question must be asked, Who are the real beneficiaries of archaeology? It is hoped that debates over the issues described previously will encourage advocacy for collaborative models of stewardship.

186 Archaeological Ethics

Honestly Report Findings Although honestly reporting findings might seem like a simple ethical imperative, this goal, in fact, challenges archaeologists in many aspects of their daily practice. For years, archaeologists believed that they alone were in charge of the narratives of the past. Thinking that they were only writing the unbiased ‘truth’ about their discov­ eries, archaeologists were not sensitive to how the public might interpret archaeological narratives in ways that shed negative light on ancient populations or might manipulate narratives to serve political, social, or economic agendas. Today, archaeologists are increasingly aware of the social contexts of their work and their inter­ pretations. They attempt to be more sensitive in their re­ creations of past cultures and try not to essentialize ancient or modern cultures. Scientific reports about the past have always been important to archaeologists, but for years they remained in the ‘gray literature,’ full of jargon and out of the public eye. In the 1980s, archaeologists began to question whether archaeological interpretations of the past were even reaching public audiences and to push for public education as a key tenet of archaeological ethics. Many archaeologists started thinking seriously about how to educate the general public about the past by asking ques­ tions such as the following: What are the important concepts that children and adults should learn about the past? and What should we be teaching children and adults about the practice of archaeology? A renewed focus on education has allowed archaeologists to ‘honestly report findings’ to new audiences, improving both the knowl­ edge people have about past societies and the understanding people have about archaeology. Archaeological narratives are not the only stories about the past that affect archaeological practice and ethics. Hollywood directors, fiction writers, website edi­ tors, newspaper reporters, and other members of the media all impact how the general public views the past. For instance, the movie Apocalypto was highly criticized by archaeologists for its depiction of the ancient Maya as violent savages who sacrifice victims. At the heart of the debate of portrayals such as Apocalypto is the ethical dilemma of accurately and sensitively portraying indivi­ duals and groups in the past. Some archaeologists now consider it an ethical imperative to teach against such inaccurate or defamatory representations. In addition to representations of the past, archaeolo­ gists must also be aware of how archaeology is represented as a discipline. Indiana Jones, Lara Croft, and other Hollywood adventurers have strongly affected how the general public views the practice of archaeology. It should not be a surprise that archaeologists do not actually carry guns and whips but instead carry compu­ ters, shovels, and notebooks. Also, archaeology is not a

mysterious science, as it appears on cable television, but a social science that utilizes the scientific method to write testable hypotheses in response to questions about the human past. Obtain Permissions Needed for Research When the SAA first recommended that archaeologists obtain permissions for research, they were referring to private landowners who needed to be contacted in order not to violate trespassing laws when surveying for archae­ ological sites. Today, the concept of ‘permissions’ needed for research is highly complicated by the relationships archaeologists have with indigenous communities, other local publics, the media, governments, and other stake­ holders who are affected by and who affect archaeological research. Two of the primary questions of archaeology are cen­ trally related to the question of permissions: Who owns the past? and Who should control the past? These ques­ tions have been debated for centuries. The British Museum and the country of Greece have argued over the control of the Elgin Marbles almost since the day Lord Elgin removed the antiquities from the Parthenon in the early nineteenth century. There have been legal and ethical arguments stating that the past belongs to all of humanity, to nation-states, to indigenous groups, to museums, and to individuals. The once simple goal of archaeologists to work with archaeological resources in order to pursue scientific inquiry has become entangled with international debates related to heritage, identity, ethnicity, power, and justice. These entanglements become increasingly complex as the practice of archae­ ology changes and new technologies emerge. For example, the advent of ancient DNA studies has not only affected archaeologists’ abilities to affiliate modern groups with ancient groups through the testing of human DNA (an inherently political action) but also has led to ethical discussions regarding intellectual properties and traditional knowledge through the testing of ancient ani­ mal and plant DNA. Will ancient DNA eventually determine who owns certain aspects of the past, such as sacred objects or specialized varieties of corn? New forms of data and new methodologies in archaeology will for­ ever influence future debates over the ownership and control of the past. In many cases, conflicts concerning the ownership or control of cultural properties can be resolved by examin­ ing the historical information, legality, and ethics in each individual case. These questions have also forced archae­ ologists to question the ethical issues that arise from performing research in other countries or cultural con­ texts. In the United States, no legal instrument has had more impact on issues related to the ownership and con­ trol of cultural properties than NAGPRA.

Archaeological Ethics

Since the passing of NAGPRA in 1990, archaeologists and museums have been federally mandated to consult with federally recognized Native American groups regarding the ownership and possession of funerary remains and other important objects. In some cases, NAGPRA negotiations have resulted in the repatriation of collections of human remains from archaeology and anthropology curation facilities to Native American groups. Some archaeologists view NAGPRA as an impetus for a new era of ethical archaeology, built around collaboration. Others worry that collections important to answering questions about the past will be removed from the control of archaeologists (and, thus, become unavail­ able to scientific study). Perhaps the greatest outcome of the debates over the control and ownership of the past are the emerging subfields in archaeology called collaborative and indi­ genous archaeologies. These encompass projects that bring local or descendant communities and archaeolo­ gists together to create collaborative research designs, with questions and objectives that address different agendas and have different, not always shared, outcomes. The research process is likely to include community review and new forms of access and ownership of the processes and products of research. This change in pro­ fessional practice helps archaeologists build new relationships with stakeholders based on shared commit­ ments to reciprocity and dialogue that will not only change the face of archaeology but also transform the entire research process. Expanding on the narratives of science, collaborative archaeologies have the potential to offer other interpretations and alternative perspec­ tives, both as part of an ethic of engagement and as a way to counterbalance essentialist views of the past.

Conclusion The previous discussion highlights changes in archaeolo­ gical ethics from the 1960s to today. It should be apparent that the concepts of preserving artifacts, doing good field­ work, and obtaining permissions needed for research are intertwined in the practice of ethical archaeology. The previous themes by no means comprise an exhaustive list of issues in archaeological ethics. Archaeologists also now consider how intellectual property, gender, student training, environmental conservation, capitalism, globali­ zation, and more, affect the practice of archaeology. Today, archaeology seems to be at the edge of a new era of accountability, one in which archaeologists are presented with the challenge of coming to terms with the effects their work could have in the world. This commitment to accountability is an engagement not only with the past but also with the present. It is an engagement that requires sensitivity to the particular

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contexts and contours of each and every situation at the same time that it recognizes archaeology’s unavoidable entanglements with broad political and economic move­ ments. Archaeologists and heritage managers are increasingly answerable to institutions and individuals at local, national, and global levels simultaneously. Archaeology’s current ethics are hardly adequate to guide archaeologists as they work in these multiple socio­ political landscapes and transnational contexts and determine how professional commitments to ‘engage­ ment,’ ‘accountability,’ and ‘social responsibility’ work out in everyday practice. This commitment to accountability reformulates and refocuses the obligations archaeologists have toward liv­ ing peoples – a radical shift from the ethic of antiquarianism of 200 years ago. This includes working for social justice, with the recognition that preservation of the past carries responsibilities to work with living peo­ ples to sustain a viable future – with all of the personal and professional obligations this entails. See also: Codes of Ethics; Environmental Ethics, Overview; Indigenous Rights; Intellectual Property Rights; Native American Cultures; Science and Engineering Ethics, Overview; Stewardship.

Further Reading Atalay S (2006) Decolonizing archaeology – Efforts to transform a discipline. American Indian Quarterly 30 [special issue]. Brodie NM, Kersel M, Luke C, and Tubb KW (eds.) (2006) Archaeology, Cultural Heritage, and the Antiquities Trade. Gainesville: University Press of Florida. Colwell-Chanthaphonh C and Ferguson TJ (eds.) (2007). Collaboration in Archaeological Practice: Engaging Descendant Communities. Lanham, MD: AltaMira Press. Colwell-Chanthaphonh C, Hollowell J, and McGill D (2008) Ethics in Action: Case Studies in Archaeological Dilemmas. Washington, DC: Society for American Archaeology Press. Dongoske KE, Aldenderfer M, and Doehner K (eds.) (2000) Working Together: Native Americans and Archaeologists. Washington, DC: Society for American Archaeology Press. Fluehr-Lobban C (ed.) (2003) Ethics and the Profession of Anthropology: Dialogue for Ethically Conscious Practice. Walnut Creek, CA: AltaMira Press. Little BJ (ed.) (2002) Public Benefits of Archaeology. Gainesville: University Press of Florida. Lynott MJ and Wylie A (eds.) (2000) Ethics in American Archaeology: Challenges for the 1990’s, 3rd edn. Washington, DC: Society for American Archaeology Press. Meskell L and Pels P (eds.) (2005) Embedding Ethics: Shifting Boundaries of the Anthropological Profession. Oxford: Berg. Mihesuah DA (ed.) (2000) Repatriation Reader: Who Owns American Indian Remains? Lincoln: University of Nebraska Press. Scarre C and Scarre GF (eds.) (2006) The Ethics of Archaeology: Philosophical Perspectives on Archaeological Practice. Cambridge, UK: Cambridge University Press. Silliman S (ed.) (2008) Collaborating at the Trowel’s Edge: Teaching and Learning in Indigenous Archaeology. Tucson: University of Arizona Press. Thomas DH (2000) Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity. New York: Basic Books.

188 Archaeological Ethics Vitelli KD and Colwell-Chanthaphonh C (eds.) (2006) Archaeological Ethics, 2nd edn. Lanham, MD: AltaMira Press. Zimmerman LJ, Vitelli KD, and Hollowell-Zimmer J (eds.) (2003) Ethical Issues in Archaeology. Walnut Creek, CA: AltaMira Press.

Relevant Websites http://www.aaanet.org/profdev/ethics – American Anthropological Association, ‘Professional Ethics.’ http://www.archaeological.org/pdfs/AIA_Code_of_EthicsA5S. pdf – Archaelogical Institute of America, ‘AIA Code of Ethics.’ http://www.e-a-a.org/codeprac.htm – European Association of Archaeologists, ‘The EAA Code of Practice.’ http://www.indiana.edu/�capi – Indiana University, Center for Archaeology in the Public Interest. http://www.archaeologists.net/modules/icontent/inPages/ docs/codes/code_conduct.pdf – Institute for Archaeologists, ‘By-laws: Code of Conduct.’ http://icom.museum/ethics.html – International Council of Museums, ‘ICOM Code of Ethics for Museums, 2006.’ http://www.savingantiquities.org – Saving Antiquities for Everyone. http://www.saa.org – Society for American Archaeology. http://www.saa.org/AbouttheSociety/ PrinciplesofArchaeologicalEthics/tabid/203/Default.aspx – Society for American Archaeology, ‘Principles of Archaeological Ethics.’ http://www.sfaa.net/sfaaethic.html – Society for Applied Anthropology, ‘Ethical & Professional Responsibilities.’ http://www.mcdonald.cam.ac.uk/projects/iarc/home.htm – The Illicit Antiquities Research Centre. http://www.worldarchaeologicalcongress.org/about-wac/ codes-of-ethics – World Archaeological Congress, ‘Codes of Ethics.’

Biographical Sketches Dru McGill is a Ph.D. candidate in the Indiana University (Bloomington) Anthropology Department, where he studies under the ‘Archaeology and Social Context’ Ph.D. track. He is also Research Associate at the Glenn A. Black Laboratory of Archaeology at Indiana University. His research focuses on late-prehistoric peoples of the American Midwest, specifically the Mississippian and Caborn– Welborn cultures in southern Indiana. He is a member of the Society for American Archaeology Committee on Ethics and the World Archaeological Congress Executive Committee. He is also co-organizer of the SAA Ethics Bowl.

Chip Colwell-Chanthaphonh is Curator of Anthropology at the Denver Museum of Nature & Science. He is the author and editor of six books on archaeology, research ethics, and Native American ethnology and history. He received the 2009 National Council on Public History Book Award and the 2009 Gordon R. Willey Prize of the American Anthropological Association, Archaeology Division.

Julie Hollowell recently served as the Nancy Schaenen Visiting Scholar at DePauw University’s Janet Prindle Institute for Ethics. She was previously the recipient of a 2-year Killam Fellowship at the University of British Columbia’s (Vancouver) Department of Anthropology. She is co-chair of the Committee on Ethics of the World Archaeological Congress and a Research Associate at the Center for Archaeology in the Public Interest at Indiana University. She has co-edited and authored several publications related to archaeological ethics, ethnography, and the antiquities markets.

Aristotelian Ethics C Megone, University of Leeds, Leeds, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Acrasia Weakness of will. Eudaimonia The ultimate good, happiness. Habituation Guided practice that plays a role in the development of character. Phronesis Practical wisdom, an intellectual virtue of central importance for ethical virtue.

Introduction Aristotle certainly wrote two works on ethics, the Nicomachean Ethics (NE) and the Eudemian Ethics. He may also have written the Magna Moralia. Although it is a matter of dispute, the NE is widely believed to be the most definitive account of his views and this article will draw primarily on that text. However, Aristotle was a systematic thinker. He recognized that in addressing central questions in ethics he also needed to attend to issues in the philosophy of mind and action, metaphy­ sics, and political philosophy. Hence a discussion of his ethics must also draw, from time to time, on works such as De Motu Animalium, Metaphysics (MP), Physics (Phys.), and Politics (Pol.). What follows has been divided into six main sections. These examine: 1. The broad outlines of an Aristotelian approach; 2. His views on method in ethics, views that obviously determine the nature of his discussion; 3. The answers he develops to the central questions he sets himself, answers focusing on the importance of what are sometimes termed internal goods: virtues of character and of the intellect; 4. His account of external goods such as wealth, friendship, and a good family, as well as another internal good, pleasure; 5. Some prominent features of the theory; and 6. The practical implications of Aristotelian ethical theory and specifically its influence on some contempor­ ary debates in applied ethics.

Aristotle’s Approach to Ethics Aristotle followed Plato and Socrates in the questions he identified as central to the study of ethics. Socrates’s key question is: ‘‘What kind of life should one live?’’ In the NE

Telos Goal or end. Theoria Contemplation, reflective understanding. Virtue (ethical) A state of character that is displayed in good actions.

Aristotle raises this question in terms of the notion of an ultimate good. He observes that if there is some ultimate good at which we all aim in actions it will be of no little importance to discover it (NE, 1094a 1–26). He then notes that all reach verbal agreement that the ultimate human good is a life of eudaimonia (NE, 1094a 14–20). Despite this verbal agreement, there is disagreement as to what eudai­ monia consists in. So Aristotle’s key question is, in effect: ‘‘What does eudaimonia consist in?’’ Two remarks about this approach are worth making at the outset. First, the question of what Aristotle means by eudaimonia is a matter of some dispute. What has already been said is simply that there is general agreement that it is the ultimate human good. Second, Aristotle initiates discussion of this issue with the claim that all human action aims at some good. This, too, needs examination, but this starting point already shows how for him an understanding of ethics is tied to a full understanding of the nature of human action. Aristotle also has in mind, like Socrates and Plato, a second question: ‘‘Does virtue pay?’’ He does not raise this question explicitly, but it is implicit in his investigation of the relation between the life of virtue and that of eudai­ monia. The question of whether virtue pays is much like the contemporary question: ‘‘Why be moral?’’, save that it is expressed here in terms of the language of virtue. In adopting that language, then, Aristotle is following Socrates and Plato in developing an approach to ethics that focuses on the virtues. He is a virtue theorist. But he is not merely following authorities. Talk of virtues such as justice and courage was central to the everyday language of praise and blame in his time, with vices and other defects of character equally relevant. That language still makes sense too. In day-to-day life, cries for justice are heard worldwide and those who are courageous, or just, or wise, are still commonly thought admirable. In addressing the question of whether virtue pays, the Greek thinkers

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recognized that reflection needs to explain to us why it is justifiable to admire the virtuous. If such common atti­ tudes are to be retained, reflection needs to show that they are not mistaken. A virtue theory such as Aristotle’s has access to a rich vocabulary for ethical reflection. Aristotle’s concern is not simply with right and wrong, but with courage and cow­ ardice, wisdom and foolishness, justice and injustice. His discussion is also one that can allow that weakness of character, or strength of character (NE, 1145a 15–20), should be accounted for by an adequate moral theory. In these sorts of ways, his approach has been held to be more sensitive than rival contemporary theories to the nuances of everyday moral debate. Aristotle’s ethics, then, has a broad framework pro­ vided by the two questions noted above. Within that framework other questions arise. First, in examining what eudaimonia consists in he takes account of prominent existing views. In Republic (540a–b), Plato had indicated that the life philosopher kings would really wish to pursue was one of intellectual inquiry or reflection. Predecessors had also debated the value of pleasure in a good life and the importance of other external goods such as wealth and friendship. Thus Aristotle is interested in the role of all these competitors in a eudaimon life. This arises directly from attending to his first question, but his answer to that leads him to discussion of the nature of both friendship and pleasure; and to focusing on the role of theoria (con­ templation, or reflective understanding, perhaps) within eudaimonia. Second, while Aristotle needs to spell out the nature of eudaimonia, clearly any account of its relation to virtue requires him to also provide a definition of virtue. Thus he faces the Socratic ‘‘What is it?’’ question both in rela­ tion to virtue as a whole and with regard to specific virtues. Similarly, he also needs to address the question of the relation between the virtues, whether they consti­ tute a unity, or are in some sense identical. Then, in developing a full account, he must focus on the role of seminal virtues such as justice and courage, as well as practical wisdom (phronesis), an intellectual virtue parti­ cularly important for ethical virtue. Third, the discussion of virtue leads to a discussion of motivation for action. In the early Platonic dialogues, what seems to be a Socratic account of virtue is devel­ oped, one in which all desires aim at the good and virtue is thus identified with knowledge (of the good), a position leading Socrates to reject the possibility of weakness of will (as reported by Aristotle (NE, 1145b 21–35)). In Republic (434e–444e), Plato develops a moral psychology that makes room for such a phenomenon, and thus will require a different account of virtue. Despite their differ­ ences, what both these predecessors make clear is that there is a tight connection between virtue and action, and in particular that an adequate account of virtue will

involve a properly developed moral psychology. Aristotle follows them, too, in taking it as a constraint on the adequacy of a theory that it should give a satisfactory psychological account of defective conditions such as weakness of will and vice. Thus Aristotle’s account focuses on the nature of (ethical) motivation and in parti­ cular the role of reason and desire in action, and so their part in a defensible definition of virtue. Finally, Aristotle notes at the outset of NE that ethics is a branch of political philosophy (NE, 1094a 24–8). Thus for him the investigation of eudaimonia raises the question of the relation between the achievement of the ultimate good and the kind of society a citizen inhabits. This was of course a key theme of Plato’s Republic. Aristotle takes the matter further through a discussion of human nature, and proper human development, taken up also in the early chapters of Politics (1252a 1–1253a 39). For Aristotle too, therefore, discussion of the virtuous individual inter­ twines with reflection on the just society. If these are the issues that Aristotle’s ethical theory embraces in addressing his two main questions, an outline of his approach may conclude by indicating the general nature of his response to those questions. Taking the two questions above in reverse order, Aristotle defends the view that virtue does indeed pay. He shows this by arguing that the active life of practical virtue, not a life of wealth or pleasure, for example, con­ stitutes eudaimonia. To defend more fully this claim that virtue is worth­ while, Aristotle develops his conceptions of both eudaimonia and virtue. His account of eudaimonia rests on an argument he introduces concerning human nature. This is because in his view the ultimate human good is produced when a human fulfills his nature, realizes (or actualizes) his dis­ tinctively human potential. (In an Aristotelian metaphysical picture, members of a biological kind such as humans consist of a set of powers or potentials which are realized or actualized over time. Thus we might say that a human infant has the potential to speak a language and if properly nurtured and educated the developing human will realize or actualize that potential, becoming a fluent speaker. In what follows I will use the terminology of ‘realizing’ potential.) The distinctively human potential (or essential potential) is the potential to live a life guided by reason. So the ultimate human good is achieved when an individual fully realizes his potential for rationality. Thus Aristotle’s answer to the first question is that eudai­ monia consists in a maximally rational life. Aristotle then produces and defends a conception of practical virtue such that a life of practical virtue will exhibit rationality maximally (at least in the practical sphere). Thus he argues that the virtues are states of character that enable the agent to reason (practically), and so act, fully rationally.

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Thus it is that the virtuous life produces eudaimonia. The virtuous life is the fully rational life and humans are such that the ultimate human good, eudaimonia, is realized in a fully rational life. Thus practical virtue and eudaimonia are linked, in Aristotle’s view, by the concept of rationality, and his conception of human nature as having a goal or telos, such that the flourishing human fully develops that rationality. As noted earlier, Aristotle is aware of the widely held views that pleasure, wealth, friendship, and good family are valuable, and he seeks to accommodate these views within his theory. Thus he argues that the fully virtuous life is indeed pleasurable, providing an argument that depends on an analysis of the nature of pleasure. He also indicates the relevance of wealth and family for virtue. Finally he analyzes friendship suggesting that its para­ digm form is friendship of the virtuous, and indicating that its significance is related to the importance of the state in the realization of an individual virtuous life. To begin with, though, Aristotle’s remarks on method in ethics need attention. They help to explain how he arrives at his position, as well as revealing what he takes to be the purpose of ethical theory. Both these points are relevant to the use of Aristotelian theory in applied ethics.

Aristotle’s Method in Ethics In NE I and VII, Aristotle makes various methodological remarks concerning the study of ethics. His views can be divided into three categories. First, he notes some con­ straints on the study of ethics, in particular on what sort of results can be expected in ethical inquiry. Second, he remarks on the sort of student that can benefit from engaging in ethical inquiry. These remarks are made in the light of both where ethical discussion must begin and what its purpose is. Finally he offers a suggestion on how to assess the conclusions of a discussion. All these ideas provide insights into the nature of the philosophical study of ethics (and thus of applied ethics), as well as aiding the understanding of Aristotle’s own preferred theory. Precision in Ethics Aristotle begins by remarking that different degrees of precision or clarity can be expected in different areas of study, so it will be sufficient in ethics to indicate the truth roughly and in outline. He illustrates his general idea here by noting that persuasive reasoning is evi­ dently not adequate in mathematics, while on the other hand one should not expect demonstrative proofs of a rhetorician. Why should imprecision be expected in ethics? He appeals to the imprecision in its subject mat­ ter. Fine and just acts exhibit much variety and fluctuation; and even good things fluctuate in the sense

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that they sometimes harm people: the courageous some­ times die as a result of their courage (NE, 1094b 10–27). It is not clear exactly how these remarks are to be taken. There has been some discussion as to what sort of knowledge Aristotle thinks possible in ethics, and whether he thinks it comparable with scientific knowledge. Questions have also arisen as to whether these remarks support some kind of relativist interpretation of his the­ ory. However, he continues to talk of indicating the truth in ethics, as if there were truths here as in other areas of inquiry, mathematics, for example, but their content was less precise. Perhaps his key point is that even though results in ethics do not take the same form as those of mathematics, there is no reason to think it any less possi­ ble to discover truths and attain knowledge. At a more practical level, the remarks suggest that it will be hard to spell out what justice, for example, requires, in terms of general rules such as ‘‘always return what you borrow’’ or ‘‘always keep promises.’’ They also suggest that it might be hard to produce any systematic method, such as the classical utilitarian calculus, in the light of which to determine what act is correct on any occasion. Such a calculus does not suppose a system of rules, so is consistent with variety in that way, but it does suggest that there is a reliable universal guide to what is good, while Aristotle seems to be claiming that such attempted generalizations are always defeasible. Some of these ideas are developed more explicitly in NE V and IX. Precision and Casuistry in Ethics In discussing epieikeia (equity) in NE, V, 10 and friend­ ship in NE, IX, 2, Aristotle makes clear that in ethical matters universal laws are not possible. Certain matters of distributive justice arise at the level of the state, and for these issues laws are needed. But even if these laws are made by just rulers Aristotle suggests they will break down: ‘‘. . . all law is universal but about some things it is not possible to make a universal statement which shall be correct.’’ He indicates that in such cases the law must take the usual case, even though it is not ignorant of the possibility of error. And, as in book I, he holds that the law in such cases will be correct, ‘‘for the error is not in the law, nor in the legislator, but in the nature of the thing’’ (NE, 1137b 13–19). In other words, laws are needed since they will be true for the most part and thus worth having, but the ethical realm is subject to so much variation in detail that even the best generaliza­ tions will break down. In NE, IX, 2 Aristotle spells this out with a series of cases. For example, he asks whether one should show gratitude to a benefactor or oblige a friend, if one cannot do both, and observes that all such questions are hard. The reason is that they admit of ‘‘many variations of all sorts in

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respect both of the magnitude of the service and of its nobility and necessity’’ (NE, IX, 2). Nonetheless he again emphasizes the value of generalizations, noting that for the most part we should return benefits rather than oblige friends (NE, 1164b 25–33). The main point here is the nature of the results one might expect to attain in the study of ethics. One cannot expect to discover completely reliable universal rules either about what acts are required of agents or even about the reliability of goods such as courage. The main reason for this is the enormous variation in the details of the situations agents confront. Nonetheless, Aristotle also indicates that we can expect to find truths in ethics, and that the truth will be constituted in part by generaliza­ tions that are broadly reliable. Clearly, these remarks have direct implications for practical decisions. If laws break down in this way, what is to be done in the unusual case? If Aristotle holds that there are truths in this area, how are they to be discerned? In other words, the remarks above raise questions as to what sort of practical implications Aristotle thinks an ethical theory can have. This will be addressed in the section titled ‘‘Eudaimonia, Pleasure, and External Goods’’ but, broadly speaking, Aristotle’s remarks in NE, V, 10 indicate that he favors a casuistical approach to those cases where the usually reliable gen­ eralization breaks down. Starting Points, End Points, and Suitable Students of Ethics In NE I, 3 Aristotle argues that a young person is not a suitable student of ethics, for two reasons. First, the young lack relevant true beliefs that are necessary if one is to start doing ethics, they are ignorant of the actions of life; and, second, they are unlikely to benefit from the study of ethics because they tend to be ruled by their passions. In the next chapter, he adds that if a student is to benefit from lectures on ethics, he must be well brought up, that is, he must have a grasp on the ‘‘that’’ in ethics, or at least be capable of grasping it when advised by others. The reason for this is that in ethics we must begin with those things that are evident to us (as opposed to what is evident without qualifica­ tion) (NE, 1094b 27–1095b 13). These remarks as to how one should begin an inquiry in ethics can be supplemented by what Aristotle says when investigat­ ing weakness of will in NE, VII, 1. Here he notes that we must begin by setting the apparent facts before us (NE, 1145b 2–3). These ideas about starting points in ethics are important. Very roughly, the idea here is that an inquiry cannot begin in a vacuum but must take as its starting point certain widely held or prominent beliefs. The inquiry then proceeds by examining these beliefs. This certainly seems to be the procedure adopted in

the investigation of acrasia in NE, VII, following the passage referred to above, and also in the initial inquiry into the nature of eudaimonia in NE I, 4-5 (noted already), where Aristotle reviews and examines certain widely held beliefs about it. If so, Aristotle requires that a student of ethics should already hold beliefs of a certain sort in advance of study. The objective will then be to examine those beliefs and, if a standard dialectical method is adopted here, to seek knowledge (or understanding) by uncovering the expla­ nations (the whys) for those beliefs. (The position thus draws a distinction between beliefs, or opinions, and knowledge, or understanding. At the outset of an inquiry, the investigator begins with widely held beliefs. If the inquiry is successful he will attain knowledge. The beliefs will be justified in the sense that he will have discovered explanations for the propositions believed.) But what sort of beliefs must the student possess at the beginning? First they must be beliefs acquired through experience of actions (experience of circumstances in which significant choices have to be made), and second they must be the sort of beliefs that are acquired through a good upbringing. Some writers have supposed Aristotle to be very demanding here. They suggest that philosophical ethics is only for those who are already good. On this view a well-brought-up young person’s experience of actions will enable him already to have entirely true beliefs as to what the good person should do on any given occasion. Thus, it is said, the study of ethics will simply deepen the student’s reflective appreciation of why the life he cor­ rectly believes to be good is good. Such a view suggests that Aristotelian ethical theory will provide no practical advice at all. For the only pos­ sible students are those who need no practical advice. The ‘‘that’’ they must already grasp, prior to philosophical reflection, is what is required of them in any particular circumstance. But there are reasons to doubt this inter­ pretation. Common-sense reflection suggests that if Aristotle had held this view he would have had no stu­ dents at all. For it seems unlikely that there is any human who has true beliefs as to exactly what the right thing to do is in all possible circumstances. Furthermore, attention to the cases in NE where Aristotle adopts his method show him considering a range of widely held beliefs. This indicates that sui­ table students need only be in a position to recognize these as possible beliefs, and perhaps be inclined toward one of them. For example, in the examination of eudaimonia in NE, I, 5, the starting points, presum­ ably the ‘‘that’’ some of which a student must know in advance, include the ideas that the ultimate good is wealth or pleasure, which seem unlikely beliefs for someone who only ever makes good choices. Also telling is the other reason given above for reject­ ing the young as students of ethics. Those who are young

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in age or young in character will be dominated by their passions, so incapable of changing their acts in line with any knowledge their study brings. Yet, Aristotle notes, the point of ethical inquiry is action and not knowledge, a point reiterated in the discussion of virtue (NE, 1095a 4–11 and 1103b 26–29). The significance of this claim can be backed up by attention to an earlier remark that knowledge of eudaimonia will make us more likely to hit upon what is right (NE, 1094a 22–24). Taken together, these assertions suggest that ethical inquiry (well-conducted) is likely to make us change our actions (for the better) in particular circumstances. At least ethical inquiry is intended to achieve that. But if the students of ethics were all wholly virtuous already, ethical inquiry could not make them more likely to do the right actions. All their actions would already be correct. However, if the requirement is not that students should already have entirely virtuous beliefs, what must a young person who is well brought up believe, prior to studying ethics? One possible interpretation would take Aristotle to be setting down a minimal requirement, that experience of the actions of life must have given suitable students a sense of right and wrong, or good and bad, enough to grasp the significance of these distinctions. Lacking this, the prospective student would be unable to see the point of investigating the ultimate human good. An alternative interpretation would be that the poten­ tial ethicist must already have some correct beliefs about which acts are right, which are wrong, not just the simple view that there is a distinction. On this second view, what will need explaining is why certain correct acts are right, why others are wrong, and this is the sort of thing one might expect a conception of the ultimate good to explain. These reflections suggest that the ‘‘that,’’ possessed by a suitable student, might include beliefs of an abstract (meta-) level, for example concerning the link between virtue and happiness, or the occurrence of weakness of will; and beliefs as to what virtue requires, or what right action is in a particular case, for example how the coura­ geous person will act in certain circumstances. Furthermore, the student of ethics may be mistaken about at least some of these, of both types, prior to study. Suppose then that a suitable student must have beliefs of this sort. Inquiry proceeds by examining these beliefs. How, then, does Aristotle determine when such an exam­ ination has produced satisfactory results? What is the objective of ethical inquiry? The remarks already referred to in NE I, 4 suggest the goal is to arrive at a grasp of what is evident without qualification, and that this involves reaching the whys, explanations for the starting beliefs. But if so, how are different possible explanations to be assessed? In NE VII, 1 he indicates that the best explana­ tion will preserve as true as many as possible of the widely held beliefs, and the authoritative beliefs, canvassed at the

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outset, but also explain the conflicts found among the starting beliefs (NE, 1145b 3–7).

Aristotelian Method and Conservatism in Ethics It might be suggested that this view about the objective of ethical inquiry has rather conservative tendencies. It constrains ethical theory to retain as many as possible of the widely held and authoritative beliefs existing prior to the inquiry. In this respect, Aristotelian ethics might seem to differ in outlook from the position of classical utilitarians such as Bentham and Sidgwick whose aim was to put ethics onto a scientific base, providing a scientifically reliable method for determining what to do. For them it was possible that the method, once discovered, might lead to large-scale revisions of practice. But the degree of conservatism implied by the Aristotelian method will in fact depend on the nature of the preexisting beliefs. Given a high degree of uniformity among these beliefs, then the method suggests that the theory should at most explain those beliefs, and thus confirm them. Take an example from applied ethics. Suppose that in medical practice there is widespread agreement about the importance of informed consent from patients, then the Aristotelian will simply expect ethical theory to explain that belief and will reject any theory that suggests the belief is false. However, the method need not be particularly con­ servative in those areas where there is widespread disagreement. In such cases, it will allow the theory to reject many people’s beliefs and in that respect be highly revisionary. A practical example might be the problem of abortion where some believe it to be wrong in all circumstances, some believe it to be permissible in all circumstances, and there is a huge variety of beliefs held along the spectrum between these polar positions. In such a case, the Aristotelian method might expect ethi­ cal theory to vindicate only a small proportion of the beliefs held. (Some might suggest that Aristotle’s defence of the importance of virtue in eudaimonia is another example of radicalism permitted by his method.) A different case might be where two widely held beliefs clashed, as when it is found that there is a quite general gap between the moral beliefs we assert and those we express in practice. A practical example might be the gap between widely expressed views about the horror of homelessness being found among people who do not take the homeless into their spare rooms. In this case, an ethical theory might highlight the conflict as well as leading to the vindication of either the asserted belief or the practice. In all these sorts of cases, then, Aristotelian method can support quite large-scale ethical change.

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Aristotelian Ethical Theory: Eudaimonia, Human Nature, and Virtue If these are the principles governing his examination of ethical issues, how does he apply them to his two central questions? What follows will explore how he develops a conception of eudaimonia that appeals to a conception of human nature and how he then develops an account of virtue that can show how the life of virtue is a life of eudaimonia. Before turning to the detail, brief comment can be made on the general sort of ethical theory Aristotle advances. What has been said already indicates that Aristotelian ethical theory is a virtue theory, and it is there that its greatest relevance to applied ethics may be found. However, three other general features of the the­ ory can be noted. First, it incorporates an objective conception of the ultimate good at which a human life should aim. Second, the theory is eudaimonist. Aristotle holds that the ultimate good at which a life should aim is eudaimonia, or happiness. This does not mean that the agent should aim at eudaimonia in every action. Virtuous action has its own distinctive motives. But eudaimonia is the point of life. A life goes better to the extent that it realizes eudaimonia and less well insofar as it diverges from this ultimate good. Thus explaining the relation between virtue and eudaimonia provides a reflective justification of the virtuous life. The conception of the virtues is con­ strained by this feature of Aristotle’s theory. In the end, if virtues are valuable, this can only be because they play a role in achieving this eudaimon life (though Aristotle also allows that ‘‘every virtue we choose indeed for them­ selves’’ (NE, 1097b 2–3)). So it must be possible to provide an account of what virtue is that reveals the way in which possession of virtue contributes to the eudaimon life. This second general feature also has repercussions for applied ethics. For, since the virtues may figure in appli­ cations of the theory, this eudaimonist constraint on what virtues are will have a bearing on what acts the virtuous individual performs. Third, Aristotle puts forward a perfectionist theory. He holds that eudaimonia, the ultimate good, is achieved in a life that perfectly realizes human nature. This aspect of the theory constrains both the account of eudaimonia and the account of the virtues. Thus it too has repercussions for applied ethics in the way that the second feature does.

Eudaimonia Clarification of Aristotle’s views on eudaimonia requires that something be said on several points. First, why did Aristotle think there was such a thing as an ultimate good, which all agree verbally to be eudaimonia? Second, to what

English concept, if any, does this Greek concept corre­ spond? Of what is it that Aristotle is trying to produce a correct conception? Third, the application of his favored method to the investigation of the concept needs to be outlined. The argument for an ultimate good

Aristotle’s argument for the existence of an ultimate good begins from the observation that every (rational) action aims at some good. If an objective is thought of as good, it will either be because it is instrumentally good, it is chosen for the sake of some further good toward which it contributes or because it is good in itself. So, when choosing what to do, an agent’s reasoning must always end at some objective thought good in itself, since instru­ mental goods always presuppose some further good. Aristotle’s next move has been debated, but can be coher­ ently construed as the conditional claim that if there is some ultimate good at which we aim in all actions it will be of no little importance to discover it (NE, 1094a 1–26). In other words the fact that all our actions aim at objec­ tives thought good in themselves leaves open the possibility that there is a single ultimate good. Thus Aristotle takes the argument to establish the point of investigating what the ultimate good is. But the argu­ ment’s distinction between instrumental goods and goods in themselves also leaves open whether the concept of an ultimate good is such that its ultimacy consists in it alone, in some sense beyond all other goods, being pur­ sued for its own sake, or whether it can be ultimate while being simply a composite of a group of noninstrumental goods (all equally noninstrumental). In addition, there­ fore, this initial argument leaves open whether there will turn out empirically to be just one concrete good for humans, that which is worth pursuing, ultimately, in every (fully rational) action, or a range of such goods, which fit together in such a way as to constitute a unity. On this interpretation, Aristotle’s initial supposition that there is an ultimate good is only conditional (in various ways). He has not even tried to show that it must exist. Reflection on human (rational) action leaves open the possibility that there is such a thing and, if it exists, it would be worth knowing. This is sufficient to motivate the inquiry. Subsequent discussion, for example, the fact that all reach at least verbal agreement as to what it is (eudaimonia), provides some additional support for its existence; and the fact that the inquiry into its existence seems to be successful constitutes further confirmation. So Aristotle does enough to show us that his first key ques­ tion, the investigation of eudaimonia, is worth pursuing. What exactly is it that Aristotle investigates once he has established that Greeks in general agree that the ultimate good is eudaimonia? The most authoritative translations agree on the translation ‘happiness.’ This reflects the need for a concept that many see as an

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ultimate goal, but about whose actual content there is disagreement.

Aristotle’s method and preliminary inquiry into eudaimonia

How, then, does Aristotle apply his method, described above, to the initial investigation of eudaimonia, or happi­ ness? Aristotle begins his inquiry, in NE I, 4, by considering views as to its content that have been held by the wise or the many. These constitute the ‘‘that,’’ the initial beliefs that require examination. Of these views, several are swiftly dismissed, namely the idea that it is a life of pleasure, or one that achieves honor, or one in which the agent becomes wealthy. Wealth is only a means to an end, the value of honor depends on who bestows it, and the life of pleasure is not the ultimate good for humans; such a life is more suited to beasts. Two possibilities are left: that it is an active life of practical virtue in which courage, justice, and so on are fully exhibited, or that it is a life of intellectual excellence involving contemplation or deep reflective understanding (NE, 1095b 14–1096a 10). This would presumably be the type of life that fully satisfies man’s natural desire to know (MP, 980a 21). These rapid dismissals of some popular views may seem contrary to what the method requires. But his sub­ sequent discussion of pleasure, honor, or wealth allows that each has some relevance to eudaimonia. Thus he follows his method in seeking to preserve as much as possible from the initial starting points. In sum, Aristotle seeks an account of eudaimonia that explains the widely held verbal agreement that this is the ultimate good but is also able to accommodate as much as possible of the variant beliefs as to what it substantively consists of. This is just what his method requires. In NE I, then, his method has left him with two rival conceptions of eudaimonia (the active life of practical virtue and the contemplative life). Their relation has been an important matter in the scholarly interpretation of Aristotelian theory. For present purposes, the focus is on the active life of practical virtue, as more crucial to applied ethics, and Aristotle’s reasons in NE I–IX for thinking it constitutes an eudaimon life. If it does, then Aristotle will have answered both his central questions: he will have identified eudaimonia and shown that the virtuous life does pay. To answer his questions in this way, he needs to explain the connection between the eudaimon life and the life of virtue. He achieves this by, first, producing an argument that illuminates the concept of eudaimonia and, second, elaborating what practical vir­ tue is in a way that shows how it is connected with the concept so illuminated.

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Eudaimonia and Aristotle’s Conception of Human Nature The argument he produces to illuminate the concept of eudaimonia concerns human nature. He argues that where a kind of thing has a function, a good member of that kind is one that fully performs that function. Thus if the function of a sculptor is to sculpt statues, a good sculptor is one who sculpts statues properly (similarly, a good knife is one that cuts properly). He then argues that human beings should be understood as having a function. Their function is to actively exercise reason. Hence the human good (eudaimonia) will be achieved by an individual who actively reasons properly (NE, 1097b 22–1098a 18). In other words, what a good X is depends on what kind X belongs to, which is specified by reference to the func­ tion of things of that kind. This is the argument that Aristotle implicitly relied on above in denying that the life of pleasure is eudaimon, thus attacking a classical utilitarian view. Key aspects of this argument are, first, the claim that humans have a function, and second, the claim that the human function is to exercise reason. But do humans have a function? And if so, is that function the exercise of reason? Both questions require a detailed account of the argu­ ment, which is only cryptically stated in NE. For present purposes, suffice it to say that a possible response depends on understanding humans here in the light of his general conception of natural kinds articulated in Physics, II. Very briefly, Aristotle holds that a member of a natural kind possesses a nature, in virtue of which it belongs to that kind, and in virtue of which it is the thing that it is. (The nature constitutes the entity’s essence.) This nature plays a particular role in explaining the entity’s behavior. Thus, for example, an acorn has a nature that explains some of the changes the acorn can undergo, those changes that it undergoes when it develops properly. In the acorn’s case, these are the changes it goes through as it develops into a fully grown oak tree, the sort of tree that best sustains the species. The nature of the acorn explains these changes teleologically. The idea is that the nature of the acorn is constituted by a particular set of potentialities. (These are a subset of all the acorn’s potentialities, a subset of the ways in which an acorn can change.) When the acorn realizes these potentialities it behaves as a good member of the kind. It is in this sense that those changes are explained teleologically. It is also in this sense that an acorn can be thought of as having a function. Its function is to realize that special set of changes that are explained teleologically. And this provides the link to good acorns (as in the case of the sculptor). Good acorns are those that perform their function. This is the sense in which Aristotle thinks of humans as having a function, such that good humans perform that

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function properly. A human being has a nature. This nature explains some of the changes that a human under­ goes, those changes he undergoes when he develops properly, once again those that contribute to the persis­ tence of the species. Aristotle identifies those changes as the ones that occur in a cycle of development in which the potential for reason is fully realized. How does Aristotle identify this as the key human characteristic? He relies on an analysis of empirical observation. He identifies the nature of the key developments that must take place in a human if that human is to contribute optimally to the persistence of the species. (The phenomenon Aristotle observes and seeks to explain is that of a stable eco­ system, and his analysis of natural kinds accounts for their behavior within that framework.) Thus his claim is that the cycle of development that a good human goes through is one in which the power of rationality is devel­ oped and exercised fully. In the NE, only the bare bones of the argument are presented. Furthermore, the conclusion that the good human life involves the full exercise of rationality is not elaborated. In fact, unpacking what it means for a life to be fully rational will be a complex matter. This is unsurprising since the human case is that of the most complex natural kind, so the account of human nature needs to be corre­ spondingly more complex. Aristotle indicates a little more about these complexities in Politics (1252a 1–1253a 39). There he argues that human nature is such that the full realization of the human function can only take place in a polis. The basic reason for this is that humans are a gregar­ ious species (like bees), hence their proper development involves projects shared in common. Some remarks here also gesture toward the way in which some of these shared projects involve the realization of the potential for reason. However, the point at this stage is that a defence can be offered of the key claims in Aristotle’s argument here and thus of his conception of human nature. This in turn provides a defence of his view that the human good must be elaborated through attention to this conception of human nature, and so the view that eudaimonia must consist in a life which fully realizes the potential to exercise reason. Eudaimonia is linked to reason, so the life of practical virtue can be shown to be eudaimon if it can be shown that practical virtue requires the full exer­ cise of rationality.

The nature of practical virtue After the initial attention to eudaimonia in NE I, Aristotle examines both what virtue is and the nature of particular virtues. Contrary to Socrates in Plato’s Meno, Aristotle approaches the question of what virtue is by considering first how virtue is acquired. In what follows, the same order will be adopted.

The acquisition of virtue

‘‘Neither by nature, then, nor contrary to nature do the virtues arise in us; rather we are adapted by nature to receive them, and are made perfect by habit.’’ Thus Aristotle summarizes how the virtues are acquired (NE, 1103a 23–26). If the virtues are to constitute the realiza­ tion of human nature, they must be, in a sense, in accord with human nature. But this aspect of the realization of human nature requires a particular kind of external inter­ vention. (The virtues will not simply develop, in normal circumstances, unless prevented.) So Aristotle, in noting that they do not arise by nature, accepts that they are artificial, in a sense, and this is because they cannot develop unless the agent’s behavior is initially appropri­ ately guided by others. At a later stage in development, the agent may become capable of training himself, getting himself to do the right thing (in cases where he lacks the virtuous disposition and so has to be strong-willed). When he talks of the role of habituation in virtue acquisition, Aristotle has in mind something more com­ plex than the conditioning of a child’s behavior. To have a virtue is not a matter of having the mere habit of behaving in a certain way, a conditioned behavioral response brought about through (guided) repetition. As Aristotle describes it, habituation involves guidance, and may involve repetition, but crucial in his analysis is the role of practice or behavior. And habituated practice plays a critical role in the acquisition of the true beliefs required for virtue (as well as the right kind of desires). For Aristotle there are several stages of habituation that an individual must go through if he is to acquire virtue. Reflection on NE, I, 3-4 indicates that the acquisi­ tion of virtue involves grasping first the ‘‘that’’ and then the ‘‘why.’’ Thus this process of habituation appears to run in parallel with what a student must go through in pre­ paring for and then studying ethics. Granted this distinction between grasp of the ‘‘that’’ and the ‘‘why,’’ there are at least three stages that the young must go through in acquiring the ‘‘that.’’ First a student must learn that a certain type of behavior is required in particular circumstances. In the young, in particular, this is learned from others. Thus in NE II, 1 Aristotle emphasizes the importance of all who play a role in guidance, including legislators, parents, and teachers, for example. But to know the ‘‘that’’ in this sense is merely to have acquired the information that one’s parents, say, believe this is the courageous thing to do. At this stage, the child believes this is the right thing to do merely because it is what those she trusts advise her to do. But to believe the ‘‘that’’ in the strong sense is to have grasped that this is the right thing to do for oneself, through coming to enjoy it properly. There are two further stages of habituation here, first coming to enjoy the required act, as opposed to doing it because instructed by others, and then coming to enjoy it properly, where

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one appreciates what it is in the action that is truly enjoyable. Critical to the second stage is action. The child, in the example, must actually do what her parents advise her to do as the courageous act. Only through action can the child come to see for herself that this is indeed the courageous act. This kind of knowledge can only be acquired through trying the activity and coming to enjoy it (which may require repetition). It is in this aspect of habituation that practice has been said to have cognitive powers. The process of seeing for oneself ‘‘that’’ an action is the right thing to do goes hand in hand with learning to enjoy doing it. The last stage in which the student appreciates what it is about the action that is properly enjoyable must be closely related to a further stage in the development of virtue, namely the point at which something is grasped of why the action is virtuous. This reflective understanding must also be at least part of what is acquired through the study of ethics, but it would seem that it might well contribute to an appreciation of exactly what it is in right action that is truly enjoyable. If so, the grasp of the ‘‘that’’ in this way will overlap with the grasp of the ‘‘why.’’ However, the main point here is that the role of habi­ tuation initially is to enable the young to grasp for themselves the ‘‘that’’ regarding virtue, a requirement of truly virtuous behavior. Once that stage is attained, a second stage, the grasp of the ‘‘why,’’ becomes possible. This stage is necessary if the agent is to have a reasoned understanding of virtuous action. This may involve both a full appreciation of why a particular act is required, as virtuous, in the relevant circumstances, and an ability to grasp fully the relation between practical virtue and other key concepts, such as eudaimonia.

The definition of virtue

Aristotle offers the following definition of virtue: ‘‘Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being deter­ mined by a rational principle, and by that principle by which the man of practical wisdom would determine it.’’ (NE, 1106b 36–1107a 2). This, then, is the condition that arises, first, from habituation: the practice of right action, guided (initially) by good parents, teachers, and law; and in due course, from reflection on the ‘‘that’’ that has been established through habituation. What kind of condition is Aristotle describing? First, virtue is a state of character (hexis). This is a settled disposition of the mind that disposes the agent to act in certain ways when circumstances arise to which that state of character is relevant. It is a state of character concerned with prohairesis, a technical term in Aristotle’s analysis of action, better translated as ‘‘preferential choice’’ to mark that. So preferential choice must be explained.

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Children do not make preferential choices, though they act hekousios (intentionally). A child is capable of originating action through possessing both a desire and the relevant correct beliefs, and this is all that is necessary if the child is to act hekousios. But the desires of children are not preferential desires, the sort of desires that lead to preferential choices. Such desires are formed in the light of deliberation as to how to attain goals, where those goals reflect a conception of the good. Children, as humans in whom rational powers are not realized (though those powers may be in the course of realization), lack such a conception of the good. They are subject only to passing desires. Thus to make a preferential choice, it is necessary not only to act on a desire and a belief, but to act on a desire that derives from a conception of the good. The virtuous person has a settled disposition of the mind to make preferential choices. But the vicious also make preferential choices, so the definition specifies more about the state of character of one who makes virtuous choices. The virtuous state of character lies in a mean relative to us. What this entails is that the agent’s passions, or emotions, are appropriate, so as to give rise to actions that are appropriate in the circumstances. The doctrine of the mean does not con­ cern moderation, but appropriateness. And it focuses on both the motivating condition of the agent and the actions that result. In places Aristotle seems to suggest that the emotions are primary (NE, 1105b 25–26; NE II, 6). In the case of each virtue, Aristotle envisages a scale of emo­ tional response such that there are vices corresponding to inappropriate emotions and a virtue corresponding to the appropriate emotional condition (NE, 1105b 30–1106a 2; 1106b 18-23). Thus, for example, there is a scale of emo­ tional attitudes to sensual pleasure. At one extreme, there is undue desire for such pleasure; at another there is undue indifference. These emotional conditions are asso­ ciated with vices of self-indulgence and asceticism. But there is also an appropriate kind of emotional condition on this scale, possessed by the self-controlled individual. These mean conditions involve the agent forming true beliefs about the circumstances he faces and responding with appropriate emotion, which will lead him to make appropriate choices. Thus the virtuous state of character will be a settled state of beliefs and desires, lying in a mean so as to lead to appropriate preferential choices and action. Ethical virtue, the rational principle, and phronesis

Aristotle next suggests that this mean state of choice and character is determined by a rational principle, that by which the person of practical wisdom (phronimos) would determine it. This is a crucial aspect of the definition since this is the point at which he suggests that practical virtue is a state of character involving the exercise of

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reason. Reason must enter into the mean state in several ways. First the agent must be disposed to form rational beliefs about the circumstances he encounters. Reason will enter into belief formation so that the agent forms those beliefs best supported by the evidence he has. But reason will also enter the emotional condition of the virtuous agent in that his motivational desires will reflect a reasoned conception of the good. When belief and desire are rational in this way, the agent makes the judge­ ments that would be made by the practically wise person, and acts on them. To explain further, consider how the acquisition of virtue leads to this state of mind. Aristotle envisages children as capable of acting on beliefs and desires, but not yet on rational beliefs and desires. Habituation enables a child to form more reasoned judgements as to what is worth pursuing and to develop desires that reflect those judgements. In due course the child will not pursue passing objectives simply conceived of as satisfying desires, but as good. The next stage will be for him to form a reasoned conception of what is overall worth pursuing, in the light of the preliminary view of what is worthwhile. The reasoning here involves comparative judgements: seeing that various objects are worthy of pursuit as good in different respects, and making judge­ ments about their comparative worth, thus reaching a reasoned conception of the good. (Clearly the degree of reasoning here can be more or less full, depending on the extent of the comparative judgements made.) At the same time as these developments occur, motivational states will need to develop in such a way that the agent desires those objects considered good, a process in which the agent’s desires come into line with his conception of the good. The result will be fully rational desires. This account of the role of reason in virtue is further complemented by attention to the nature of phronesis, practical wisdom that determines the principle on which the virtuous agent acts. Phronesis is an intellectual virtue, defined in NE, VI, 5 as ‘‘a true and reasoned state of capacity to act with regard to the things that are good or bad for man.’’ In NE, VI, 7 Aristotle then explains that it is the mark of the practically wise to deliberate well, ‘‘but no one deliberates about things . . . which have not an end which is a good that can be attainable by action.’’ In other words, practical wisdom is the intellectual virtue that enables the agent to arrive at a reasoned comparative conception of the good, a feature of moral virtue already referred to. It is also the rational faculty that enables the virtuous agent to work out correctly what to do on parti­ cular occasions in the light of that conception of the good (to calculate properly so as to reach the correct prefer­ ential choice). It thus involves: reasoning about universals, reaching generalizations about what is worthwhile pursu­ ing in life (making a comparative conception of the good),

and forming rational beliefs about particulars, all the variables of individual situations. Particular virtues

Having provided this definition of generic virtue, Aristotle now argues that each of the particular virtues, or each state of character widely believed to be a virtue, can be analyzed as conforming to that definition. His account of virtue must conform adequately to widely held beliefs as to what the virtues are. Thus he claims that courage, self-control, jus­ tice, and so on are states of character constituted by relevant sets of rational beliefs and desires. Each is asso­ ciated with both a particular focus within an overall conception of the good (certain rational beliefs), and a scale of emotional response (relevant rational desires). The approach can be indicated by briefly outlining one of the virtues Aristotle analyses, temperance. The focus of temperance (self-control) is certain phy­ sical pleasures, in particular the pleasures that involve touch: pleasures of food, drink, and sex. Thus the relevant emotional scale is that of desire for these sorts of plea­ sures. In this area, then, virtue involves having an appropriate conception of the value of food, drink, and sex, and pursuing it accordingly. What counts as appro­ priate can be explained by noting that it is perfectly natural to find food, drink, and sex pleasant, but that it is possible to pursue them to excess: either excessive pursuit of food, for example, quite generally, or excessive pursuit of particular tastes in food, for example a craving for chocolate. The other vice, enjoying such physical pleasures less than one should, is very rare, though the phenomena of rejecting wholesale certain types of food (e.g., vegetables), or excessive dieting, may now be more common examples. The self-indulgent are further marked by being pained when their excessive appetite is not satisfied, while the temperate agent enjoys consuming just the right amount of food or drink. The self-controlled person illustrates the reasoning that the virtuous agent engages in. She will have true beliefs about the value of pursuing the sensual pleasures of food, drink, and sex, desires that correspond to those beliefs, and correct beliefs about particulars relevant to each decision. She will then make rational choices when­ ever self-control is at issue. Full virtue and the unity of the virtues

Aristotle’s account of virtue is very demanding. It holds that one cannot possess any of the virtues fully without possessing all of them fully. Aristotle makes this clear in his discussion of practical wisdom in NE VI, illumi­ nating the key role of judgement in virtuous character. To possess any virtue fully the agent must be capable of exercising practically wise judgement in the area of concern relevant to that virtue. But to exercise wise judgement in any area of concern, the agent must be

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fully practically wise, and full practical wisdom is not itself possible without the possession of all the virtues (NE, 1144b 1–1145a 11). Although each virtue has its own evaluative focus, those areas of focus are not hermetically sealed. Courage is not possible without justice or else one may face fear to pursue unjust objectives. The virtues form a unity because guided by phronesis, which involves an overall reasoned con­ ception of the good, enabling wise judgement on every occasion. To the extent that such correct judgement in all areas is an unattainable ideal, the fully virtuous life is an ideal, but of course it is worth striving to live a life as close to the ideal as possible. Virtue, reason, and eudaimonia

How does this discussion of virtue bear on Aristotle’s main questions? He articulates and defends a definition of virtue (as a genus) such that the practical virtues are states that would be exhibited by a (practically) rational human being (NE, 1106b 36–1107a 2). The virtuous agent must have rational beliefs about the facts of particular circumstances faced, a reasoned conception of the good, and emotional responses that reflect that conception of the good. She will lack rogue desires that might distract her from pursuit of that good. Since he has argued that the life of reason is the eudaimon life, this account of virtue shows that the practical virtues are indeed those characteristics that would produce eudaimonia.

Eudaimonia, Pleasure, and External Goods Aristotle’s method requires him to preserve widely held beliefs, so he aims to incorporate within his theory the views of many that pleasure, wealth, political power, a good family, and friendship have a role in a eudaimon life. Though Aristotle dismisses the life of pleasure as con­ stitutive of eudaimonia, he shows that it can be incorporated within his account by analyzing its nature (NE, VII, 11–14 and X, 1–5) in such a way that the life of virtue will turn out to be pleasant. For Aristotle, pleasure is not a uniform category, rather distinct pleasures are taken in distinct activities: ‘‘to each man that which he is said to be a lover of is pleasant’’ (NE, 1099a 7–10). There is in effect a hierarchy of pleasures, their value depending on the activity they are associated with. Thus the truly virtuous take pleasure in virtuous actions (NE, II, 3). Pleasure is a mark of a person’s character, rather than being a goal in itself. Aristotle expresses the following general view about external goods: ‘‘Some must necessarily exist as conditions of happiness, and others are naturally cooperative and

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useful as instruments’’ (NE, 1099b 27–29). Thus one would expect there to be such a role for any of these goods within the life of virtue. Wealth is necessary to satisfy the basic needs of life, food, shelter, cures for illness, education, and so on. But beyond that it affords leisure for sharing in communal activities – discussion, drama, and so on – which contri­ bute to the development of the powers of reason. And material resources may be necessary for the exercise of certain virtues, generosity, for example. Good family aids habituation in the acquisition of virtue. More broadly, it supports the emotional develop­ ment necessary if a young person is to share in the communal activities that contribute to the development of practical rationality. The value of political power lies in the fact that such power provides an opportunity to exercise practical rea­ son, making laws that will help citizens become good through habituation (NE, 1103b 3–6). Thus it is desirable, from this point of view, that all citizens have a turn in exercising power. For Aristotle, there are three categories of friendship, and between them they cover most of the range of social interactions. However, his paradigm category is virtue friendship, in which two people enjoy each other’s com­ pany in virtue of their good character. Friendship between the virtuous is perfect friendship, and the other two categories are analogous to virtue friendship. These other categories are relationships formed for the sake of pleasure, for example a relationship in which two people enjoy each other’s humor, and those formed for the sake of utility, for example a commercial relationship between a consumer and a market-stall holder. But if the eudaimon life is an active life of virtue, it does not seem, on the face of it, to require friendships. So how can Aristotle show the value of friendship within his theory? Aristotle’s remarks on the close proximity of friendship to justice are suggestive. The value of both friendship and justice lies, at least to a degree, in the fact that a human can only realize his nature in a polis, a community governed by justice. The exercise of ration­ ality involves, in various ways, shared projects (Pol., 1253a 7-18). And friendship, like justice, is the cement that holds the requisite communities together. Friendship, then, facilitates the individual’s realization of his potential for rationality, and thus his achievement of eudaimonia (NE, 1155a 5–28).

Prominent Features of Aristotelian Ethical Theory Some general features of the Aristotelian approach to ethics can now be noted. First, in focusing on eudaimo­ nia Aristotle makes the shape of life as a whole central

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to his ethical perspective. His key question is what sort of life a human being (with human essential powers) should live. Thus practical virtues are characteristics an agent needs to develop if a human life as a whole is to have the shape required for eudaimonia. The virtues constitute a unity because a eudaimon life will constitute an integrated unity. This can be contrasted with an approach that makes acts directly the central focus. Thus some forms of consequentialism try to develop a method to determine what act to perform at any given time or rules governing kinds of action to perform in relevant circumstances. The Aristotelian perspective does have implications for action. Virtues must be dis­ played in action. But acts cannot be evaluated individually, or by reference to rules; what matters is the character of the agent that leads to action. Second, the Aristotelian approach is embedded in a theory of moral psychology. Aristotle’s theory of virtue depends on a theory of intentional action and preferen­ tial choice within which it can be explained how virtue is a condition in which reason governs desire. This explains why the virtuous person will regularly make virtuous preferential choices, leading to the acts characteristic of that virtue. This can be contrasted with some rightsbased, duty-based, or consequentialist theories of ethics which appear to pay little attention to moral psychology, and thus make it hard to see how, exactly, considerations of rights, duties, or consequences enter into an agent’s practical reasoning. A third significant feature of Aristotle’s approach is his emphasis on reason in ethics. Rationality enters into his scheme in two ways. At one level, Aristotle seeks a rational basis justifying certain widely held ethical beliefs about the nature of eudaimonia and the importance of behaving virtuously. Thus he develops an account of the key concepts, eudaimonia, virtue, and human nature, which reveals their conceptual connections. But that account in turn demonstrates the role of reason in prac­ tical deliberation about specific acts, since a virtuous state of character is one in which desires are rationally ordered, and that leads to acts in line with rational preferential choices. This can be contrasted with a Hobbesian or Humean view of desires. Finally the Aristotelian approach is based on a dis­ tinctively teleological conception of human nature within which humans have a goal, and thus can flourish to the extent that they achieve that goal, namely exhibit­ ing rationality. This implies that humans are perfectible, they can change for the better, by realizing their poten­ tial to be rational (or for the worse, by realizing their potential to be irrational). Their nature is not, in this sense, unalterable. Again Hobbes’ view of humans, as (unalterably) desire-satisfaction machines, constitutes a contrast.

Aristotelian Ethics and Applied Ethics What significance, then, does Aristotelian ethical theory have for applied ethics? In what follows, a distinction will be made between direct and indirect implications of the theory. The direct approach considers Aristotle’s theory as a virtue theory, and asks how, if at all, that theory can be applied. A virtue theory, here, holds that the right action in any particular case is that action that the virtu­ ous agent would perform. An indirect approach examines the way in which spe­ cific views, such as the account of human nature, or of eudaimonia, or his view of the relation between individual flourishing and the polis, might have a bearing on specific questions in applied ethics.

Direct Implications for Applied Ethics If Aristotelian ethical theory is considered as a virtue theory, then there have been both positive and negative interpretations of its implications for practice. In discuss­ ing these views, it is necessary to bear in mind Aristotle’s methodological remarks on starting points, satisfactory results, and precision in ethics, as well as the specific nature of his account of the virtues and their role in deliberation. Negative views of the practical implications of Aristotelian theory

As noted, one view holds that Aristotle’s ethical theory has no implications for applied ethics. This is because Aristotle is understood as requiring that students able to benefit from the study of ethics must already have true beliefs as to what action is required in any particular circumstance. In other words, an appropriate student will already be disposed to make all the right choices in the hum-drum decisions of daily life, as well as being clear what to do in the more dramatic cases discussed in medical, business, media, and environmental ethics texts. Furthermore, if a person’s upbringing has disposed her to make the wrong choices on occasion, no amount of reflec­ tion will change her. A rather similar claim has been made by some writers on applied ethics. In their view, applied ethics courses are pointless since moral behavior depends on training, not reflection. Advocates of such a position hold that there is no difficulty telling right from wrong, the only difficulty is getting oneself to act on one’s knowledge. Such a claim is surprising given the disputes over abortion, euthanasia, and whether it is ever appropriate to cease treating, or feeding, persistent-vegetative state-cases, to take just some areas of dramatic applied controversy. We have seen above that on the grounds both of common sense plausibility and of textual analysis, this is

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not a plausible reading of Aristotle’s attitude to applied ethics. Aristotle does argue for the importance of habitua­ tion in the acquisition of virtue. But his analysis is consistent with that process providing potential students of ethics with a preliminary grasp of the distinction between right and wrong, which can develop through ethical reflection into a richer conception of what each virtue is and of the overall good to pursue in action. Reflection can lead to changes in practice. Assessment of the negative view also depends in part on the scope of applied ethics. So far in this section it has been assumed that the purpose of applied ethics is to provide guidance at least (and perhaps answers) for specific ethical problems. But it might be held that the study of applied ethics involves not merely grasping what to do, but fully appreciating why such actions are worth doing. If so, even on the implausible proposed interpretation Aristotelian ethics can contribute to applied ethics. For on this account the study of ethics will provide the ‘‘why,’’ the deeper reflective justification for all the particular acts performed. Positive views of the practical implications of Aristotelian theory

But if Aristotelian ethical theory does not merely provide a deeper understanding of the value of the good life for those who are already good, in what way can the ethical reflection it involves change the student of ethics, and how can this bear on applied ethics? As a virtue theory, Aristotelian ethics suggests that the right action will be that which is virtuous in the circum­ stances. But if Aristotle were only to claim, as some suggest, that the virtuous act is that which the practically wise person (phronimos) would perform, and that the prac­ tically wise person is simply one who has all the virtues, his position would be uninformatively circular. However, it has already been seen that Aristotle offers a much richer account of virtue than this implies. So how helpful is that account? Suppose that the student of ethics merely begins with the true beliefs that some acts are right, others wrong, then the first effect of Aristotelian ethics will be that the student will conceive of practical problems in terms of the concepts of virtue and vice. His question is now not merely what action is right or wrong, but what is coura­ geous as opposed to cowardly or rash, self-controlled as opposed to self-indulgent or ascetic. Using all these virtue concepts will itself shape the problem, and thus the factors that he takes into account in reaching a decision. Consider, for example, a patient reflecting on euthanasia. Suppose that instead of asking whether it is right or wrong he considers whether it would be a brave, rash, or cow­ ardly act, in the circumstances, and whether it would be just or unjust. Thinking in these terms forces the patient to address what, in these circumstances, bravery and justice mean, and so what factors of the situation must

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be attended to in order to determine what courage and justice here require. This affects the features of the conception of the good in terms of which the agent reasons. That conception here has the shape of what the courageous or just person pursues (a shape quite different from that of maximizing pleasure, for example). But how much practical help does this really provide? A way of thinking about specific problems has been offered, but does this method provide any resources for determining exactly what to do? Once the agent has got as far as deciding to be brave, how does he determine what bravery concretely requires? Does the patient above sim­ ply rely on his pretheoretical conception of bravery and justice, or does Aristotle’s theory add anything? In brief, considerable further resources are provided through the analysis of virtue and the particular virtues outlined above. These suggest that a person of good judgement reflecting on what to do may attend to what (in this case) justice and courage are, what virtue is, and what good judgement (phronesis) itself is. First, so far as a particular virtue is concerned Aristotle shows that an account of justice, for example, need not simply endorse the traditional views that justice involves returning what one owes, or that it requires one to help friends and harm enemies. Justice is a matter of the proportionate allocation of honor, money, and necessities for survival (soterian), and the categories of friend, enemy, or creditor may not pick out the crucial criterion of desert (NE, 1130b 1–5; 1131a 25–29). The account of particular virtue, then (whether revisionary or not), elaborates the factors the agent should attend to in deciding what vir­ tuous action requires. Second, the analysis has revealed that virtues are states of characters involving true beliefs and appropriate desires formed in the light of a conception of the good. So virtuous action requires attention to relevant facts in the circumstances and motivation by desires reflecting that conception of the good. Third, the Aristotelian account casts further light on this overall conception of the good by incorporating within ethical virtue the intellectual virtue of practical wisdom, ‘‘a true and reasoned state of capacity to act with regard to the things that are good or bad for man’’ (NE, 1140b 4–6). The analysis of practical wisdom casts light on what an agent must do to form a conception of the good. It is necessary to reflect on the beliefs formed through habituation. Having learned to enjoy certain quantities of food and drink, for example, or sharing goods in certain ways, or speaking the truth in certain contexts, the agent can reflect on certain general claims about what exactly is worthwhile pursuing as self-con­ trolled, or just, or courageous, and how different objectives fit together into an overall conception of the good. Practical wisdom involves reaching a conception of the good through reflection on beliefs formed about

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particular circumstances, and forming rational preferen­ tial choices in light of it. Putting these three ideas together, the rational agent may choose what to do in light of his current analysis of what courage and justice are, which will be reached through reflection on beliefs about courageous and just acts formed through habituation. These conceptions of courage and justice will in turn shape the conception of the good in light of which good judgement is arrived at. From a practical point of view, then, for the Aristotelian the right thing to do is what the phronimos would do, but his theory gives content to this by providing a detailed account of how to reach an overall conception of the good, its relation to emotional responses, and habituation, and its role in particular judgements. It indicates in some detail the considerations which, given the definitions of virtues, are pertinent to particular virtuous decisions. It points out the significance of correct empirical beliefs about particulars, and rational desires, if good preferential choices are to be made. Nonetheless, these outlines do not indicate a precise method for reaching a judgement in each practical decision. Consider again the agent deliberating about euthana­ sia. Thus far the Aristotelian theory has provided a conceptual framework within which to reflect on the issue. More than that, it has provided a precise account of particular virtues, thus delineating the considerations that a just, courageous, self-controlled agent would attend to in reaching a decision. To this can be added the fact that the virtuous agent will exercise practical wisdom in making the judgement. Yet this does not seem to deter­ mine the right action in the way that certain utilitarian theories, say, might claim to do, by providing a mechan­ ism for working out exactly what to do. Direct positive implications, precision, and casuistry

Here Aristotle’s remarks on method are relevant. Aristotle held that the same degree of precision was not to be expected in ethics as in areas of inquiry such as mathe­ matics. One interpretation of this claim supports the view that there is no simple answer to questions about the rightness and wrongness of most sorts of actions. Thus it is unrealistic to expect a virtue theory to do more than give a fairly precise account of the nature of the person who will make virtuous judgements. As the remarks in NE, V, 10 indicated it is a mistake to think that a rule, or set of rules, can be provided that will accommodate all the variety of considerations that practi­ cal decision making involves. However, Aristotle’s remarks on casuistry also indicated how the practically wise agent will deal with situations in which general rules break down. This further supplements his account of the practically wise person’s overall conception of the good. ‘‘When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right . . .

to say what the legislator himself would have said had he been present, and would have put into his law if he had known’’ (NE, 1137b 19–24). This can be generalized to any case where two general claims in the practically wise person’s conception of the good conflict. Suppose he holds that it is generally worthwhile speaking the truth, and generally worthwhile supporting friends, but these aims conflict in the present case. Then it seems that the agent must reflect back on past cases in which he spoke the truth, and those in which he supported friends, and con­ sider how the generalizations relate to those cases. This will indicate the weight attaching to these principles in the past and so inform the judgement in the present case. On this interpretation of the Aristotelian view of applied ethics, the aim should not be to specify exactly how to reach the right decision on all occasions. No such set of guiding rules can be provided. What is needed, in contrast, is the right framework for thinking about diffi­ cult practical problems. That framework is to think as the phronimos would, but this is not redundantly circular. Aristotelian virtue theory provides an adequately rich framework, outlined above, to delimit fairly tightly the kinds of decision that might qualify as correct. Indirect Implications of Aristotelian Theory for Applied Ethics So far, Aristotelian ethical theory has been considered simply as a virtue theory. But the nature of his discussion of the virtues provides other resources that are relevant to debates in applied ethics. Consider first Aristotle’s discussion of eudaimonia, or happiness. This is a discussion of what is ultimately worth pursuing, so must have some potential to affect practice. Recent work on happiness in welfare economics and psychology confirms this, though much of it lacks awareness of Aristotle’s profound contribution. His con­ clusion here is complex, making the relation of his discussion to practical issues more indirect. For if the life of (practical and/or theoretical) reason is what is ulti­ mately worth pursuing, then it has to be pursued indirectly. For a rational life is itself one in which rational goals are pursued, hence the eudaimon life will be pursued (indirectly) by pursuing the goals of reason. Applied ethi­ cal questions will then turn on the nature of the goals of reason, and that takes us back to the decision making of the virtuous agent that has just been discussed. Nonetheless, a discussion of the ultimate good must have some bearing on the question of what the all-things-considered conception of the good the virtuous agent will hold and thus the kind of judgements he will make in specific cases. Aristotle’s discussion of eudaimonia is relevant here at least in a negative way. For his observations about the importance of pleasure, wealth, and honor (or public esteem) at least show that practical decisions in

Aristotelian Ethics

business, or journalism, for example, which treat any of these as ultimate goods, must be mistaken. His subsequent remarks about the actual place of all three in a eudaimon life must also help shape the virtuous conception of the all-things-considered good to be achieved by virtue. A second aspect of Aristotle’s ethical theory may also have an impact on the virtuous agent’s conception of the allthings-considered good. This is the view that the full realiza­ tion of human nature, necessary for the living of a good human life, can only take place in a polis. Thus a courageous agent will consider the value of defending the state in light of the fact that the state is a prerequisite for any individual to flourish, and that some states may be better constituted to promote individual flourishing than others. Similarly, action in line with the virtue of distributive justice will reflect the extent to which different distributions contribute to the flourishing of the state and thus of each individual within it. These are still rather general constraints. However, they will affect decisions in particular practical cases. Thus ethical problems in business, for example questions concerning the purpose of business, as well as issues concerning pay and responsibility in business, will need to be considered in light both of what constitutes happiness and of the fact that an individual flourishes fully in a flourishing society. This second aspect is developed in some detail by discussion of friendship. The analysis of virtue friendship has direct practical implications for any agent’s concep­ tion of a good life. In addition, the wider discussion of good social interactions has clear implications for business ethics and perhaps ethical issues in the media, such as the importance of privacy and honesty. Finally, Aristotle’s conception of human nature, as a set of potentialities realized fully in a life of reason, is relevant to various issues in medical ethics and may also be important in business ethics. On the medical side, Aristotle’s picture of human nature will be relevant to determining both the nature of human health and illness and the quality of a life affected by ill-health. On this picture, illness of any sort will consist in states which incapacitate the realization of essential human potential. Such an account can contribute to the clarifica­ tion of the concept of mental illness, thus providing a clearer view on the ethical issues that arise in psychiatric treatment. So far as quality of life is concerned, the account suggests that the current quality of a particular life will depend on the extent to which the agent is able to exercise those capacities whose exercise is involved in the living of a fully rational life. Such a perspective highlights the signifi­ cance of mental health for quality-of-life assessments, as well as the extent to which physical incapacities prevent the agent from pursuing significant rational plans. Furthermore, the Aristotelian picture of a human as a set of essential potentialities, whose good is found in the fully rational life that realizes those potentialities, is rele­ vant to debates about abortion, euthanasia, and the

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treatment of animals. For it provides a picture within which these essential potentialities (which make a member of the species human) are fundamental in ethical reflection. This challenges the idea that for these issues personhood is what matters, not membership of the human species.

Conclusions Aristotelian ethical theory provides two kinds of resource for applied ethics. As a virtue theory, it provides a frame­ work for conceiving specific applied problems and, within that framework, offers fairly tight constraints on what might count as the right judgement in each case. However, it suggests that specific problems may involve too many variables for there to be any precise mathema­ tical calculus available to determine what to do on each occasion. It can nonetheless allow that on each occasion of judgement there is a single correct course of action. In addition to the central notion of a virtue theory, Aristotelian ethics provides some additional considera­ tions that can be made use of in approaching specific areas of applied ethics. Some of these feed into the delib­ erations about the good that will inform the judgements made by a virtuous agent. Others bear more indirectly on the reflections of such an agent. Rarely will these general considerations determine precisely what must be done in particular circumstances where they apply, in the absence of attention to a detailed elaboration of all the particular features of those circumstances. This is again consistent with the above remarks on precision. See also: Friendship; Greek Ethics, Overview; Health and Disease, Concepts of; Human Nature, Views of; Mental Disorder, Concept of; Moral Particularism; Perfectionism; Platonism; Business Ethics and the Quality of life; Sen’s ‘‘Capabilities’’ and Economic Welfare; Theories of Ethics, Overview; Virtue Ethics.

Further Reading Annas J (1995) The Morality of Happiness. Oxford: Oxford University Press. Barnes J (ed.) (1984) The Complete Works of Aristotle: The Revised Oxford Translation. Princeton: Princeton University Press. Bentham J (1789) An Introduction to the Principles of Morals and Legislation. London. Broadie S and Rowe C (2002) Aristotle – Nicomachean Ethics. Oxford: Oxford University Press. Gottlieb P (2007) The Virtue of Aristotle’s Ethics. Oxford: Oxford University Press. Hobbes T (1651) Leviathan. London. Hume D (1739) A Treatise of Human Nature. Selby Bigge LA (ed.) Oxford: Oxford University Press. Hursthouse R (1987) Beginning Lives. Oxford: Blackwell. Hursthouse R (1999) On Virtue Ethics. Oxford: Oxford University Press. Irwin T (1985) Aristotle’s Nicomachean Ethics. Indianapolis: Hackett.

204 Aristotelian Ethics Irwin T (2007) The Development of Ethics, Vol. 1. Oxford: Oxford University Press. Nussbaum M (1993) Non-relative virtues: An Aristotelian approach. In: Nussbaum M and Sen A (eds.) The Quality of Life. Oxford: Oxford University Press. Nussbaum M (1986) The Fragility of Goodness. Cambridge: Cambridge University Press. Plato (1977) The Republic. (Burnet I, ed.) Oxford: Oxford University Press. Rorty A (ed.) (1980) Essays on Aristotle’s Ethics. Berkley: University of California Press. Ross WD (ed.) (1908/1952) The Works of Aristotle,12 Volumes. Oxford: Oxford University Press. Ross WD (1980) The Nicomachean Ethics. Oxford: Oxford University Press. Sidgwick H (1907) Methods of Ethics, 7th edn. London: Macmillan. Solomons R (1992) Ethics and Excellence. New York: Oxford University Press.

Relevant Websites http://www.perseus.tufts.edu – The Perseus project. http://etext.virginia.edu/ – The University of Virginia electronic text centre. http://plato.stanford.edu/entries/aristotle-ethics/ – Aristotle’s Ethics (Stanford Encyclopedia of Philosophy).

Biographical Sketch Christopher Megone joined the Department of Philosophy at the University of Leeds in 1991, after working at York for 8 years. He is currently Professor of Interdisciplinary Applied Ethics. He has been Director of the Centre for InterDisciplinary Ethics Applied since its inception in 2005, fol­ lowing a successful £3 million bid for a new Centre of Excellence. He is also Director of the MA in Health Care Ethics and of a new Online MA in Applied and Professional Ethics. Christopher studied Classics at Oxford where he went on to do a BPhil and a DPhil in Philosophy. He is a member of the Royal Academy of Engineering’s Ethics Committee and the Executive of the Society for Applied Philosophy. His research is focused on medical ethics and business and professional ethics, moral psychology, and Aristotelian ethics. He has published widely on Aristotle and contemporary ethics and political phi­ losophy, often approaching ethical issues from a neoAristotelian perspective. In 2006 he was awarded a prestigious National Teaching Fellowship, thereby becoming a lifelong member of the Association of NTFs.

Arts, The D E W Fenner, University of North Florida, Jacksonville, FL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Culture A term specifying the shared collection or pattern by members of a community of behaviors,

Introduction There are some who believe that ethical issues arising within the arts is a recent phenomenon – that it is some­ thing we have only just experienced since the nineteenth century. However, Plato was writing on ethics and the arts four centuries before the common era. The intersec­ tion, and sometimes the collision, of ethics and the arts is decidedly a very old phenomenon, and the reason that it has been the focus of what we will see here to be a great deal of consideration and ink is that the issues that have arisen during the past two and a half millennia have been in many cases large and serious. Some issues have only to do with works of art themselves, or with artists and, to use the popular expression, the ‘artworld,’ but many others have had larger import. They speak to the existence, identity, advancement, and diminishment of societies, nations, and cultures. In this article, we explore a wide range of these issues. The article is divided into two major sections: The first concerns those ethical issues and themes that relate to events we would like to avoid, that we believe entail harm, and that are in some respect or to some degree immoral, and the second concerns those ethical issues and themes that we would like to encourage, that promote morality, or that are themselves instances of the morally positive.

The Bad Physical Harm Let us begin with ethical issues that have to do with the most obvious sort of harm – physical. Perhaps no artist more than Chris Burden exemplifies artists who are phy­ sically harmed in the creation and/or exhibition of their works of art. On November 19, 1971, in a performance titled ‘Shoot,’ Burden had a friend shoot him in his upper left arm. The friend used a .22-caliber rifle and stood at a distance from Burden similar to that of a firing squad. In 1973, Burden stood in the doorway of his Venice, California, studio and placed two live electrical wires to

beliefs, attitudes, values, institutions, symbology, iconography, art, and artifactual style.

his chest. He would have been electrocuted – and not merely badly burned – had the wires not crossed and exploded. The work was called ‘Doorway to Heaven.’ In 1974, in a work titled ‘Trans Fixed,’ Burden had nails driven through the palms of his hands and into the rear part of the roof of a Volkswagen Beetle, as if he was being crucified. The car was pushed from its garage out into the street, and it stayed there, engine revving, for 2 minutes before it was brought back into the garage and Burden was freed. Burden is not the only artist whose physical harm figures into the creation of his art, but he is certainly one of the most celebrated. Consider the complement: physical harm to audience members. The extreme example must be ‘snuff films,’ in which a person or persons are actually and intentionally killed, and the event is filmed. Snuff films – if they even exist – are so extreme that their moral status is not in question, but there are a range of other works of art in which audience members may be physically harmed. There was once a work of art in which one sat in a chair and faced a gun that would fire; it was reputed to have a live bullet in its chamber once in a great many times. Whether this, like snuff films, is merely a legend or not matters less than that it was thought of and is as clear an example of an audience member being hurt by an artwork as any might be. Granted that artists and audience members exercise their free will in choosing to participate in the creation or exhibition of these works of art, one may find that the default ethical position is one of respecting their auton­ omy. However, in parallel with the fact that at times the government intervenes in the full exercise of personal autonomy by asking us to wear safety belts and keep our infants in car seats is the fact that it is possible that at times we may believe that individuals can commit an immoral act even when they are in full possession of their moral agency and where the action involves or produces no harm to anyone other than the individual him- or herself. If one is a ‘moral libertarian,’ such times may not exist. However, the argument could be made that we are right to suspect the moral competency of artists and audience members who participate in artworks that result in

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physical harm to themselves. Of course, the moral gray­ ness merely descends again if we believe, as most believe is the case with Chris Burden, that the artist or audience member is in full possession of his or her moral competency. Some critics, professional and otherwise, simply argue that snuff films, and works on a continuum with snuff films, are not art. They argue that these sorts of objects and events do not fulfill the criteria for what constitutes works of art, and because they do not, it is inappropriate to consider them protected in the same way we com­ monly see artworks as protected – as items covered by the right of freedom of expression. However, this is a slippery slope. Theories of what constitutes art, or works of art, from the past 50 years take very seriously the need to capture what those who make art, who show art, who experience art, and who talk about art take to be art. In a substantive way, current definitions of art are as socio­ logical as they are philosophical; gone are the days when a body of academicians could dictate the nature of art and expect artists and the rest of the ‘artworld’ to comply. Snuff films may well not be art, but the work of Chris Burden is widely accepted as art, and so are many other works that are on the continuum between Burden’s work and snuff films. Psychological Harm Much more common than works of art that produce physical harm are works of art that produce, or allegedly produce, psychological harm. The scope here is wide indeed. However, the first question has to be, What con­ stitutes psychological harm? Twentieth-century art is known for offering challenges – challenges to the notion of what makes art art, social challenges, and religious challenges. Surely some of these challenges will offend because all of them are designed to be provocative. However, offense is not psychological harm. It is not the offense that should concern us morally; rather, it is what­ ever real harm may come from the offense. When at the 2004 Super Bowl Janet Jackson experienced a ‘wardrobe malfunction,’ many people took offense. However, it is unclear what real harm was done. That is, although inap­ propriate and unseemly, does the revelation of a woman’s breast to a crowd that includes those to whom it may be inappropriate to have such exposure constitute psycholo­ gical harm? Consider another example. Consider a case in which a work of art intentionally includes denigration of a racial minority. All people of conscience may well be offended at exposure to such a work, but does it constitute psychological harm? What if, as well may be the case, this work of art contributes to an increase in attitudes that are essentially divisive, and what if that increase contributes to racial violence or even simply to increased economic inequities? What if, to make the point, this work of art

contributes either to the diminishment of a sense of selfesteem by the minority group or to a situation in which members of the majority group feel freer to contribute to the diminishment of self-esteem of the minority group? Here is real harm, and whereas some of the harm described is tangible and overt, some is psychological in nature. The difficult cases are, as is almost always the case, those that lie toward the center. When groups protest the music of Marilyn Manson and Ozzy Osbourne and point to children who have hurt themselves as a result (or alleged result) of listening to this music, do we con­ clude that their music is psychological harmful? When upon seeing the acts of violence in Stanley Kubrick’s A Clockwork Orange, William Friedkin’s The Exorcist, or even Francisco Goya’s Saturn Devouring His Son, a child cannot sleep for a number of nights, does this constitute psychological harm? One might note that the pattern here has to do with psychological harm to children, and one may conclude that we complete our moral duty by blocking exposure of potentially harmful thoughts and images from children. However, how do we answer the claim that John Hinckley attempted to assassinate Ronald Reagan because he was infatuated by the Jodie Foster character in Martin Scorsese’s Taxi Driver? Hinckley was clearly an adult, albeit disturbed. One may try to answer that works of art that have the potential to psychologically harm should be blocked from children and from the psychologically unbalanced, but how do we know, for each individual visit­ ing a gallery, a theater, or a cinema, whether the individual will be unduly psychologically influenced by something he or she sees or hears? Determining where to draw the line is difficult, and given the moral principle of respect of autonomy on the part of audience members and freedom of expression rights on the part of artists, we are loathe to err on the side of blocking more than we feel clearly justified to block. The problem is amplified when we recognize that what may cause psychological harm to some will not to others, especially when the two groups live at different times, in different places, or have different exposure levels. For example, Tim Burton’s movie, Sleepy Hollow, would have been too much for me to handle at age 11 years, but my son had no problem with it in the slightest. We have focused on violence for examples here, but in western Europe exposure to sexual themes is much less controlled than it is in the United States; what might confuse U.S. children may have no impact on British children. Given these observations, one might conclude that it is best that each community should set its own exposure standards, using the best judgments of those in that community concerning what might produce psycho­ logical harm on its members. Of course, media distribution does not easily respect such borders, and the

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trend is toward increasingly greater access. Relativized standards only work where containment or at least cir­ cumscription is possible, and this is becoming less available.

Social Harm Nation-states are still able to some degree provide con­ tainment. To some degree, China has been successful in containing itself culturally. Those who believe this is a twenty-first-century phenomenon would be mistaken. China’s cultural containment took its strongest form under Mao Tse-tung. Mao started out with a broad tol­ erance for artistic expression. His original policy was based on ‘‘let[ting] a hundred flowers bloom,’’ and in his 1957 speech, ‘On Correct Handling of Contradictions among the People,’ Mao rejected the Soviet denial of contradictions in socialist society, believing that conflict was both inevitable and healthy. This was not to last. In 1966, Mao began his ‘Cultural Revolution,’ the aim of which was to wipe out the last remnants of bourgeois ideals and practices – to recapture the revolutionary zeal of early Chinese communism. Today we still see, although to a lesser extent than in the mid-twentieth century, the influence of cultural con­ tainment. China claims that because of such containment, the Chinese enjoy a culture that is both more ethically and more culturally stable. It is more ethically stable because of the lack of influences – works of art among them – that contribute negatively to the country’s moral tone. It is more culturally stable because as external influences are minimized, a country’s own culture may be better maintained. The argument goes that through cultural containment – of whatever degree – the elements that make up social cohesion are fostered. This is not a new argument; it was made first in a similar form by Plato (whose views are considered more in-depth later). The matter of social harm as a result of art creation/ exhibition is only complicated when we include the harm (or alleged harm) that is done when the charge of religious sacrilege is leveled. The work of Chris Ofili was at the center of a major controversy surrounding the Brooklyn Art Museum’s exhibition of a show titled Sensation. Ofili created an 8 � 6 ft painting called The Holy Virgin Mary. The depiction of Mary is surrounded by very small pic­ tures of genitalia, and her breast is three-dimensionally constructed of elephant dung. Then-mayor Rudy Giuliani called Ofili’s work ‘‘sick’’ and ‘‘blasphemous.’’ Several years earlier, Andres Serrano suspended a plastic crucifix in a jar of urine and photographed it. The photo­ graph is called PissChrist; the work was found by many people to be irreverent and sacrilegious. Does profaning the sacred constitute social harm? Even if it does not, is it still immoral?

Harm to Works of Art, the Artworld, and/or the Artist (qua Artist) In 1981, Richard Serra installed a large piece of slightly curved metal – raw steel, 120 ft long by 12 ft high – in Federal Plaza in New York City. In 1989, it was removed, cut into pieces, and hauled off to a scrapyard. Tilted Arc’s removal ignited a great deal of protest, the loudest voice being Serra’s. Serra’s claim was that those who engineered its removal had destroyed a work of art and they had no right, despite the fact that the work was commissioned, to destroy a (recognized and established) work of art. The work was created to be site specific, and removing it – even had this not entailed scrapping it – constituted its destruction. Ted Turner owns the rights to hundreds of films. At the end of the twentieth century, Turner released some black-and-white films after they had been subjected to a colorization process. Turner was an avid proponent of colorization, but just as avid a proponent of the immor­ ality of colorizing films was Woody Allen. Allen argued forcefully that the aesthetic merits of great films were compromised, that the director’s original vision of the film was destroyed, in colorizing films. Whereas Turner’s argument focused on making certain great films accessible to audiences uncomfortable with black­ and-white films, Allen’s argument was about the integrity of the original work of art. Although some films – the first colorized film Turner released was Norman McLeod’s 1937 Topper (with Cary Grant) – may not fare too horribly if colorized well (the first films were not colorized well), many other films rely on being black and white for their aesthetic power. Orson Welles’ Citizen Kane is probably the best example, with Michael Curtiz’s Casablanca and John Huston’s Maltese Falcon certainly members of the set. The point is emphasized when, in an age of color films, we see directors preferring to work in a black-and-white medium, as Allen did with Manhattan and Steven Spielberg did with Schindler’s List (Spielberg portrayed a single element, a little girl’s red coat, in color; the visual significance of that decision would be lost were the film colorized). Is it immoral to colorize a film? Is Allen’s claim similar to Serra’s – that a work of art is thus destroyed? Consider a different set of ethical difficulties focused on art objects themselves. In the early twentieth century, Han van Meegeren painted a series of works in the style of Jan Vermeer. For many years, van Meegeren’s paint­ ings were received by the artworld as Vermeers. (He forged the paintings of others, too, but the forged Vermeers have been the primary focus of discussion.) Van Meegeren did not copy Vermeer’s work; rather, he worked in its style and was therefore able to pass off the forged Vermeers without concern that copied originals would surface to expose him. Surely what van Meegeren did was fraud; he duped art collectors out of several

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million dollars. However, is there an artistic dimension to his immorality? After all, the works he created were beautiful; they provided their viewers significant aesthetic pleasure. Also, after all, how different – baring the obvious ethical problem of financial and provenancial fraud – is the situation from that of so many millions of college students who hang Van Gogh’s Sunflowers on their dormi­ tory walls? The value of Van Gogh posters is that they bring aesthetic pleasure to their viewers; one can only assume that the pleasure would be greater were the object on the wall a well-executed oil-on-canvas copy. If the copy sold as a copy and for $100, no one would find this an ethical problem. However, if the copy were offered as the original – that is, if the copy were not a copy but, rather, a fake – and the price were in the many thousands of dollars, a fraud is in the offing. Fakes and forgeries are immoral, but what is interesting is that it is not – at least one could argue that it is not – their aesthetic features that render them immoral. It is the intentions of the faker or the forger to pass off something of his or her own as something of another that makes it immoral. To limit this immorality to material gain and property rights is to think too small. What the faker and forger have stolen, it may be argued, is the original vision, the novelty, the genius of the original creator. (This, of course, harks back to the previous discussion concerning colorizing films.) Consider a third kind of example in this category: modification. Most of us believe that modifying a com­ pleted work of art – even at the hands of the artist him- or herself – is wrong. Should Leonardo himself come back from the grave, we would prevent him from setting a single new brush stroke on the Mona Lisa. We would certainly prevent anyone else from doing this. Whether this belief is a good one is a matter of debate, of course, but we do not seem to have a problem, in general, with restoration. In 1972, a disturbed man shouting ‘‘I am Jesus Christ,’’ wielding a hammer, attacked Michelangelo’s Pieta`. This was not the first damage the Pieta` experienced; it was damaged while being moved in 1736. After both events, restoration efforts commenced. In 1736, the restoration work focused on creating a ‘fix’ that would be visually/aesthetically indistinguishable from Michelangelo’s original work. Many find this unproble­ matic, but the restoration situation is not that far afield from the situation in which one artist (e.g., in this case, the restorer) works hard to pass his work off as that of another. When repairs were made after the 1972 attack, pains were taken by the restorer to ensure that what changes were made to restore the Pieta` to a condition visually undetect­ able from its pre-1972 state could easily be detected under an ultraviolet light. Thus, both aesthetic and artistic proprieties were observed. Unfortunately, this is not always the case, and intuitions about modifications to works of art – even when the motives are the most

noble – are mixed. Incorporation of new threads into ancient tapestries is a case in point. Other examples focus on the removal of layers of varnish – applied by artists such as Rembrandt for protection – to reveal more vibrant colors beneath. Is it right to alter the finished work of an artist, even when we have reason to believe we are moving in the direction of his original vision? Could it be possible that Rembrandt meant Night Watch ultimately to be browner and darker than the pigments he used? On the other hand, is it possible Rembrandt would see, were he back from the grave, that Night Watch had gotten too brown and too dark? Accessing the intentions of an artist is always difficult, sometimes even when the artist is still alive and well. Using our speculations about artist intent to justify our motivations toward restoration and/or mod­ ification is dangerous. However, in cases in which the choice is restoration or destruction, what should we do? One last point in this section, and we will move on to a new topic. Serra believed that no one had the right to destroy Tilted Arc despite the fact that the work was commissioned and owned by someone other than himself. Also, despite the fact that the building was originally known to leak badly, it would be immoral for another architect to alter Frank Lloyd Wright’s design for the ceiling and roof of the Johnson Wax building. Johnson Wax owns the Johnson Wax building and it must get work done in that building, and the building must be leak-free to get work done. However, if Wright’s work is art, then the implementation of a redesign would be immoral. Why is this? If to have a right to something is first to have an interest in that thing, works of art do not have right because they do not have interests. If the works do not bear rights, and if the rights of the artist to possess and use works of art are sold, why can not the owner of a work of art do with it exactly what he or she pleases? Yet our intuitions are generally in the oppositive direction; why is this? If artists have sold their works, and the works do not possess rights, then why are the property rights of art owners limited? Why are they not morally permitted to treat the works exactly as they might treat any other piece of property they own? Yet we believe their rights are limited. Artworks, or at least great artworks, are morally protected as few other real property assets are. Censoring Art Censoring art – that is, preventing either the creation or the exhibition of works, forms, or styles of art – has a long history. I have mentioned twice now that it started with Plato, and I have discussed how it was employed by Mao. In the Republic, Plato argues against the value of art for its own sake. His argument focuses on access to truth that goes something like this: The world that we experience is made up of echoes of reality; reality, being immutable and eternal, exists beyond us; it is ‘extra-natural.’ To know

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reality is to employ reason to understand that the objects of the natural world are merely echoes. However, if natural objects are mere echoes, we move one more step away from reality through art – where art objects are mere echoes of echoes. Imitations of objects are themselves not real in the sense of being true and knowable. Plato com­ plemented this approach with another argument. When nation-state citizens watch performances or otherwise experience works of art that portray weakness or immor­ ality, they may be influenced to mimic these ignoble events and behaviors. If art is to have any value at all, it must enjoin us not toward the base but, rather, the ideal. It should celebrate the state, the citizenry, and the citizen’s virtues. It should lift us up. Individuals who watch Hamlet or Lear and at the end of the performance feel depressed should instead watch Henry V and feel courageous and patriotic. If art has value, this is it, says Plato. Leo Tolstoy had a slightly different approach. Tolstoy envisioned art as essentially a form of communication. The artist’s job is to evoke in herself some feeling once experienced and then to communicate it to her audience through some sensible medium. The artist seeks to ‘infect’ her audience with these feelings. Beyond the level of communication and the level of sincerity in the infec­ tiousness, the artist must also, according to Tolstoy, impart to her audience a true sense of the moral and religious attitudes of the society. She must communicate not only feelings but also those feelings as they accord with the moral and religious context in which the work is made. Art out of line with this aim should be controlled. There are likely as many theorists with arguments against censorship as there are in the opposite camp. Oscar Wilde is one of the best examples. Wilde and other artists of the nineteenth century, such as James Whistler, embraced a philosophy called ‘aestheticism,’ the view – characterized and celebrated by the phrase ‘‘art for art’s sake’’ – that the arts should be immune from moral or religious criticism. These artists – and theorists and critics who sympathized such as Jose´ Ortega y Gassett, Roger Fry, Clement Greenberg, Cleanth Brooks, Andre´ Levinson, and Heinrich Wolfflin – argued that true consideration of art should be limited to an appreciation of a work of art’s formal, aesthetic qualities – those qualities that are either immediately present to the senses of the audience member or dependent on them without bringing to that considera­ tion anything external to the work. In aesthetic theory and the history of art criticism, this has come to be known as formalism, the positive expression of the push against censorship on the basis of considerations outside the art itself. The difficulty with aestheticism and formalism is that they do not seem to fit the current times – the twentieth and twenty-first centuries – very cleanly. Although there are still formalist theorists at work, they are a small minority. This is because so many of the artworks during

the past century only make sense or only have value (or much value) if they are experienced with an understand­ ing of their contexts. Little of Marcel Duchamp’s readymades, Andy Warhol’s pop art, and contemporary ‘Young British Artist’ Damien Hirst’s work, when experi­ enced only for their face aesthetic features, result in highquality experiences. One might even be so bold as to say this about the works for which Pablo Picasso is famous – given the oft-made claim that modern art truly began when Picasso abandoned the mandate that art be beautiful when he debuted Les Demoiselles d’Avignon in 1907. Currently, the case against considering externalities to and contextual aspects of works of art is the more difficult one to make, and as such, censorship when it is advanced on the grounds of these external considerations may seem on its face justifiable. If this is true – if occasionally the case for censoring works of art that result in physical, psychological, or social harm is warranted – the first question must be about the criteria on which a work is appropriately censored, and the second question must be who has the right to do the censoring. We previously explored the first question, and we began to explore the second. If community standards – as a unit smaller than a culture, a nation, or a society – are to be appealed to, who in that community has the right to represent those standards? Local politicians? (There are surely cases of federal legislators who questioned and prevented National Endowment for the Arts funding for certain art projects.) Local churches, synagogues, and mosques? (Sacrilege is an offense frequently appealed to in criticizing some works.) Civic groups, home owners associations, community clubs? Dealing in this level of detail may seem fussy, but the pragmatic reality is that a community does not have a clear agency whose job it is to monitor moral precepts, and the further reality is that it is remarkably difficult to divorce such representation either from personal views or from the views of the group one is representing (e.g., religious views). Should we be lucky enough to derive an answer to who has the right to censor, we still must face the question about who works may be censored from. Previously, we mentioned children, but the scope quickly increased to include anyone who did not exercise full moral agency (e.g., the psychologically damaged). Let us take up two final matters about censorship before moving on. First, to what extent should works of art that in essence redefine the very notion of ‘art’ be permitted? There are many people who believe that the bisected animals displayed as Hirst’s artwork are not art, as there are people who think the same of Duchamp’s urinal (Fountain) or snow shovel (In Advance of a Broken Arm) or Warhol’s Brillo Pad Boxes. They simply will not accept these as art. The same was surely true, a number of years ago, regarding Picasso, and no doubt there were many who upon seeing the work of Wassily Kandinsky,

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Joan Miro, Henri Matisse, Berthe Morisot, and Mark Rothko felt the same. Today, the impressionists, the expressionists, and the surrealists are clearly a part of the history of art, but Dada, Pop, and the contemporary ‘YBA’ art is still, even now, under debate. The claim that something created and presented by an artist as art is not art is a powerful critical claim, and many artists in this century and the last have virtually courted receipt of this judgment. Should these works, or some of them, be cen­ sored on the grounds that they corrupt our very understanding of what constitutes art? Second, if one finds a critic whose tastes match hers, and she takes his advice for the investment of her atten­ tion to works of art, the chances are better than they otherwise would be that she will enjoy more art experi­ ences, more occasions when she reaps the rewards of being an audience member. In short, she will waste less of her time on artworks that she may not find enjoyable or rewarding. It is possible to think of situations such as this as on the censorship continuum – that as with other efforts described previously, art critics, by publishing their opi­ nions, may be exercising a subtle form of censorship. The point here is not to push the definition of ‘censorship’ past the edge of all usefulness or meaning; the point is to show the great breadth that must be encountered when con­ sidering the censoring of art.

The Good Ethics and the arts is not only about the avoidance of ‘the bad.’ It is also about advancement of ‘the good.’ That is, there are occasions when art can bring about, or assist in bringing about, ethical outcomes or encourage ethical attitudes and dispositions. In this section, we consider three sets of these occasions. Moral Illumination In most works of art that have a narrative quality, whether or not they actually offer a narrative, there are usually agents that move the causal structure of the narrative forward. In a regular story, it is common to have protagonists and perhaps antagonists who, as they discover, decide, and act, move the story forward. This is certainly true in literature, film, opera, and some dance, but it can also be true in the cases of paintings, photographs, and prints when artworks of these forms have a narrative quality – when an audience member understands them to be a captured moment in a story. On these occasions, it is not uncommon to find oneself identifying with one of these agents. When watching Ingmar Bergman’s Fanny and Alexander, one may see oneself as Alexander, Alexander’s father or uncle, or even Alexander’s stepfather. What identification is

made is dependent on the audience member’s state of mind, age, experience, sense of self, and so forth. If one is young and understands himself as trying to find his way, trying to discover what life is about, he may see himself as Alexander. If one is at an age at which the end of life is within view and the focus is on selfreflection, he may identify with Alexander’s father. If, however, one is open to exploring his dark side, his possession of traits he may not be proud of, an identi­ fication may be made with Alexander’s stepfather, ‘the Bishop.’ Through the personal identification that can be made when an audience member pours herself into the mold of a character in a work of art, exploration of one’s self can take place and can be revelatory. This explora­ tion is almost always morally positive – though it is important to add ‘almost’ because the positive identifi­ cation with some characters can encourage immoral thoughts, such as when one positively identifies with Alex in A Clockwork Orange, with Travis in Taxi Driver, or with Don Corleone in The Godfather. Wicked char­ acters are sometimes the most fascinating, but as long as one can pull oneself back out, the reflection one can experience upon positive identification with a ‘bad guy’ can be morally positive, too. There are, of course, other sorts of identification beyond merely personal. One can identify with the social content of a work of art (e.g., appreciating the exploration of class in any one of Jane Austen’s works or those of Evelyn Waugh or Charles Dickens), with the nationalist aspects (e.g., in the exploration of the iconic nature of a Jasper Johns’ American flag or the iconology of the open­ ing of the 2008 Beijing Olympics), with the religious character (e.g., with the vast majority of European and Mid-Eastern works from the Middle Ages or in connec­ tion with Mel Gibson’s The Passion of the Christ), with the ethnic or racial aspects (consider the works of contem­ porary artist Adrian Piper, Langston Hughes, or Billie Holiday), or with sex and gender (e.g., in the work of Frida Kahlo, Virginia Woolf, or Judy Chicago). Almost every time we engage with a greater context of a work of art, examining its relationships to larger themes that hold meaning for us, the result is a richer – at least more cognitively richer – experience. Again, one must add ‘almost.’ Leni Riefenstahl’s Triumph of the Will, given the strength of the case it offers for German National Socialism in the early days of Nazism, has given contex­ tualist aestheticians problems. Many find the film beautiful and inspiring, yet its subject matter was, of course, to reveal itself as extraordinary evil. Fortunately, this is the exception and not the rule. The rule is that through considering the wider contexts, the audience member experiences moral illumination, insight that on many occasions deepens the ethical outlook and perspec­ tives of the audience member.

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Social Benefit ‘Culture’ is a term specifying (tightly or loosely) the shared collection or pattern by members of a community of behaviors, beliefs, attitudes, values, institutions, sym­ bology, iconography, art, and artifactual style. When one thinks of Mexico, one may think of stepped pyramidal temples in the Yucatan; the huge stone Aztec calendar; ‘Folklorico’ dances based on pre-Columbian themes; the art of Diego Rivera and Kahlo; and tamales, tortillas, chiles, and the best cerveza in North America. Mexico has a fairly identifiable culture, but within Mexico one can find strong subcultures, the strongest perhaps being that of the Maya. The Maya are alive and well today, and many instantly recognize them by their very brightly colored clothes. The Maya culture dates back 4000 years, and most of us know that it was the Maya who developed the notion of ‘zero.’ The Maya of today still maintain themselves as communities, and one of the chief reasons for this is the preservation of their cultural ele­ ments. To the extent to which artistic and aesthetic expressions are an integral part of a society’s culture, the Maya are able to distinguish themselves from their neigh­ bors, from non-Mayan Mexicans, because they maintain these expressions through reinforcing the patterns of their creation. Art is a central part of the maintenance of culture, and culture is a chief means of self-identification. Cultural and national identity reinforcement is prevalent among many different art forms: for instance, Richard Wagner’s operas and Germany, mariachi and Mexico, and Frank Lloyd Wright and America. Cultures per se have permeable boundaries. Nationstates try not to, and as discussed previously, the identity of a nation-state can be fostered and strengthened through controls on the influences exerted by the arts. It is far less likely that a nation will both fall and dissolve if the identity of the populace as members of that nation remain intact. Tangible expressions of that identity can be found in that nation’s arts – in the artistic styles and products but also in the artistic forms and media. The deeper and richer those tangible expressions are, the less likely they will soon disappear. Tibet is a case in point. Although Tibet has been under Chinese rule since the late 1950s, its cultural expressions are unique enough and ingrained enough that it is easy for many Westerners to determine from looking at aesthetic expressions such as modes of dress and domicile decoration whether a picture depicts China (per se) or Tibet. Mao’s cultural revolution did not take hold in Tibet as it did in China, and in some measure because of the endurance of these cultural expressions, there are many who, recognizing the endurance of a national identity, campaign for a return to Tibetan auton­ omy and a return to the leadership of the Dalai Lama. To the extent to which the preservation of a nationalist identity is a good thing, and to the extent to which the

arts – and similar cultural expressions – contribute to this, nationalist art is a good thing. Many nations believe this, and they invest accordingly. In 1992, The New York Times reported that the Dutch state was trying to rid itself of more than 200 000 works of art. These works had been collected from the 1950s to the 1980s in programs in which the Dutch government pur­ chased the hitherto unsold works of Dutch artists. The government could not sell the works because this would flood the market. Neither would the government destroy the works, at least not until such time as all other options had been attempted, because this would suggest that the works had no value. For the same reason, the government would not simply give the works away. Instead, the Dutch state was trying to find homes for their vast collection in schools, hospitals, clinics, police stations, government buildings, and the like. Although governments are perhaps qualified to judge the economic and social worth of objects, theirs is an inescapably controversial task in the assessment of the aesthetic and cultural merits of artwork. The United States’ National Endowment for the Arts is charged with judging, at least partly on aesthetic or cultural grounds, the relative worth of pro­ jects brought to its attention for possible governmental funding. Nations fund the creation of art when they believe that such creation may have the effect of contri­ buting both to national identity and to the history of art in the world. They offer strong arguments that taxpayerfunded subsidy of art should be disallowed on the grounds that society will find a way to pay for the art it wants, but nations such as The Netherlands find the greater value to be in continuing their provision of funds for the arts on a national scale. Ethical Edification and Character Building In the beginning of the twenty-first century, there has been much interest in the relationship between ethics and the arts. There are some who argue in a formalist vein about the importance of the separation of the two realms, but the majority of conversants seem to be arguing for the opposite – for the thesis that ethical aims can be advanced through the arts. In her work, Marcia Muelder Eaton explores the ways in which ethical dilemmas and aesthetic dilemmas are similar and different. Noel Carroll argues for a position he calls ‘moderate moralism,’ the position that in some cases, moral defects in a work of art count as aesthetic defects, and sometimes moral virtues in works can also be aesthetic virtues of those works. Berys Gaut argues for a position that he calls ‘ethicism’; he argues that if a work of art recommends a response in us that is morally suspect, the work is, to that extent, less aesthetically good than if a work recommends a response in us of which we can be proud. The

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work’s value is diminished in the former case not because it recommends something unmerited but, rather, because in catching ourselves and not following the recommendation, the work has failed in one of its aims. This is an aesthetic failure of the work. It strikes some that aesthetic aspects of experiences can enhance their functionality. A car with sleek lines is fun to drive, an attractive house is nice to live in, and a beautiful church/synagogue/mosque/temple is won­ derful to worship in. When a work of art has an ethical dimension, or can be seen to have such a dimension, then to the extent to which it positively inspires an ethical reaction, to the extent to which it promotes ethical attitudes and actions, it has a positive influence. Although some may argue that such functions of parti­ cular works of art have nothing to do with the character of these works as art, the burden of proof is on them to demonstrate this. The trajectory of twentieth- and twenty-first-century art goes toward consideration of greater contexts, and as we find increasingly comfortable the inclusion of new art forms that are essentially func­ tional – architecture is clearly the best example (because architecture without purpose is simply sculpture) – we also find new intersections between art and the promo­ tion of ethics.

See also: Built Environment, Ethics and the; Censorship; Intellectual Property Rights; Literature and Ethics; Sexual Content in Films and Television; Violence in Films and Television.

Further Reading Carroll N (2000) Art and ethical criticism: An overview of recent directions of research. Ethics 110(2): 350–387. Devereaux M (1998) Beauty and evil: The case of Leni Riefentahl’s Triumph of the Will. In: Levinson J (ed.) Aesthetics and Ethics: Essays at the Intersection, pp. 227–256. Cambridge, UK: Cambridge University Press. Eaton MM (1989) Aesthetics and the Good Life. Cranbury, NJ: Associated University Presses. Eaton MM (1992) Integrating the aesthetic and the moral. Philosophical Studies 67(3): 219–240. Fenner D (ed.) (1995) Ethics and the Arts: An Anthology. New York: Garland Press. Gaut B (1998) The ethical criticism of art. In: Levinson J (ed.) Aesthetics and Ethics: Essays at the Intersection, pp. 182–203. Cambridge, UK: Cambridge University Press. Goldman AH (1990) Aesthetic versus moral evaluations. Philosophy and Phenomenological Research 50(4): 715–730. Levinson J (ed.) (1998) Aesthetics and Ethics: Essays at the Intersection. Cambridge, UK: Cambridge University Press. Sagoff M (1978) On restoring and reproducing art. Journal of Philosophy 75(9): 453–470. Shusterman R (1984) Aesthetic censorship: Censoring art for art’s sake. Journal of Aesthetics and Art Criticism 43(2): 171–180. Wimsatt WK and Brooks C (1969) Literary Criticism: A Short History, pp. 475–498. New York: Knopf. Young JO (1988) A defense of colourization. British Journal of Aesthetics 28(4): 368–372.

Biographical Sketch David E. W. Fenner received his Ph.D. in philosophy from the University of Miami in 1991. He joined the University of North Florida faculty in 1992. In 2006, he was appointed Dean of the Graduate School. He is author or editor of Ethics and the Arts, The Aesthetic Attitude, Ethics in Education, Introducing Aesthetics, and Art in Context.

Auditing Practices P Moizer, University of Leeds, Leeds, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Altruism The theory that the right action is that which produces the greatest benefit to others. Auditor An accountant or firm of accountants appointed by the directors on behalf of the stockholders of a corporation to verify that the accounts of the corporation present a fair view of its financial affairs. Audits are a legal requirement for only those companies registered with the Securities and Exchange Commission in the United States. Consequentialism A collective term for those moral theories that state that the judgment of the rightness or wrongness, goodness or badness of an action is solely dependent on the results the action produces. Corporation An organization recognized by law that allows people to associate together so that their labor

Introduction Auditing has a long history dating back to the time when certain individuals had so much wealth that they required others to manage it for them. It was inevitable that a prudent, wealthy person (the principal), who was unable directly to supervise how his or her property was being used, would arrange for some independent third party to check on the way that the steward (the agent) had employed those assets entrusted to him or her. The agent would normally be expected to give an account to the principal of how he or she had used the principal’s assets in a given period. In medieval and earlier times before the advent of financial statements, the agent would provide an oral account of what had taken place. This account would be listened to by individuals sufficiently familiar with the agent’s work to assess the accuracy of the statements made. Such a listener was called an auditor (from the Latin audire, meaning ‘to hear’). The central assumption of auditing is that individuals are to a significant extent egoists principally concerned with their own welfare. Hence, without some form of accountability, an agent would be expected to misuse the assets of the principal for his or her own benefit. The main purpose of an audit is therefore to convince the agent that if he or she is lazy or steals from the principal, such behavior will be discovered by the auditor and reported

and capital are combined in a single venture. In law, a corporation is a single entity independent of its owners, which has the right to buy property, to sue or be sued without its members being held liable, and to enter into contracts. Deontology The theory that duty is the basis of morality. Some acts are therefore morally obligatory regardless of their consequences. Economic rationality The theory that individuals are motivated by their own self-interest expressed in terms of maximizing their economic wealth, as measured by the present cash equivalent of the future cash flows that will be received by the individual, while minimizing the risks attached to those future cash flows. Egoism The theory that the pursuit of one’s own welfare is the highest good.

back to the principal. Some legal sanction would then follow, and the agent would be punished accordingly. In medieval times in England, the lord of the manor was no doubt reassured by the knowledge that a reeve (the manorial steward who supervised the daily affairs of the manor) who had been fraudulent or who had failed to prepare an account would be tried by the manorial court and severely punished. Central to the concept of an audit is therefore the notion of deterrence. The expectation that an audit is to take place should deter a person from being either lazy or dishonest. However, within this apparently simple concept lies the conundrum that forms the basis of this article. If agents cannot be trusted to act in the best interest of their principals, why should auditors be trusted, given that auditors are themselves the agents of the same principals? The problem is pithily captured in the famous quotation from the Satires of Juvenal: ‘‘Quis custodiet ipsos custodes?’’ (‘‘Who is to guard the guards, themselves?’’).

Auditors and Corporations In the modern world, the advent of the corporation has made life considerably more difficult for auditors because the notion of a principal is no longer clear-cut. There are many types of corporations, and it is not the purpose of

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this article to examine them all. Instead, it focuses on the key economic institution of the business corporation, which is also known as a joint-stock company because it is jointly owned by several persons who receive shares of stock in exchange for an investment of money in the business. One of the most important attributes of a jointstock company is the fact that the company is a person in its own right, being able to own assets and be responsible for its own liabilities. Hence, the owners’ liability to the debts of the company is limited to any unpaid share capital. The concept of the limited liability company arose in the middle of the nineteenth century and was accompanied by the need to protect creditors from frau­ dulent entrepreneurs who could use the protection afforded by limited liability to avoid paying their debts. A series of court cases established that the main defense for creditors was the notion that cash could not be paid from a corporation to its stockholders (as a dividend) unless the corporation had made sufficient profits (reven­ ues less expenses) to cover the dividend. The requirement to determine profits led to the need to prepare annual financial statements setting out the profit made in the year. The role of the auditor was therefore changed from one of listening to an agent’s explanation to that of providing an opinion on the truthfulness of the agent’s financial statements in the form of a written report expressing the auditor’s opinion on the truth and fairness of those financial statements. In addition, the auditor of the modern corporation has a problem not encountered by his or her medieval coun­ terpart – namely, who governs the corporation. Legally, the stockholders own the shares, entitling them to vote at annual general meetings on the appointment of both the directors of the corporation and its auditors and on the size of the audit fee. Nevertheless, in practice the direc­ tors of a corporation prepare the resolutions to be voted upon at annual general meetings and it is relatively rare for investors to affect the passage of such resolutions. The cause of this state of affairs is the fact that the majority of shares are held by institutions run by professional fund managers who have little incentive to become involved in the running of a corporation because their own perfor­ mance is judged on how the share prices of their investments perform, not on how well they manage those investments. Given the power of directors to influ­ ence their appointment and remuneration levels, it is not surprising that when audit partners talk about their ‘client,’ they are invariably referring to the board of directors (i.e., the agent), not their real principals – the stockholders. Attempts at strengthening the position of auditors by increasing the role of non-executive directors in audit committees have theoretically improved the position of auditors, but it is still the case that the execu­ tive directors appear in control and financial scandals such as Enron in 2001 and the banks in 2008 suggest

that non-executive directors appear to make little differ­ ence. Hence, modern auditors are effectively hired and their fees determined by the firm’s directors, the people on whom they are reporting. There is therefore a direct economic incentive for auditors not to find or tell the truth because to do so could jeopardize their future income in the form of audit fees and other ancillary fees derived from the corporation. In addition, there are other behavioral reasons (personal loyalties and friendships with the firm’s managers) that could induce auditors not to tell the truth. This article explores the ethical motiva­ tions of auditors and the pressures on their personal integrity.

The Role of the Corporate Auditor The main role of the modern company auditor is to express an opinion on whether a corporation’s financial statements present a fair view of the financial position and operations of the company. The audited financial state­ ments are therefore the result of a joint process using inputs supplied by both the management of the corpora­ tion and the auditor. Management produces draft financial statements, and the auditor gathers evidence that either substantiates or contradicts the information contained in them. As indicated previously, the principals to whom the auditor is addressing his or her opinion are the current stockholders, although it could be said that the consumers of the audit service are whoever reads the audited finan­ cial statements with a view to making some decision in relation to the corporation. As far as readers of a set of audited financial statements are concerned, the service that the auditor provides is the independent verification of the credibility of the information contained in a com­ pany’s financial statements. Hence, the value of the auditor’s service can be measured by the increased con­ fidence felt by readers when using audited accounts as opposed to unaudited ones. An audit improves the quality of the information presented in the financial statements by reducing two possible distortions, noise and bias. Noise refers to the unintentional errors that occur in the finan­ cial reporting process. The auditor can reduce noise in two ways: by discovering errors during the normal routine of audit testing and by increasing the standard of care adopted by employees who are conscious that their work will be subject to independent scrutiny. Bias refers to the creation of intentional errors by management. Bias can be introduced either by creating deliberate mistakes (e.g., valuing an obsolete inventory product as if it were part of the current range) or by the choice of accounting methods that do not accord with generally accepted accounting principles (e.g., defining the date on which a sale took place to be the date on which the sales order was

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received rather than the date on which the order was delivered to the customer). By reducing noise and bias, the auditor is helping to reduce the uncertainty faced by users when interpreting accounting information.

The Choices That Auditors Have to Make The medieval audit included a painstaking review of every transaction. Entries were examined and traced back to underlying documents; ledger balances were checked and compared to amounts on hand and other physical evidence. It was therefore possible for the auditor to check all the transactions of the agent and to check the existence and state of all the assets of the principal. However, the modern corporation is so large that it is impossible to check all the transactions and hence the auditor can examine only a small sample and verify only a small proportion of the assets and liabilities and reven­ ues and expenses of the corporation. Accordingly, the auditor has to choose the amount of audit work that he or she considers necessary. This choice is not a simple one. Broadly speaking, the more audit work that an audi­ tor undertakes, the greater the resulting confidence will be that the financial statements are not misstated in a material way. However, more audit work means more time and hence more cost. Occasionally, more audit work means more audit fee income, but it is more likely that the audit fee income is relatively fixed. Hence, the auditor has to decide how much audit work to undertake on the grounds of increased confidence and extra cost alone. Having done the audit, if the financial statements are materially misstated, then the auditor has to decide what to do about it. There are essentially two options. First, the auditor can decide to do nothing. The auditor, however, has the longer-term risk that the misstatement will even­ tually become public knowledge (e.g., as a result of a takeover by another company) with the attendant costs (e.g., legal claims for damages, higher insurance premiums, loss of fee income as a result of the adverse publicity, loss of personal prestige, and loss of self-esteem). Alternatively, the auditor can ask management to change the financial statements to correct the misstatement. This act alters the status quo and could alter some of the various courses of action that readers of the financial statements might take. As a consequence, the management of the company could respond favorably or unfavorably depending on how it believed that users of the financial statements would react. The auditor might therefore receive either praise or blame for bringing the misstatement to the attention of management. To a large extent, the attitude of the com­ pany management will depend on the nature of the misstatement. If the misstatement was caused by a genuine error, then the auditor is likely to receive praise for

discovering it, unless the effect of the alteration is to make management’s performance look significantly less favorable. However, if the misstatement was caused by some deliberate act on the part of corporate management, then the auditor would not expect a favorable reaction to his or her request to make good the misstatement. If com­ pany management refuses to change the financial statements, then the auditor has to decide whether or not to reveal the misstatement in the auditor’s report. The effects of this are that it will be more likely that another firm of auditors will be appointed and hence that the audit fee revenues from this particular client will disappear.

Judging the Quality of an Audit The value of the auditor’s report ultimately depends on the quality of the work performed, which depends on technical competence and independence. A ‘technically competent’ auditor has sufficient technical expertise to know what evidence needs to be collected and the skill to interpret it correctly. An ‘independent’ auditor ensures either that all significant errors and omissions are cor­ rected or that they are fully disclosed in the auditor’s report. In reality, the concepts of expertise and indepen­ dence can become interrelated. A dishonest auditor may choose to act in such a way that errors or omissions are not discovered – that is, to behave in a technically incom­ petent manner. Auditors can choose to act in a similar manner by studiously avoiding those areas where errors or omissions might be found. In cases of audit failure, where subse­ quent events have shown that the auditor’s report was incorrect, it is often difficult to decide whether the auditor made an honest mistake or whether he or she deliberately chose not to examine a particular area or to make some other technical error. To assess audit quality, consumers will have to judge not only the technical competence of the audit work done but also the independence of the auditor. To assess the technical competence of an audit requires access to the audit working papers and involves the reviewer assessing how well the work done compares with established pro­ fessional standards. However, readers of financial statements will rarely gain access to an auditor’s working papers, and so all the information they can obtain from the auditor is contained in the audit report attached to the financial statements. If the auditor is satisfied with the content of the financial statements, then an unqualified report results, but the problem for readers is that unqua­ lified audit reports are documents noted for their consistency across different audit firms. Reading an unqualified audit report conveys the impression that the audit work carried out complies with auditing standards and guidelines, but this is only at a general level and gives

216 Auditing Practices

no idea of the actual level of audit quality employed. Assessing independence is even more difficult because ultimately independence is an attitude of mind and depends on the ethical and moral beliefs of the individual audit partner. However, with much investigation it is theoretically possible to discover those visible aspects of the auditor–client management relationship that might deter the auditor from disclosing a breech by manage­ ment – for example, the length of time that the auditor partner has been involved with the company, the percen­ tage of the total fees of the firm accounted for by this one audit, and any family relationships between the auditor and client management. Apart from the formidable problems of acquiring the information necessary to make a judgment on the quality of a particular audit, the auditor will have to decide which areas to investigate and in how much depth, which tests are appropriate, how they are to be conducted, and which criteria should be used to evaluate their results. However, the determination of how much audit work is appropriate is very subjective, and the phrase ‘professional judgment’ is usually invoked to explain how this decision is made. Auditors have only a very approximate idea of the extent of the audit work necessary to provide a specific level of audit quality. The relationship between input (audit work) and output (audit confidence) is not sufficiently well understood to allow output audit quality to be read­ ily linked to input quality.

Ethical Influences on Auditor Decisions The starting point for the analysis comes from an old source, namely Plato’s Republic. In it, Socrates poses the following two questions: How would a man profit if he received gold and silver on the condition that he was to enslave the noblest part of him to the worst? Who can imagine that a man who has sold his son or daughter into slavery for money, especially if he sold them into the hands of fierce and evil men, would be the gainer, however large might be the sum which he received? (Plato, The Republic, Book IX)

The choices facing auditors can be simplified to two basic decisions: How much audit work to undertake and what to do if the financial statements are discovered to be materially misstated and the directors refuse to correct the misstatement. These choices will be made within whatever ethical framework by which the individual auditor chooses to live his or her life. In this article, two main systems of ethical thought are used to suggest how auditors might frame the choices that they have to make: consequentialism and deontology. In consequentialism, actions are judged in terms of the consequences that

result, whereas in deontology the view is taken that some acts are morally obligatory. The debate between consequentialists and deontolo­ gists has often centered on the doctrine of ‘the end justifies the means.’ The more usual consequentialist view is that there is no morally relevant distinction between means and ends, and hence any badness in the proposed means has to be balanced fairly against the expected goodness of the end. It is therefore possible to justify the use of evil means to achieve a good end, provided that the end is sufficiently good to outweigh the bad created by the means. The deontological view differs because it assumes that particular aspects of an action determine its moral quality absolutely. Thus, a proposed action could be analyzed in terms of its moral character, and a decision could be made whether it is morally obligatory or morally wrong on the basis of this analysis alone, without considering what else is involved. For example, consider a conscientious objector in Britain in World War II. He could adopt the deontological prin­ ciple that to kill is morally wrong, even though the consequences of all his fellow countrymen following that principle would be that Nazism would triumph.

Deontological Reasoning Deontological ethical reasoning relies on the creation of certain moral injunctions by which an individual can judge whether an action is morally right. Kant used the expression ‘categorical imperative’ to provide a test of what is an appropriate action. The best known version of the categorical imperative is, ‘‘Act only on that maxim which you can at the same time will to become a universal law.’’ This imperative does not indicate what makes an action right; it simply provides a way of seeing whether an action would be wrong – by considering what would happen if everyone acted like that. For Kant, an indivi­ dual should determine whether X is one’s duty by asking what if everyone were to do X and then having decided that X is one’s duty, an individual must do it, regardless of the consequences. These principles led Kant to maintain that it is never right to tell a lie: The obligation to be truthful cannot be limited by any expediency.

Consequentialism and Utilitarianism Consequentialism is an umbrella term for any of the moral theories that state that the rightness or wrongness, goodness or badness of an action is solely dependent on the results the action produces. The most famous version of consequentialism is utilitarianism. In its original for­ mulation, utilitarianism was very simple. As J. S. Mill wrote in 1863,

Auditing Practices 217 The creed which accepts as the foundation of morals, Utility or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (quoted in Flew, 1983: 361)

Thus, actions are to be judged by their consequences and the amount of pleasure everyone concerned derives from those consequences; the aim is the greatest happiness of the greatest number. Although utilitarianism is the most common example of consequentialism, other forms do exist. These replace the goal of utility of happiness with some other concept of the good that is to be realized or maximized. For example, one component of the good to be realized could be the nonexistence of extreme unfairness in the distribution of advantages among persons. One effect of replacing the goal of general happiness is that the good to be realized could be specific to an individual, determined by his or her own ideals and values. Hence, the special values of particular individuals will help to determine their own morality in the broad sense; their actions will be guided not only by what they want but also by the need to bring about whatever they see as being good.

Auditor Choices from the Perspectives of Deontology and Consequentialism In terms of auditor independence and reporting honestly, the ethical position adopted by an auditor will influence his or her decision. Thus, an auditor could follow the deontological principle that it is wrong to be dishonest. Such a person would therefore not write an audit opinion that he or she knows to be wrong, even if the conse­ quences of issuing an honest opinion are expected to be disastrous for a large number of people. In contrast, a consequentialist auditor will be con­ cerned about the consequences of issuing a truthful opinion and hence will have to wrestle with his or her conscience when making damaging revelations in the audit report. One of the most damaging reports that an auditor can issue is the so-called ‘going concern’ qualifi­ cation, in which the auditor casts doubt on the organization’s ability to continue as a viable entity because of its potential inability to meet its obligations to its creditors. One inevitable consequence of such an audit report is that the organization has a greater chance of going into bankruptcy. Faced with such an outcome, a consequentialist auditor may well conclude that it would be better to say nothing and produce a dishonest report and hope that circumstances will improve sufficiently for the firm to survive. The problem of going concern quali­ fications has been especially acute for banks, and auditors have been particularly loathe to describe a bank as not a going concern because to do so would cause its immediate

collapse as depositors rush to get their money out. However, the difficulty for the consequentialist auditor is that he or she will know that whenever a corporation fails, one of the first questions is, ‘‘Why did the auditors not qualify the audit report?’’ The conclusions of the ethical analysis are therefore ambiguous. Auditors who are concerned only with per­ forming the action that is morally obligatory (deontologists) will always report in an honest manner, but auditors who are concerned about the consequences of their actions may occasionally report in a dishonest way. To what extent auditors do ignore the consequences of their actions is impossible to answer because the data needed to answer the question are unobtainable. However, it has to be allowed that there are ethical reasons why on certain, admittedly rare, occasions an auditor may prefer to report dishonestly from entirely altruistic motives (i.e., taking account of the interests of others rather than the auditor’s own self-interest). Although the preceding discussion draws attention to the fact that consequentialist auditors may act dishonestly because they think that such a course of action will bring the greatest happiness to the greatest number, a more plausible assumption (or at least the assumption that the more cynical readers of audited financial statements are likely to make) is that auditors are consequential egoists, interested only in the effects on their own welfare. Therefore, the question that remains to be addressed is whether consequential egoists, concerned solely with their own self-interests, can be expected to behave in an independent manner and report truthfully what they find. Surprisingly, the answer is ‘yes’ in certain circumstances, and these are discussed next.

The Self-Interested Auditor (a Rational Economic Person) Perhaps the best model of a consequentialist egoist was developed by economists and termed by them ‘rational economic man’ or Homo economicus. A person is seen as being ‘rational’ in the sense that the person’s well-being is defined by his or her utility function (self-interest), which the rational person tries to optimize given perceived opportunities. That is, the individual seeks to attain very specific and predetermined goals with the greatest payoff and the least possible cost. These goals are usually con­ sidered to have two aspects: the maximization of an individual’s economic wealth – that is, the present value of the stream of future cash flows accruing to the indivi­ dual – and the minimization of the risk attached to these future cash flows. A rational economic person is also amoral, ignoring all social values unless adhering to them gives him or her utility. Hence, concepts of moral right and wrong do not

218 Auditing Practices

have any meaning for such a person, or alternatively an economic rational person lacks a belief in the absolute existence of any moral laws. In terms of an auditing service, if a set of financial statements are produced without an audit, a rational eco­ nomic reader will expect that the management of the organization will have biased the financial statements in some way to make the performance of the organization seem better than it actually is. There may also be errors present resulting from genuine mistakes as well as delib­ erate ones. Accordingly, the value of an audit can, in principle, be measured by how much confidence the reader of the audited financial statements has that they are free from the impact of both types of error. A rational economic auditor can therefore be expected to perform an audit that will reduce the chances of a successful negli­ gence suit to a level that is acceptable to the auditor. In the language of economics, the auditor should perform audit work until the cost of undertaking more work is equal to the benefit that the auditor derives because there is only a negligible chance of being successfully sued for damages. One further point needs to be considered that relates to the reputation of the auditor or audit firm. An eco­ nomic analysis of markets where reputations exist shows that those firms with a reputation for performing work of above average quality can earn higher fees than the aver­ age. In the audit context, if an audit firm has a reputation for performing above-average quality work, then readers will have more confidence in the financial statements. In a world of rational economic individuals who are wealth maximizers and risk minimizers, this increase in confi­ dence means that there is less risk of error and this decrease in risk should be worth paying for (the insurance industry is built on this concept). There is thus the pos­ sibility that if an auditor performs work of an aboveaverage standard, eventually the reputation of the auditor will rise and he or she will be able to charge more for his or her services. Therefore, there is an incentive mechan­ ism in the market for the auditor to improve or at least maintain the existing quality of work, although the audi­ tor will have to decide whether the costs of improving quality are justified by the increase in future audit fees that might arise once the improvement in quality has been recognized by the consumers of the audit service. How, then, does this economic analysis relate to the likelihood that an auditor will report honestly? Every time an auditor makes a statement that he or she knows to be false, that individual is risking two things: the costs of a successful legal action for negligence and the costs of a loss in reputation resulting in the reduction in fee income that the auditor can command. An extreme exam­ ple of the effects of losing reputation can be seen from the case of Arthur Andersen in its audit of Enron. The results of failing to discover the financial irregularities at Enron

meant that Arthur Andersen lost credibility and even­ tually had to cease trading throughout the world, even though the problem was only in its Houston office. Thus, the self-interested auditor has to balance the costs of reporting honestly (losing the audit and hence the future audit and other fees that would be earned from the client) against the long-term benefits of honest reporting (the avoidance of legal costs and the loss of income derived from a loss of reputation). The previous analysis concentrates on the position of a single economic rational auditor, but there is also a col­ lective perspective because it can be argued that auditors as a group benefit from being perceived as independent, technically competent individuals.

The Economic Value of a Self-Governing Audit Profession For a person to be recognized as an auditor, he or she has to belong to a professional body of auditors. In many countries (e.g., the United States and the United Kingdom), the professional bodies are self-governing and receive little governmental interference, which should confer substantial benefits on the audit profession. For example, entry into the profession can be limited by examinations and practicing certificate requirements, secrecy can be encouraged (e.g., in the past, audit firms were prevented from advertising by the rules of the profession), the regulation of accounting and auditing practice can be carried out by the profession rather than government, and misconduct can be judged by fellow professionals. All these benefits provide a potentially higher income stream than would be possible under a government scheme and also give the profession’s mem­ bers more flexibility in their work. It might be expected, therefore, that there should be a strong desire on the part of the auditing profession to maintain its self-regulating monopoly and avoid governmental intervention. Government tends to respond to public anxiety, which is usually fueled by some cause ce´le`bre, when the work of the auditing profession is deemed to be of unacceptable quality. Consequently, there is the additional need to report honestly in an independent manner because every occasion when dishonesty is discovered reduces the value of all audits from the perspective of users of financial statements as well as increases the possibility of governmental intervention leading to a loss of any selfregulatory monopoly that the profession enjoys. A clear example is provided by the collapse of Enron and WorldCom, which resulted in the Sarbanes–Oxley Act in the United States; this has had a substantial impact on the regulation of the auditing profession by creating a board to oversee the workings of the professional body.

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One way in which the profession attempts to ensure that its members behave with integrity is by promulgating and enforcing a code of ethics. Such codes lay down the minimum standards of behavior expected of members of the profession and hence can be said to constitute the moral rules of the profession. An egoistical explanation of the profession’s morality would be that all the benefits arising from being regarded as a competent, trustworthy auditor stem from the existence of a stable, well-thought­ of profession. Because the observance of certain moral rules is a necessary condition of such a profession, audi­ tors have an interest in maintaining the moral order of the profession. However, there is also an altruistic explanation for the profession’s morality that would argue that the preceding discussion based on egoism proves only that an auditor has an interest in other auditors abiding by the moral rules of the profession. It does not prove that it is in the interest of an individual auditor to abide by the rules because the central argument of altruism is that the explanation of morality cannot be reduced to self-interest. An altruist would argue, however, that it is the interest of people for their own sake that is a necessary condition for morality. This notion of the altruistic professional is not confined to auditing, and several authors have sug­ gested that professions may be distinguished from other occupations by their altruism, which may be expressed in the service orientation of professionals.

Analyzing the Ethical Pronouncements of the Auditing Profession At this point, it is worth considering the ethical codes issued by the auditing profession. These tend to be framed as a set of rules of conduct that members of the profession are instructed to strictly observe. The main approach seems to be deontological, with the rules being seen as duties that are morally obligatory for members of the profession. The view that auditors should think deonto­ logically is contained in paragraph 0.03 of Article III of the Codes of Professional Conduct (2007) of the American Institute of Certified Public Accountants: Integrity is measured in terms of what is right and just. In the absence of specific rules, standards, or guidance, or in the face of conflicting opinions, a member should test decisions and deeds by asking: ‘‘Am I doing what a person of integrity would do? Have I retained my integrity?’’

In a similar vein, the first two fundamental principles in the Code of Ethics for Professional Accountants issued by the International Federation of Accountants (2006) contain the following two admonitions:

Integrity – A professional accountant should be straight­ forward and honest in all professional and business relationships. Objectivity – A professional accountant should not allow bias, conflict of interest, or undue influence of others to override professional judgment.

In the past, it was possible to find examples of a profes­ sional body suggesting that its members should think about the consequences of their actions, as in the follow­ ing extract from the Institute of Chartered Accountants in Scotland’s (1971) Statement of Professional Conduct No 4: Unlawful Acts or Defaults by Clients of Members: The council therefore recommends that members . . . should not disclose past or intended civil wrongs, crimes . . . or statutory offences unless they feel that the damage to the public likely to arise from nondisclosure is of a very serious nature (italics added).

However, such examples are rare, and the general rule for auditors is to follow the guidelines laid down by the profession. Whereas the rules tend to be phrased in a deontological way as a series of duties that are morally obligatory for members of the profession, rule utilitarians might also argue that it is for the best to adopt strict rules and not to deviate in particular circumstances, even when in those particular circumstances more good will result from deviance from the rules. Thus, the ethical codes and other pronouncements of the auditing profession could be seen as appealing to those members who favor either the deontological or the rule utilitarianism approach to sol­ ving their ethical dilemmas by providing those members with an agreed set of rules by which to operate. No consideration should be given to the consequences of the auditor’s actions. Hence, auditors are instructed by their professional body to tell the truth at all times regard­ less of the consequences (‘integrity’ and ‘objectivity’ being synonyms for honesty). Therefore, the ethical position taken by the profession in regard to reporting any uncor­ rected material misstatements in the financial statements is always to report them. Thus, there would appear to be an underlying tacit assumption that the ethical problem for professional auditors in a given situation is not what they ought to do but, rather, whether to do what they know they should do. Kant seems similarly to suppose that determining what ‘duty’ requires of an individual on a particular occasion is not a problem. The problem is resisting the temptation when duty and interest conflict. In relation to the auditor’s choice of how much audit work should be carried out, the third fundamental prin­ ciple of the 2006 Code of Ethics for Professional Accountants issued by the International Federation of Accountants states the following: ‘‘A professional accountant should act diligently and in accordance with applicable technical and professional standards when providing professional

220 Auditing Practices

services.’’ Many professional bodies have followed the code of the International Federation of Accountants and so, for example, the same wording can be found in the 2008 code of ethics of the Institute of Chartered Accountants in England and Wales. An auditor should therefore perform as much audit work as is required by the existing standards of the auditing profession. The morally obligatory act or the act that will bring about the greatest happiness from the profession’s viewpoint is to do what other ‘competent’ auditors would do. It is perhaps worth pausing at this point to consider the basis on which the profession formulates the techni­ cal and professional standards that it expects its members to observe. The main question to be addressed is the number of people who should be considered when deciding what is the appropriate rule. The egoist expla­ nation would be that the profession considers only itself. Therefore, the rule utilitarian position becomes one of formulating rules that will result in the greatest happi­ ness for members of the profession. The consequences to others outside the profession would then not be of rele­ vance. The deontological categorical imperative of Kant would be to act only on the maxim that you can at the same time will to become a universal law applying to all auditors. An altruist explanation would be that members of the auditing profession believe that the well-being of society is enhanced by a strong, well-regarded auditing profession that follows a set of rules in all circumstances. Experience might be said to show that if a profession evolves and keeps to a shared standard, society as a whole is better off. However, there is a problem regarding the standard that the profession intends to keep. Brecht draws a dis­ tinction between two types of audit standards: plural standards, which directly represent the diversity of pub­ lic values and guide other decisions, and professional expertise standards, which are concerned with what is enough, competent, and cost-justifiable evidence. Plural standards represent the general public’s expectation of what the role of auditors is, and professional expertise standards represent the audit profession’s pragmatic response regarding how it can discharge this role. Because not all audit professionals have sufficient under­ standing of the plural values comprising society to balance self-interest and the public interest, if these values are to be protected, they must be represented by individuals from outside the profession. As Bayles is reported to have commented, Most policy decisions involve trade-offs among the values of consequences. Making these trade-offs is not the province of any profession’s . . . expertise.. . . Clients or the public bear most of the consequences which gives them a claim to set and apply norms [of professional conduct]. The claim of professionals must rest on their

expertise, but that is quite limited for economic and ethical norms, because that is not their area of expertise. (Quoted in Brecht, 1991, p. 95)

Parker goes further and produces a duality based on public and private interests. He argues that both public and private interests are ostensibly pursued by the profes­ sion. The public interest is readily declared, but the private interest remains submerged yet powerful. He sees the role of ethical rules in protecting the private interests of members as a vital component of the account­ ing profession’s continuing commitment to ensuring its own survival. In order to counter cynicism, the professional bodies’ response is to make their ethical ‘guides’ into rules that, if broken, will produce sanctions against the miscreant. One example is given in the following extract from the American Institute of Certified Public Accountants’ 2007 Code of Professional Conduct: Compliance with the Code of Professional Conduct, as with all standards in an open society, depends primarily on members’ understanding and voluntary actions, seconda­ rily on reinforcement by peers and public opinion, and ultimately on disciplinary proceedings, when necessary, against members who fail to comply with the Rules.

The previous quotation illustrates the central assumption of the codes of ethics of most auditing professional bodies: They need an enforcement mechanism to make them credible. The explicit purpose is clearly to reassure a skeptical public that auditors will act with objectivity and integrity because to do otherwise would incur the disciplinary wrath of the professional body of which they are a member. As well as imposing fines, the professional body’s ultimate sanction is to expel the member and so take away his or her livelihood. Hence, although the auditing profession would like ethics to be thought of as relating to the conscience of individual auditors, it is nevertheless the case that the auditing profession retains a backstop based on the assumption that sometimes audi­ tors will act from an egoistical perspective.

Conclusions Auditors’ moral reasoning has been considered from two viewpoints, deontology and consequentialism, assuming that the auditors are acting in an altruistic manner. It has been shown that deontology would imply that an auditor should always tell the truth irrespective of the conse­ quences. However, an altruistic auditor reasoning consequentially could occasionally believe that greater good would result if he or she failed to reveal information that would have serious consequences for the client firm and its employees (e.g., by not revealing that a company

Auditing Practices 221

might go into bankruptcy in the near future in a ‘going concern’ qualification in the audit report). The problem faced by the auditing profession is that readers of audited financial statements are skeptical about whether auditors can be trusted (the audit expec­ tations gap). Hence, the assumption that the profession and the interested government agencies have to make is that auditors are egoists interested in their own welfare. Such a view suggests that the best way to ensure honesty is either to make the costs of dishonesty so large that no one will be dishonest or to reduce the benefits that might accrue to auditors from being dis­ honest. Thus, the auditing professions in advanced countries have developed codes of ethics enforced by fines and expulsion from the professional bodies, which set out to steel the auditors’ resolve to avoid temptation by limiting their involvement with any one client. Although they are described as codes of ethics, they are little more than instructions for behavior in parti­ cular circumstances, with penalties for failure to comply. To ensure that auditors act in a technically competent and an independent manner, legislators have allowed large legal penalties to be extracted from neg­ ligent auditors. However, the main difficulty with the previously dis­ cussed approaches relates to the notion that trust can be produced by the correct use of economic incentives. The central assumption of most of the measures would appear to be that everyone’s honesty has a price and that the best way to produce honesty is to ensure that nobody is tempted to be dishonest. This notion does have the attraction of being consistent with the need for auditing in the first place because that is based on the assumption that company directors cannot be trusted either. Nevertheless, it does have a rather defeatist view because it implies that as a whole, human beings can be trusted to tell the truth only when it suits them, but that as soon as there are incentives not to tell the truth, then dishonesty can be expected. The reality is probably that only a minority of auditors behave as egoists, but to convince a skeptical world that all auditors follow minimum standards of behavior, the professional rules have to be targeted at this minority.

See also: Accounting and Business Ethics; Altruism and Economics; Business Ethics, Overview; Business Practices and Agent Virtue; Consequentialism and Deontology; Egoism and Altruism; Professional Ethics; Workplace Ethics: Issues for Human Service Professionals in the New Millennium.

Further Reading Brecht HD (1991) Accountants’ duty to the public for audit negligence: Self-regulation and legal liability. Business and Professional Ethics Journal 10(3): 85–100. Brooks LJ (1995) Professional Ethics for Accountants. St. Paul, MN: West. Cohen JR and Pant LW (1991) Beyond bean counting: Establishing high ethical standards in the public accounting profession. Journal of Business Ethics 10: 45–56. Flew A (1983) A Dictionary of Philosophy. London: Macmillan. Humphrey CG, Moizer P, and Turley WS (1992) The audit expectations gap – Plus c¸a change, plus c’est la meˆme chose? Critical Perspectives on Accounting 3(2): 137–161. Mackie JL (1986) Ethics – Inventing Right and Wrong. Baltimore, MD: Penguin. Maurice J (1996) Accounting Ethics. London: Pitman. Moizer P (1995) An ethical approach to the choices faced by auditors. Critical Perspectives on Accounting 6(5): 415–431. Moizer P (1996) Independence. In: M Sherer and S Turley (eds.) Current Issues in Auditing, 3rd edn. London: Chapman. Sen A (1987) On Ethics and Economics. New York: Basil Blackwell.

Biographical Sketch Professor Peter Moizer graduated with a chemistry degree from the University of Oxford and trained as a chartered accountant with Price Waterhouse. In 1989, after 10 years at Manchester University, he became professor of accounting at Leeds University, and in 2008 he was appointed as Dean of the Business School. His research interest is primarily in auditing, and he has published extensively in books and journal articles. He is co-founder of the European Auditing Research Network. He has been a council member of the Institute of Chartered Accountants in England and Wales and is the senior moderator for its professional stage examinations. He was a reporting member of the Competition Commission and is currently a strategy advisor to the Greater Manchester Pension Fund (approximately $14 billion in assets).

Authority in Education C Winch, King’s College London, London, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Normative Describes how matters should or should not be, or whether they are or are not in accord with certain values.

Introduction Traditionally, philosophers have tended to discuss the concept of authority in the context of political theory and inductive logic. It is frequently argued that authority is a normative concept implying a certain entitlement to use power. Weber adopts the term Herrschaft or domina­ tion to denote authority. Bendix has argued that Weber uses ‘domination’ synonymously with ‘authority’ and uses the term to distinguish authority from other sorts of power. Someone who is authoritative in this sense can be said to be in authority. For those who believe in such an entitlement, the normative connotations are positive; for those who do not believe in it, they are negative and the term ‘authoritarian’ is often used to characterize morally unacceptable exercises of authority or power in phrases such as ‘‘an authoritarian government.’’ ‘Authority’ is also used in the sense of meaning possession of a body of knowledge, understanding, or skill. When someone possesses these attributes, he or she is said to be an authority. Authority is therefore relevant to education in both an epistemic and a sociopolitical sense.

Authority and Society Social and Political Authority Authority in the sociopolitical sense is a more general concept than political authority, where politics is con­ ceived of as the practice of organizing and regulating human affairs through a state and legal system. There are questions regarding the role of authority in human life more generally. These can be separated into two related lines of enquiry – the extent to which authority plays a role in human life and the extent to which it should. We might thus expect to see the concept of authority employed in areas such as discussions of sexual and family relationships of upbringing, training, and learning and of knowledge and belief as well as in more overtly political debates. Authority is relevant to

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Epistemic Pertaining to knowledge or to the conditions for acquiring it. Legitimacy The property of having recognized authority over a person or an institution.

education not only through questions of teaching and learning (as part of a general discussion of the concept of authority) but also in politics because the provision of education as a public or semipublic good is not just a social but also a political matter; that is, it is regulated or organized by the state and set within a framework of law. Some educational philosophers, such as Rousseau, have treated discussion of the epistemological, the domes­ tic, and the political sphere as very closely related and largely inseparable. In Rousseau’s discussion, the relation­ ship between power and authority at all these levels is central to an understanding of both his educational and his political theory. Is authority necessary to any society? It is apparently a consequence of some philosophical approaches, notably those stemming from the work of the later Wittgenstein, that some form of authority is an unavoidable and essen­ tial aspect of human association. The claim is that the concept of authority is implicated in the idea of a society as such so that any accurate description of a society would include an account of the role that authority plays in it (this does not imply that society has to be political). Some writers, such as R. S. Peters, take the view that not every method of deciding what is wrong or right entails the exercise of authority; only those that require the partici­ pation of an authority figure or auctor do that. It follows from this position that social life as such does not require authority; as a rule-governed system, it requires ways of deciding what are correct and what are incorrect ways of following the rules regulating that system. In making this claim, Peters appears to be saying that authority requires an individual or auctor, either accre­ dited in some way or in a position to act. The presence of such an individual would constitute a necessary but not sufficient condition for the exercise of authority because the auctor may fail to act in the appropriate manner by issuing information, advice, or commands. It might be denied, however, that even if there is such an individual, and even though he issues commands, counsel, or infor­ mation, he thereby necessarily exercises authority rather

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than power. In Peters’ discussion of the role of the tutor in Rousseau’s Emile, he writes of him as being, at least in a sense, an authority over Emile, his student. It has been argued, however, that the tutor, although in authority, through having the derivative right to teach Emile, influences him through the use of power rather than through the exercise of his authority because he relies, for the most part, on covert manipulation or con­ ditioning rather than indicating overtly what is right and wrong, what is correct or incorrect, to achieve his educa­ tional aims. Both Peters and Rosenow think that this control constitutes authority; it could be argued, however, that it is rather the covert employment of superior power. This in turn suggests that it is not merely the presence of an authoritative figure that constitutes the exercise of authority but also the way in which the influence is exercised by the auctor. However, it could be argued (and this is implicit in the work of some writers) that if this influence is exercised by showing the person being influenced what are the correct or incorrect, right or wrong, ways of going about things, then if the person doing the influencing is in some way accredited to do so (even if only in an implicit or informal sense), we can say that the influence being exercised is an authoritative one. On this view, the presence of an auctor is too formal a requirement; in some circumstances, any individual who is not explicitly debarred from issuing information, counsel, or commands is by default an authority, provided that he or she is possessed of the knowledge, skill, or understanding necessary to carry out that function. Arguably, an account like that of Peters needs to be supplemented with an account of the way in which an authority exercises the power that he or she has, namely through the overt pointing out of right and wrong ways of going about things. If this can be done by an informal authority, a formally constituted author­ itative individual would then be neither a necessary nor a sufficient condition for the exercise of authority in gen­ eral. However, there is a further question concerning the conditions for the exercise of authority in education. Authority can be distinguished from power through its normative connotations; the implication is that authority is a form of power that is, in some sense, legitimate. As we have seen, some have argued that this legitimated power can be distributed and informal or even implicit as, for example, in the kind of training given to a child learning his or her mother tongue by parents. On this view, Peter Winch’s contention, disputed by Peters, that any form of society requires authority in some form or other would appear to be correct. Authority is a necessary feature of society (which is rule governed) and of learning in a rulegoverned context, in which successful learning is estab­ lished by correctly following the relevant rules. These rules do not have to be explicit but can be embodied in normative activities of instructing, defining, explaining,

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justifying, and evaluating. Winch’s account has been cri­ ticized for conflating being an authority with being in authority. From the fact that someone is an authority on his or her mother tongue, for example, it does not follow that he or she is in authority as a teacher of the language. It might be replied, however, that at this basic level, these two aspects of the concept of authority are not clearly distin­ guishable. Being an authority on one’s mother tongue implies that, in a certain range of circumstances, one is entitled to pronounce on correct and incorrect usage and to give instruction. Winch’s claim would then hold because he could be interpreted as drawing attention to a basic, albeit informal, aspect of authority that resisted further differentiation. It is only when role definitions are made formal and where there is a distinct division of labor regarding the transmission of knowledge that it becomes useful to distinguish between these two senses of author­ ity. According to Anscombe, there are two different ways in which authority can be conferred: (1) through the repeated exercise of power on a customary basis and (2) through the existence of a task that needs to be carried out. Hume is the best-known defender of the idea that authority derives from the customary exercise of power. Authority is exercised over young children on both these bases, and parental authority arises particularly from the task vested in parents to raise their children properly. It could be said that all that Anscombe has established is that adults in general and parents in parti­ cular are in authority in any society, but her claim would not make any sense if adults and parents were not autho­ rities on the knowledge and skill that children need in order to become adults, for otherwise there would be no custom and parents would not be allotted such a task. In the more formal contexts of the education of older chil­ dren, in which a division of intellectual labor becomes necessary, the distinction is a useful one.

Authority and Teaching The particular relevance of the concept of authority for education lies in the question of whether or not human learning is possible without it. The issue of the impor­ tance of teaching in learning brings authority to the fore because it is precisely the question about the entitlement or otherwise of teachers to move learning forward that becomes central. This itself breaks down into two further questions: (1) of the teacher being an authority, namely a source of expertise, and (2) of the teacher being a legit­ imate person entitled to teach and to promote learning. It appears that although the first might seem to be a neces­ sary condition of the second, it is not sufficient. On this view, someone who is a teacher, then, is someone who is an authority in both senses. It needs to be added, to take

224 Authority in Education

account of cases such as that of Emile’s tutor, that author­ ity must be exercised in the appropriate way. We need to turn once again to Peters’ point about the accredited individual or auctor. It is quite possible to maintain that Peters is wrong about this necessary condi­ tion for authority in general but right about it for education, particularly formal education. Although it can be maintained that any adult with a minimal educa­ tion could suitably constitute an authority about the ways of the world for a young child up to the age of 4 years and therefore be, in normal circumstances, in authority to teach such matters, it is much more difficult to maintain that all minimally educated adults could fulfill this requirement beyond that point. At the next stage, it could be argued, individuals with increasingly specialized knowledge are required to fulfill the role of having sufficient expertise to be an authority capable of being a reliable source of information. If we add the requirement that an education service needs to keep a check on who actually possesses such knowledge before employing them, then it is not difficult to see that in order to be accredited and employed as a teacher (to be in authority), one would have to have satisfied, as one con­ dition, the requirement that one is an authority regarding a particular subject matter. Teachers, then, at least in modern societies, seem to be a form of legal-rational authority in Weber’s sense. In many cases, they are accre­ dited both in terms of their knowledge and in terms of their expertise in getting pupils and students to learn. In order to operate (to be in authority), they need both accreditation with respect to the former attributes and a formal offer of employment. Peters, however, would probably have objected to this way of characterizing the role of teacher as auctor. A teacher might have the role assigned to him and not be an authority on the subject matter taught. He would still, in some sense, be entitled to transmit information. Alternatively, an individual may have the necessary knowledge but lack the role legitimation; he may be an authority on the topic to be taught but lack the role that would accredit him to teach in a school, for exam­ ple, but might still command enough respect to carry out the role by effective teaching. This is why Peters is inclined to say that both being in authority and being an authority are not even necessary conditions for the ascription of authority, although apparently being an auctor is necessary. It could be said that although Peters is right to claim that these are not necessary conditions in the strictest sense, they do nevertheless have a strong bearing on the question regarding whether we are inclined to ascribe authority to someone as a teacher. Those who lack relevant knowledge or skill find their ability to perform impaired, particularly so when they are found by their pupils to lack that knowledge. In such

circumstances, at the very least, their authority is impaired as their ability to get their pronouncements listened to with a degree of respect is eroded. Likewise, someone with no accredited role, but with the relevant knowledge and ability, may act in an authoritative manner and be accepted as an authoritative individual in certain circumstances. In this connection, Peters cites the butler in J. M. Barrie’s play, The Admirable Crichton, who, although formally a subordinate, is accepted as being in authority through the successful exercise of superior knowledge when the party, including his mas­ ter, is shipwrecked. For someone who thinks that being in authority is a necessary condition for the exercise of authority, there are a number of possible responses to such a case. First, it could be maintained that the butler exercised power rather than authority and was thus not in authority strictly speaking. Second, it could be main­ tained that the butler assumed authority by default through his master ceding his authority in practice. There was a task to be carried out and there was tacit consent for the butler to carry out that task, which meant assuming persuasive power over the other members of the party. Third, it might be said that an unusual case such as this does not show that, in the generality of cases, being in authority is not a necessary condition of acting with authority. It might be further noted that although the butler initially assumed power, the customary exercise of that power eventually led to his acceptance as being in authority. To be effective as teachers, individuals may need more than knowledge and an accepted role; they may need particular personal abilities. These would relate to being able to command attention and to gain loyalty among the class. Inevitably, charismatic powers of this kind have affective properties; pupils and students are inspired to pay attention and learn through the opera­ tion of love, devotion, awe, or fear to some extent irrespective of the truth or correctness of the subject matter taught. If teachers have, of practical necessity, to operate in this way, then it ought to be asked whether or not they are entitled to do so (because their entitle­ ment will not necessarily arise from their legal role) in view of the possible long-term effects that charismatic teaching may have on students. The problem is, per­ haps, particularly acute with young children, whose acceptance of power and authority is likely to be undiscriminating. The most pressing aspect of the pro­ blem would be where a teacher is teaching something that is controversial as unquestionably true and is teaching it intentionally so as to produce unshakeable belief in his or her pupils through the employment of affectively loaded charismatic teaching techniques. This issue brings us to the problem of indoctrination, which cannot be treated in this article.

Authority in Education

Authority and the Curriculum Most states have norms prescribing what ought to be taught, which are authoritative in the sense that they have been established by someone who is entitled to do so. These are usually called the curriculum, which is the prescribed content of education; it is not a description of what goes on in a program of teaching but, rather, a description of what should go on. Note that the definition applies to the notion of a hidden curriculum. If this term makes sense at all, it means the unacknowledged prescrip­ tion of unofficial (and often unwritten) content. Education as a social project involves someone who is in authority (e.g., a church, a school board, or a govern­ ment) setting out the program of study. In an ideal situation, what actually takes place in schools and colleges is a working through of the prescriptions in the curricu­ lum. This need not entail that every detail of what goes on in the schoolroom is a reflection of these prescriptions, but it does entail that they are duly covered. There will be many situations in which what happens in the school is only a partial or even a nonexistent work­ ing out of the curriculum. But to describe this state of affairs as the following of a curriculum is a mistake; one needs to distinguish between what is the case and what ought to be the case, and the curriculum relates to the latter. However, there are situations in which it is extre­ mely difficult to physically obtain the curriculum in written or even in spoken form. This frequently occurs where it exists only at the school or even the class level. In such a situation, authority regarding what should be taught becomes informal or even implicit. The question then arises, ‘‘At what point are we still able to call this a curriculum in any meaningful normative sense?’’ Notice that the situation is different from that in which young children pick up their mother tongue and certain basic knowledge. The school curriculum normally consists of selected knowledge that requires at least a degree of specialist expertise in order to be effectively taught. If the curriculum is normative and embodies author­ itative pronouncements concerning what is to be taught, then who has the authority to write it? This is a complex issue that relates to the various interests that have a stake in the control of education and the lines of accountability that they have to each other. There are four possible answers: parents, teachers and educational professionals, the community, and the state. Parental rights to prescribe content can be justified in a number of ways. The first is religious sanction; the second is custom, practice, and tradition; and the third is through some kind of contractual or quasi-contractual relationship between the parent and the child, on the one hand, and between the parent and the society, on the other hand. The first two approaches are found where religion or

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custom and practice sanction parental right. If they fail or fall into desuetude, however, parental rights become a problem. Locke provides an account of how parents might have such rights irrespective of religious or customary sanction. He suggests that children have rights, grounded in their interests, that they cannot fully defend or even recognize. Accordingly, those who have responsibility for them – in most cases, parents – have the duty to attend to those interests. Because they cannot do so except through having some ability to control the children in their care, they have derivative rights over their children that stem from the duties that they inherit in respect of their chil­ dren’s primary rights. It would follow from this argument that the curriculum would be one area over which the parents had rights. They would be in authority without necessarily being an authority on the curriculum. The Lockean account is not without problems. The first is the limited competence of parents to write a curriculum; they may be obliged to delegate their respon­ sibility (perhaps with the right of veto) to those who are authorities on teaching and learning. This is a particular instance of a more general issue in the Lockean account, which is that where parental incompetence or ill will can be shown, those parents forfeit their derivative rights visa`-vis their children. Second, the interests of other mem­ bers of society are implicated in the way in which any particular child is raised. On the face of it, this gives rights to nonparents vis-a`-vis the upbringing of children who are not their own. This is likely to prove to be a problem in cases in which parental interpretation of what the curriculum should consist of conflicts with the views of significant groups of other members of society who are not the parents of a particular child. In cases in which the parents concerned are in a significant minority, the major­ ity of citizens, or the state acting on their behalf, may judge them to be incompetent or malevolent and take action accordingly. In other cases, there may be a process of negotiation whereby a consensus is reached regarding the extent to which each party can implement in the public sphere the values that they espouse for their chil­ dren. Whatever then emerges as the curriculum will be authoritative on this account because it will be the result of a negotiated consensus concerning the implementation of values that is then embodied in the authority of parent, state, or community – whoever, in any particular society, is charged with the provision of education. The second answer to the question of who has author­ ity to design the curriculum is educational professionals. Their presumed authority rests on their expertise as sub­ ject specialists and, more controversially, on their alleged expertise on how children learn. There are weak and strong versions of the case for professional control of the curriculum. The weak case asserts that they have author­ ity through delegation. Because parents, communities, or the state is unwilling or unable to directly write the

226 Authority in Education

curriculum, teachers and educationists are entrusted to this role on their behalf. On this view, they have this authority just so long as they carry out the role with which they have been entrusted. There are two strands to the strong argument for teacher control. The first is that teachers are the autho­ rities (in the cognitive sense) on what should be taught and how it should be taught. The second is an argument concerning political liberty. Because, it is claimed, tea­ chers are in fact a disinterested group, concerned only with the welfare of their pupils or students, they are best placed to write a curriculum that is free from political interference and attends to the best interests of children. It is sometimes maintained that even where the state deploys resources for education, the professionals should hold this right. Although Mill does not refer explicitly to the curriculum, control of it by the teacher is implicit in what he says. The difficulty for holders of this position, as for very strong advocates of parental rights, is that it cannot ignore demands for accountability. If Locke is right, parents can only delegate, on a temporary basis, the right to attend to the interests of their children. Teachers remain accoun­ table to parents. In a more general sense, if resources are provided for an educational purpose and they are accepted for that purpose by teachers, it is an elementary ethical requirement of trust and good faith that those who receive the resources from, for example, the state use them for the purposes for which they were intended. The third possible source of the curriculum could be the community. In cases in which a democratic state delegates curricular authority to a local body such as a school board that has been democratically constituted, the situation is much like that described for state control of education in a democratic society (discussed later). However, where the authority of the community is exercised (1) informally, (2) undemocratically, or (3) democratically but with a majoritarian bias, the possi­ bility of arriving at a negotiated outcome concerning the implementation of different sets of values may be com­ promised. Where a community has a large majority that coalesces around a strongly held set of values that are not shared by minorities within that community, there are dangers that the dominant set of values will prevail with­ out any form of negotiation. In this type of case, it can be maintained that the authority of the community becomes a form of authoritarianism, whereby authority is applied without sufficient regard to the rights of those over whom it is exercised. The fourth possible source of authority for the cur­ riculum is the state. It can be argued that it has such an authority if it has been delegated by, for example, the electorate to provide education on its behalf. Again, the authority so acquired is, on a Lockean account of representative government, a derivative one, and

the ultimate source of authority on curricular matters would be the electorate, which consists of parents and others. One advantage of seeing the source of authority for the curriculum in a publicly funded education sys­ tem in this way is that it appears to deal with a number of the difficulties already encountered. The wishes of the electorate tend to coalesce around political pro­ grams put forward by different political parties, in which educational policy concerning the curriculum will figure. These will embody the negotiated outcomes of the combined wishes of coalitions of parents and other citizens and will constitute a proposal that can be put before the electorate as a whole, which can then choose to which of these educational proposals they wish to subscribe. In the more consensual forms of democratic polity, some of the positions in a party manifesto will at least take account of the preferences of other coalitions of interests and points of view repre­ sented by other political parties. The democratic political process, on this model, embodies the disparate interests of different sections of society and synthesizes them into policy that maximally satisfies all, given the preferences of the majority grouping. Where the repre­ sentatives of the nonmajority groupings continue to have influence or have the realistic prospect of govern­ ment at some point in the foreseeable future, then they have a stake in the settlement of curricular matters. Where neither of these two conditions obtain, then the strict majoritarianism described previously in the case of community control obtains. This view of the curriculum sees it as a coordination problem that requires an authoritative solution. Sometimes the very idea of the curriculum as prescrip­ tion is attacked. The argument can be developed by questioning the right of a particular body, such as the state, to prescribe educational content. Occasionally, it rests on a denial that the curriculum as such should be prescriptive. The first argument can be found in John Stuart Mill’s On Liberty, in which it is argued that state prescription of content is inimical to the liberty of citi­ zens. Mill’s requirement that parents be accountable for the education of their children through an assessment regime implicitly requires a curriculum that forms the basis of assessment. Mill’s argument, although it does point to certain difficulties with the notion of state-controlled education, does not engage with the demand for accountability that appears to follow from the requirement that those who allocate resources for a certain purpose enjoy rights to see that those resources are used for that purpose. The second argument rests on a misunderstanding; if learning is orga­ nized into a structure that has internal coherence, then someone must have the knowledge and the recognized position to be able to say what that structure is and that it is what should be taught. This person may be the

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individual teacher acting as an authority on his or her subject matter, or it may be a providing body. In either case, it is difficult to see how education could occur as a rational enterprise without some such authority. It could be argued that if one cannot distinguish between what does go on and what should go on, then one has no way of evaluating the success of the enterprise or even whether it is an educational enterprise.

Arguments against Authority in Education Rousseau and Emile Probably the best-known and most influential advocate of nonauthoritarian education is Rousseau. In Emile, Rousseau argues that the overt imposition of one will on another is likely to be psychologically damaging both to the one who imposes and to the one imposed upon. In the overt imposition of one will upon another, the amour propre of both parties can suffer damage. In Rousseau’s moral psychology, amour propre is the animal love of well­ being and sense of self-preservation (amour de soi ) with a human moral, developmental, and social dimension. Dent makes a powerful case for inclining to this view. An individual who is imposed upon will suffer damage to his amour propre through the generation of feelings of paranoid rage and resentment. The imposer, on the other hand, will suffer damage to his amour propre through the development of an urge to dominate and to harm others for the sake of so doing. If Rousseau is correct, it can be seen that the relationship between the educator and the educatee has to be handled with great care if it is not to result in harmful consequences for both. It is of no consequence for Rousseau’s argument that the educator might be an authority in either or both senses. The tutor is certainly in authority over the pupil, and there is little reason to doubt that he is also an authority on what Emile is to learn. The critical point is that the overt imposition of will is psychologically damaging and therefore wrong. The educational project set out in Emile is to provide an education without the overt exercise of one will over another. In pursuing this project, Rousseau has to substitute various forms of covert imposition of the will of the tutor over Emile in order to enable him to learn what he wishes him to learn. In effect, the tutor has abandoned the role of teacher and has substituted for it the role of enabler or, less flatter­ ingly, manipulator of educational situations. The tutor, like any other teacher, still has an educational program and, in some sense, a curriculum (what he has prescribed that Emile shall unknowingly learn), but it is essential to the project that Emile be unaware that this program is being applied. Emile is thus put into situations that appear to rely on learning through conditioning (the

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child is taught not to break windows through being deprived of their benefits, such as shelter from the ele­ ments) and manipulation into situations in which affective considerations (e.g., hunger and fear) promote recollection and learning (as in the Montmorency inci­ dent). Through this program, Emile achieves what, for Rousseau, is the most prized educational goal, namely the development of a healthy amour propre. Rousseau, it might be maintained, evacuates authority from his edu­ cational program at the cost of introducing a total form of power that is, on many ethical criteria, unacceptable. Although it is possible to see how Emile might develop a healthy amour propre (i.e., if one is prepared to accept Rousseau’s psychological assumptions and the etiology associated with them), it can also be maintained that the program comes with considerable costs attached to it. The first is that associated with the risk of the pupil discovering that he is being conditioned or manipulated and the psychological damage that could result from such a discovery. One might well imagine that paranoid feelings of rage and resentment on the part of the pupil would be the natural response to such a discovery. The second cost is attached to the tutor. It is impossible to conceal from himself that he is imposing his will on the pupil. The exercise of guile and the resultant feeling of power that such a position could engender is likely to lead to the kind of inflamed amour propre animated by a lust for domination that Rousseau warns against as one of the ills besetting society.

Conclusion The discussion of autonomy as an educational aim and the authority of society as the sovereign body to whom educators are accountable shows the tensions that exist between the liberal educator’s demand that the goal of the process should be personal liberation and the view of society that education should benefit it in ways that are readily recognizable. The conflict between the desire for rational autonomy and the desire for authoritative con­ sensus is as acute in education as it is in other areas of political theory. Authority remains a topic of central importance for ethical enquiries concerned with education.

Further Reading Anscombe GEM (1990) On the source of authority of the state. In: Raz J (ed.) Authority, pp. 142–173. Oxford: Blackwell. Baker GP and Hacker PMS (1991) Wittgenstein: Rules, Grammar and Necessity. Oxford: Blackwell. Cavell S (1999) The Claim of Reason. Oxford: Oxford University Press. Darling J (1994) Child-Centred Education and Its Critics. London: Chapman. Dent N (1988) Rousseau. Oxford: Blackwell.

228 Authority in Education Flew A (1976) Sociology, Equality and Education. London: Macmillan. Friedman RB (1990) On the concept of authority in political philosophy. In: Raz J (ed.) Authority. Oxford: Blackwell. Locke J (1980) Second Treatise of Government. Indianapolis, IN: Hackett. (Original work published 1690.) Mill JS (1910) On Liberty. London: Dent. (Original work published 1859.) Peters RS (1965) Ethics and Education. London: Allen & Unwin. Peters RS (1967) Authority. In: Quinton A (ed.) Political Philosophy. Oxford: Oxford University Press. Peters RS (1981) The paradoxes in Rousseau’s Emile. In: Peters RS (ed.) Essays on Educators. London: Allen & Unwin. Raz J (ed.) (1990) Authority. Oxford: Blackwell. Rousseau JJ (1911) Emile ou l’education (Foxley B, trans.). London: Dent. (Original work published 1762.) Weber M (1978) Economy and Society (Roth G and Wittich C (eds.)). Berkeley, CA: University of California Press.

Winch P (1967) Authority. In: Quinton A (ed.) Political Philosophy. Oxford: Oxford University Press.

Biographical Sketch Christopher Winch is Professor of Educational Philosophy and Policy, Department of Education and Professional Studies, King’s College London. He is author of The Philosophy of Human Learning (Routledge, 1998), Philosophy and Educational Policy (with John Gingell; Routledge, 2004), and Dimensions of Expertise (Continuum, 2010), among many other works on themes in philosophy of education.

Autonomy S Holm, Manchester University, Manchester, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Autonomy From the Greek autos (self) and nomos (rule or law), self-determination, self-rule. Paternalism The act of overriding the autonomous decisions of a person with the intention of benefitting that person. Preference What a person wants to do or wants to be the case.

Introduction Autonomy is a philosophical concept of art that plays an increasing role in various branches of applied ethics as well as in political philosophy. Etymologically it is derived from the two Greek words autos (self) and nomos (rule or law) and therefore literally means self-rule or self-determination. The term has been used with various technical meanings in different schools of ethics, and it is not fruitful to base a philosophical discussion of the concept on an elucidation of its meaning in common discourse, since this commondiscourse meaning is strongly influenced by its philosophical and political use. Over 30 years ago, Gerald Dworkin pointed out that the concept of moral autonomy is defined in at least six substantially different ways in philosophical discourse: 1. A person is morally autonomous if and only if he is the author of his moral principles, their originator. 2. A person is morally autonomous if and only if he chooses his moral principles. 3. A person is morally autonomous if and only if the ultimate authority or source of his moral principles is his will. 4. A person is morally autonomous if and only if he decides which moral principles to accept as binding upon him. 5. A person is morally autonomous if and only if he bears the responsibility for the moral theory he accepts and the principles he applies. 6. A person is morally autonomous if and only if he refuses to accept others as moral authorities, that is, he does not accept without independent consideration the judg­ ment of others as to what is morally correct. (Dworkin, 1988: 35)

The subsequent discussions have shown that even these six definitions do not exhaust the field, and that the discussion of the exact content and limits of moral autonomy is still

Second-order preference A preference regarding the kind of (first-order) preferences a person wants to have. Respect for autonomy The moral principle that one ought to respect and not interfere with autonomous decisions.

open. One can therefore not a priori assume that two philosophers writing about autonomy use the concept with the same meaning. The idea that we have strong moral reasons to respect autonomous decisions is closely linked to the develop­ ment of the doctrine of informed consent in health care ethics, but an analysis of informed consent is not within the scope of this article.

The Historical Development of the Concept of Autonomy The Concept of Autharchy in Greek Political Philosophy The first traces of the concept of autonomy can be found in early Greek political philosophy. An important distinc­ tion here was whether or not a city-state possessed autharchy (self-rule) or whether it was under the rule of some other city-state. Autharchy was seen as important because it allowed the citizens of an autharchous citystate to promulgate laws that were especially suitable to their specific situation. Autonomy was sometimes used as a synonym for autharchy, but then almost always with reference to city-states and not to individual persons. Because most of Greek and Roman moral philosophy was not concerned with individual acts as such but more with how to build a virtuous character, and how to define the virtues, autonomy never became a prominent theme in early moral philosophy. In the medieval period, discussions of autonomy were not prominent either and the concept lay dormant until the enlightenment period where it was revived and con­ nected to the growing emphasis on individualism in philosophy and in society at large. The writings of Hugo

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de Groot (Grotius) and Erasmus of Rotterdam played a significant role in setting off this revival. Autonomy in Kant’s ethics Autonomy is a central concept in the ethics of Immanuel Kant, but his development of the concept can best be understood if it is seen as a reaction to the development of the concept of liberty in Hume. Hume proposed to solve the free will problem, i.e., the problem of the contradiction between the idea of human liberty and the idea of natural necessity, by dissolving it as an only apparent contradiction. If liberty is understood as freedom from external constraint and necessity as the opposite of chance or randomness, the contradiction dis­ appears. For Hume, somebody is free if there are no external constraints on his or her actions, and this is not contradicted by the fact that his or her actions may be predictable or regular. To have a free will in a Humean sense is therefore not necessarily to be the final author of your own acts, but simply that if you decide to act you can act without external constraint. Kant reacted against this purely external conception of liberty and pointed out that freedom is more than free­ dom from external constraint. Kant’s concept of autonomy is, like many other of his central philosophical concepts, derived through transcen­ dental reflection. Kant makes the observation that we do believe that we can judge the actions of other persons morally and then proceeds to ask the simple question: what preconditions must be true for such a judgment to be valid? His answer to this question is that the moral agent must have chosen his action freely and on the basis of moral principles that are also freely chosen. If these con­ ditions are not met, then our act of judgment of the other is meaningless, because he or she is not truly responsible. But to be a truly moral agent, it is not sufficient that the moral principles the agent acts upon are freely chosen, they must also be the moral principles that a fully rational agent would choose. And in Kant’s scheme, the fully rational agent would choose the principles that fulfill the first formulation of the Categorical Imperative: ‘‘Act only according to that maxim whereby you can at the same time will that it should become a universal law’’ (Kant, 1994: 52). Ideal moral agency thus requires that the agent be autonomous in the sense that she has rationally chosen her moral law for herself. Actions based on moral princi­ ples that are not self-chosen are heteronomous. Kant believes that autonomy and full rationality are coexten­ sive, and since his criterion for ascribing rights to an individual is rationality, all autonomous beings have moral rights (as well as some partly heteronomous but nevertheless rational beings).

According to Kant, every person has a duty to try to perfect himself or herself in order to attain moral auton­ omy and a duty to respect the moral autonomy of others. This respect for the moral autonomy of others follows directly from the second formulation of the categorical imperative which proscribes actions which treats others merely as means: Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never merely as a means, but always at the same time as an end. (Kant, 1994: 66–67)

It is important to note that what makes autonomy impor­ tant for Kant is not primarily that it can form the basis of various rights, but that it is necessary for any claim to true moral agency. Autonomy in Mill’s Ethics John Stuart Mill represents the other important strand in the historical development of the concept of autonomy, although he rarely uses the word in his writings. In his works, Mill deepens the analysis of autonomy as freedom from external constraint, but adds a line of argumentation to show why respecting the autonomy of others is valu­ able seen from a consequentialist perspective. According to Mill, autonomy is valuable to a person, because we all prefer to be the authors of our own lives. When we are allowed to develop our own lives and thereby our own individuality, this in itself produces utility, and further utility is produced as a by-product when our acts are felt to be our own. It is partly on this basis that Mill can claim: It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question. The other party to the comparison knows both sides. (Mill, 1910: 281)

For Mill autonomy is not valuable in itself, but because it directly and indirectly leads to the production of utility.

Autonomy in Modern Applied Ethics In modern applied ethics, autonomy is a very important concept. In some theories of biomedical ethics, respect for autonomy occupies center stage as either the only or the most important moral consideration. It also plays an important role in other branches of applied ethics. Sociologically the growing emphasis on autonomy can be seen as a consequence of a number of social develop­ ments in the first-world countries: (1) large family

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structures have gradually disappeared and the free indi­ vidual has come to occupy center stage in our thinking about society, (2) the fact of moral pluralism has been recognized on a social level and has, at least in some countries, led to a decline of state regulations specifically aimed at enforcing morality, and (3) decision making in health care has gradually been forced to conform to a more and more legalistic model where patients and care­ givers, or customers and health care providers, are seen mainly as potential adversaries and not so much as poten­ tial coworkers. The central role of autonomy in modern applied ethics has also intensified the debates about the two problems that Kant and Mill already grappled with: (1) What is autonomy? (2) Why should we respect autonomous choices?

Problems in Defining Autonomy Modern discussions of autonomy focus on the question of the exact definitions of an autonomous action and an autonomous agent. What are the necessary and sufficient conditions needed for autonomy? Negative liberty (i.e., freedom from external constraint) is obviously a necessary condition for auto­ nomous action, but is it also sufficient, that is, are the concepts negative liberty and autonomy coextensive? Most moral philosophers would say no, and add that an agent also needs to choose the act in order to have performed an autonomous act. If I swat a fly in my sleep then my act is not autonomous. I am under no external constraint, but the act is pure reflex, and thereby not autonomous. It also seems to be the case that the agent needs to be free from deception for an act to count as fully autono­ mous. If someone deceives me, he or she can interfere with my autonomy without interfering with my liberty. The first of these further conditions is often expressed in terms of preferences, and leads to a point of view called preference autonomy: an act is autonomous if and only if the agent has a preference for performing the act, and this preference is active in the requisite sense in the set of events leading to the agent’s performance of the act. Many philosophers would, however, refer to the pos­ sibility of deception and claim that even preference autonomy is not sufficient for an act or an agent to be truly autonomous. It also matters how the preferences of an agent have been formed. If the act is the result of a preference formed by, for instance, brain washing, indoctrination, or decep­ tion, or while under the influence of alcohol or drugs, or in other circumstances where an agent forms preferences without actually endorsing them in the right way, then the act that is performed is not an autonomous act,

because the preference was not really an authentic pre­ ference of the agent. According to this view of autonomy, usually called dispositional autonomy, it is a necessary condition for autonomy that the agent is able to engage in secondorder reflection on his or her first-order preferences and is able to change the first-order preferences as a result of the second-order reflection (or at least able to try to change them). This view entails that there is not necessa­ rily a direct link between each individual act of an autonomous agent and the second-order capacity of dis­ positional autonomy. An autonomous agent may well on occasion perform nonautonomous acts. Dispositional autonomy is an attractive theory of autonomy and moral agency, but it is not without problems. First of all there is a problem in defining the exact content and limits of the dispositional attitude that defines autonomy. Effective brain washing can be seen as the limiting case of inauthentic preference formation, but how much reflection is necessary before an agent can claim that her preferences are authentic and she is auton­ omous? Let us say that a person has been brought up in a religious family, has later had a secular university educa­ tion with ample exposure to other ways of life (other sets of preferences), and has now embraced the religious views of his family. Is such a person autonomous or not? He would probably not have chosen his present set of preferences if he had not been brought up in a certain way, but this is trivially true of most sets of preferences. If dispositional autonomy requires preferences that are fully self-chosen and authentic in the way described by Camus, Sartre, and other French existentialists, very few persons would ever be autonomous. This example shows that it is impossible in practice to set any definite criteria for the degree of self-reflection necessary for someone to have dispositional autonomy. It may also be the case that a person is autonomous in some areas, but not in others, because her reflection on her preferences has only dealt with certain areas of her preference structure. These worries about the authentic nature of a person’s current preferences and his or her ability to change them could also support the conclusion that dispositional autonomy should be seen as a matter of degree and not as an all-or-nothing phenomenon. Such a gradualist inter­ pretation of dispositional autonomy could be of specific interest in discussions about the moral status of children and the importance of their decision making. It seems prima facie highly implausible to claim that children suddenly gain full autonomy, and the moral status con­ sequent upon autonomy, at some specific point in their development. A gradualist approach seems much more sensible and can be supported by the empirical observa­ tion that children continuously develop more and more

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first- and then second-order preferences as they mature, and that the reasoning behind these preferences becomes gradually more sophisticated. A final answer to the question of what preferences should count as truly authentic could be that only pre­ ferences based on rational belief and reached through fully rational reflection should count. This position faces two problems: (1) it requires a compelling theory of rational belief and preference formation, and such a theory does not seem to be forthcoming, and (2) most preferences held by people are not of this type, since most preferences are not based on fully rational beliefs. Accepting the dispositional account of autonomy also creates a potential problem in deciding which acts of an agent we should respect. There may be acts that are autonomous in the sense that they flow from the person’s authentic preference structure, but which at the same time will impair or destroy the person’s future disposi­ tional autonomy. Entering a religious sect that uses brain­ washing techniques or experimenting with addictive drugs could fit into this class of acts. Should we then respect the person’s present choice or should we respect and protect his or her dispositional autonomy (see also the section titled ‘Autonomy and Paternalism’)? Why Should We Value Autonomy? Autonomy plays an important role in applied ethics because it is usually assumed that we should show special regard for the autonomous choices of persons. There are, however, at least three fundamentally different ways of arguing for this claim. The first line of argument sees autonomy as the basis for moral standing and thereby as the necessary and perhaps sufficient condition for the ascription of rights. This line of argument is connected to the Kantian arguments outlined above, without necessarily being strictly Kantian. Modern forms of the argument will often begin with an analysis of rights that connects rights to interests in such a way that a being A can have a specific right X if and only if A has an interest I that is being protected or furthered by having the right X. The next step in the argument is then to show either that autonomy is a necessary condition for having the requisite kind of interests or that being autonomous is itself an interest of this kind. A common form of this argument states that we have a basic interest in shaping our own life and that being autonomous and having our autonomy respected are necessary conditions for our being able to fulfill this interest. A more direct link can be made by those rights theor­ ists who do not base rights on the protection of interests, but on the protection of choices. Here, protecting auton­ omous choices is the core function of rights. The second line of argument is basically consequenti­ alist and connected to the Millian arguments for the

importance of autonomy. Autonomy is here seen as a good thing, either in and of itself (as in some forms of objective list consequentialism), or more frequently because being autonomous promotes the creation of good things in the life of the person in question. Autonomy is thus valuable primarily as a means to the creation of that which is intrinsically valuable (e.g., pre­ ference satisfaction, and pleasure). The third line of argument proceeds from the premise that we are all moral strangers to each other. Each person has his own way of life and his own moral principles. Persons have no right to impose their way of life on others and have no right to limit the expression of other people’s way of living as long as it is not harmful to anybody. We cannot say whether autonomy in itself is valuable (because that would be to adopt the view of one specific moral community), but we have to respect the choices of others as a procedural constraint. This view has been employed in libertarian political philosophy by Richard Nozick in his Anarchy, State, and Utopia, it is part of the foundation of mainstream liberal political philosophy, and it has been employed in biomedical ethics by H. Tristram Engelhardt in his The Foundations of Bioethics. On this last line of argument, respect for autonomy will trump other moral considerations, and balancing between moral considerations will only be necessary where there is a conflict between the autonomous deci­ sions of a number of different persons. The first two lines of argument above however, do, not necessarily lead to respect for autonomy being the most important moral consideration, and there may be situations where respect for autonomy must be balanced against other considerations. All of these accounts have been criticized by Onora O’Neill in her work on trust and autonomy in health care. O’Neill claims that the current philosophically thin understanding of respect for autonomy as simply respect for the choices competent persons make is problematic because (1) it undermines the trust between patients and care-givers that is necessary for good health care, and (2) it is unjustifiable. The first quasi-empirical claim about the relationship between current understandings of autonomy and a possible decline in trust has been dis­ puted, and here we will only discuss the second claim. O’Neill thinks that a thin account of respect for autonomy is problematic because we know that competent people make choices that are not valuable, or as she puts it: Independent action can be important or trivial, heroic or brutal, helpful or selfish, admired or distressing to others. If we view individual autonomy as mere independence, its merits will be highly variable. (O’Neill, 2002: 25)

According to her analysis, we thus have no reason to protect or respect all autonomous choices, but only a

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subset of them. She identifies this subset with an account of autonomy she derives from Kant and that she calls principled autonomy. Persons act according to principled autonomy if they act in ways that they can will that all others act as well. It is, for O’Neill, only actions of this kind that are worthy of unconditional respect because they are autonomous acts. We may have other reasons for allowing people to act according to their mere choices, for instance, reasons derived from liberal political philo­ sophy, but we should not conflate these reasons with respect for autonomy. Autonomy in Specific Moral Frameworks A number of moral frameworks have been developed within modern applied ethics by philosophers trying to move from grand theory to frameworks that are more directly applicable to everyday moral problems. This development has been especially prominent in biomedi­ cal ethics. Respect for autonomy is an important moral principle in a number of these frameworks. Each of the four frameworks mentioned below could merit a paper in itself, but the treatment here will only briefly give an overview of the place of autonomy within each frame­ work. The four frameworks have been chosen partly because they are fairly well known by practitioners in the health care field, and partly because they have been extensively employed in the analysis of concrete pro­ blems in biomedical ethics. The first three frameworks are American, whereas the last is British. In the four-principles approach developed by Tom Beauchamp and James Childress in their book The Principles of Biomedical Ethics and popularized in Europe by Ranaan Gillon, respect for autonomy is one of four basic moral principles together with nonmaleficence, ben­ eficence, and justice. There is allegedly no lexical ordering of the four principles and moral decisions about specific cases is carried out by (1) identifying the relevant principles, (2) specifying how they apply to the current situation, and (3) balancing between the consid­ erations generated by step 1 and 2. From the examples given by Beauchamp and Childress, it is fairly clear that their principle of respect for autonomy trumps most other considerations, except perhaps where the principle of nonmaleficence is involved and where the harm done to others is direct and immediate. In Robert Veatch’s A Theory of Medical Ethics, he argues for a system containing five nonconsequentialist princi­ ples (contract keeping, autonomy, honesty, avoiding killing, and justice), and one consequentialist principle that he calls beneficence. He argues that the nonconse­ quentialist principles should be given joint lexical priority over the principle of beneficence, so that a duty of bene­ ficence first becomes operative if the demands of all nonconsequentialist principles have been fulfilled. In

this way, he claims to have solved the tension between Hippocratic individualism and the utilitarian commit­ ment to maximization. In this framework, respect for autonomy can therefore only be set aside if it is in conflict with one or more of the other four nonconsequentialist principles that Veatch identifies. The American philosopher Bernard Gert has devel­ oped a system of ten moral rules that he argues are prima facie binding for every rational creature. Over the years, this theoretical framework has been reworked several times, and Gert has given the final version in his 1988 book Morality – A New Justification of the Moral Rules. Gert’s fourth rule is Don’t deprive of freedom. According to Gert, this rule is intended to prohibit interference with the exercise of a person’s voluntary abilities and actions. The rule is therefore intended merely to protect the negative liberty of a person, and like Gert’s other rules, it can be overridden in conflict situations where other rules are involved. In his book Ethics: The Heart of Health Care, the British philosopher David Seedhouse develops a theory of health care ethics based on four core values: create autonomy, respect autonomy, respect persons equally, and serve needs before wants. According to Seedhouse, a conceptual analysis of health care shows that health care is centrally aimed at creating and recreating autonomy, as well as toward treating illness and disease as such. The pursuit of these goals is constrained by the need to respect the autonomy of persons and by the duty to respect them equally. According to Seedhouse, it is thus equally impor­ tant to promote autonomy as it is to respect autonomy, and respect for a person’s autonomous choices does not necessarily trump other considerations.

Autonomy and Paternalism The limits of our obligation to respect autonomous choices become important in the discussion of paternal­ ism in medicine and social policy. When are we justified in overriding the autonomous decisions of a person in order to benefit that person? On some derivations of the value of autonomy, the answer to this question is never. If either (1) we are truly moral strangers and therefore unable to speak with any justification about benefits for other persons or (2) every person is, as a matter of empirical fact, placed in the best position to decide what is a benefit to him or her, then paternalism is never justified. If, however, we accept either (1) that persons may not know what is best for them and that others may be in a better position to judge this or (2) that persons may not do that which is best for them even if they know what it is (e.g., they may suffer from weakness of will), then paternalistic action becomes an option.

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It is important to note that the central point of the paternalism discussion is the possible justification for overriding fully autonomous decisions for the benefit of the person in question. If the decision overridden is not fully autonomous, e.g., because the person is permanently or temporarily incapacitated, or the overriding act is not intended to benefit the person in question, the problem is not a problem of paternalism in the sense discussed here. It is obvious that whether or not it is possible to justify paternalism depends on the underlying justification for the importance of respecting autonomy. If the justification is consequentialist and respecting autonomy thereby a means to the creation of good con­ sequences, there will be cases where the consequences of respecting a given autonomous choice will be so bad for the person in question that paternalism is warranted. If, however, the justification for respect for autonomy is nonconsequentialist it will depend on the exact pre­ mises of the justification whether paternalism can ever be warranted. Finally, it is important to note that paternalism is not the only potentially illicit way of influencing the auton­ omous acts of other persons for their own benefit. The Finnish philosopher Heta Gylling has, for instance, described the practice of maternalism in health care, where acts are illicitly influenced by making the patients aware of the great sorrow and displeasure they create among the care-givers if they perform certain acts.

Critiques of the Emphasis on Autonomy Critiques of the emphasis on autonomy as a prerequisite for moral standing or respect for autonomy as the basic moral value have been raised by many very different groups of moral philosophers. The three main groups of critics have been (1) communitarians, (2) feminist ethi­ cists, and (3) European and other non-American ethicists. The communitarian critics have claimed that the emphasis on autonomy presupposes an atomistic indivi­ dualism, that is, a view of moral agents where they are seen as totally separate and not embedded in social rela­ tionships that precede their individuality. This rugged individualist is a myth and any moral theory building on this picture will be seriously flawed. Communitarian critics of autonomy often also point to the deleterious effects of too great an emphasis on respect for autonomy, which, on their view, will lead to a collapse of commu­ nities and eventually into a state not much different than the Hobbesian state of nature. Communities are held together by certain worldviews and ways of life, and they should be allowed to protect these by rules, even if these rules constrain the autonomous choices of members of the community.

The feminist critics claim that the emphasis on auton­ omy flows from a masculine tradition in moral philosophy, and builds on a neglect of the moral experi­ ences of women. The feminist critique often shares part of the arguments of the communitarian critique and adds a further set of observations about the importance of caring relationships for our understanding of the moral life. The masculine emphasis on rights and duties is seen as a truncation of the moral life that must be rectified by a new care-ethic that gives proper moral weight to relation­ ships. Such an ethic will focus not on the isolated individual and his or her rights and duties but on the individual within a set of caring relationships, and the emphasis on autonomy will be much less. The European and other non-American critics see the emphasis on respect for autonomy as a reflection of the American society and its values. This critique has mostly been directed against the four-principles approach of Beauchamp and Childress, which is very popular in bio­ medical ethics (see previous section titled ‘Autonomy in Specific Moral Frameworks’). It is claimed that although this theory of biomedical ethics mentions four principles (respect for autonomy, nonmaleficence, beneficence, and justice), it actually emphasizes respect for autonomy to the exclusion of other values. The four principles are explicitly developed as a common-morality theory, that is, a theory that takes its presuppositions from the com­ mon morality of a given society and aims at a coherent formalization of this common morality. Given that the four principles are derived from American common mor­ ality, it is therefore not strange that the principles of beneficence and justice are underdeveloped. Any com­ parison between the American health care and social security systems and the similar systems in other coun­ tries of comparable affluence shows that the American systems are considerably less just (except on a ultraliber­ tarian account of justice) and that a legalistic approach to decision making is much more prevalent. The whole derivation process of the principle of respect for auton­ omy therefore makes it doubtful whether the principle can be transferred to contexts outside of America if its content is not extensively redefined. It is not inconceiva­ ble that a balancing between respect for autonomy and justice would be different in societies where social soli­ darity and equality are more important parts of the common morality. Critics from outside of America also point out that the doctrine of informed consent in biomedical ethics (i.e., that no intervention can be carried out without the informed consent of the patient) may owe more to American law than to ethical analysis of the physician– patient relationship and of patient autonomy. The doc­ trine seems to follow immediately from the principle of respect for autonomy, but it is questionable whether most of the decisions made by patients are really autonomous.

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Conclusion and Further Problems Despite the critiques outlined above, there is no doubt that autonomy as a necessary prerequisite for moral standing and respect for autonomy as a core moral prin­ ciple plays a large role in modern applied ethics. There are, however, three areas in applied ethics where the emphasis on autonomy creates philosophical problems that have not yet been solved. These are: 1. Autonomy and free will; 2. Animal ethics; and 3. Environmental ethics. Autonomy and Free Will To say that autonomy is important in the evaluation of moral acts or that autonomous choices should be respected seems to require either the existence of free will (i.e., determinism regarding mental events is false) or the acceptance of compatibilism (i.e., the acceptance of determinism combined with the further claim that this does not preclude free will, and thereby does not pre­ clude the moral evaluation of acts). If determinism is true, then all mental events and thereby all acts are caused in the same way as other natural events, and this initially seems to imply that the class of autonomous acts (i.e., acts chosen by free will) is empty. A compatibi­ list will usually deny this implication by trying to show that the kind of free will that is necessary for autonomy is not the same kind of free will as is precluded by determinism. It is, however, still doubtful whether a compatibilist program can succeed. Another possible solution to the problem is to claim that moral evaluation is possible even if determinism is true and compatibilism false because our reactive moral attitudes toward others do not in any way depend on the truth or falsity of determinism. Even if all acts are determined through normal chains of physical causation, we would still be justified in feeling moral resentment toward certain kinds of acts, because these moral feelings are based on the nature of human community and interpersonal relation­ ships. This solution makes the question of moral responsibility independent of the problem about free will and turns the assessment of autonomy into a moral judg­ ment. Such an argument could be further supported by noting that the concepts free will and moral judgment belong to two different language games and that the pro­ blem is caused only by mixing these two language games. Autonomy and Animal Ethics Many animals have preferences. These are expressed in various actions such as seeking out specific locations, or specific sources of food, and in avoiding noxious stimuli of

various kinds. But is this sufficient for animals to be autonomous beings with a claim to moral status based on their being autonomous? The answer to this question obviously depends on whether the kind of autonomy that commands moral respect is first-order/preference or second-order/dispo­ sitional autonomy. There is fairly widespread agreement that at least the capability for second-order reflection is a prerequisite if the autonomous choices of a person shall generate a claim to moral respect. If this is accepted only very few kinds of animals would be able to command moral respect based on the fact that they are autonomous beings in the requi­ site way. This does, obviously, not preclude that animals may have moral status for other reasons, or that there are things that it will be wrong to do to animals (e.g., causing them pain).

Autonomy and Environmental Ethics The problems inherent in making autonomy a necessary condition for moral standing are even more acute within the field of environmental ethics than within animal ethics. Very few theories of autonomy will allow for autonomy in plants or in the nonanimate environment. The concept of autonomy is inextricably linked to the concept of action, and it seems almost senseless to attribute autonomy to entities that do not and cannot act. The environment can therefore not have moral value in itself but only if it is valued by some autonomous agent. This is unsatisfactory for many of those interested in environmental ethics, and it is characteristic of this field that philosophers try to develop moral theories that do not rely on autonomy as a prerequisite for having intrinsic moral value. These theo­ retical developments are outside the scope of this article. Another topic in environmental ethics where autonomy becomes potentially relevant is in the treatment of the rights of future generations of autonomous beings. It has been argued that changes we now make to the environment affect the possibility for autonomous choice of future gen­ erations. This argument does, however, require the premise that we should not only respect whatever auton­ omous choices people make, but that we should also enable them to make autonomous choices by not restricting their opportunity range. It is doubtful whether this premise can be supported in a way that will make it useful in the argument, and it requires further argument to show that we do not only change but also diminish the opportunity range of future generations by our current actions.

See also: Informed Consent; Kantianism; Principlism; Research Ethics, Clinical; Utilitarianism.

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Further Reading Christman J (2009) Autonomy in Moral and Political Philosophy. Stanford Encyclopedia of Philosophy.http://plato.stanford.edu/ entries/autonomy-moral/ (accessed July 2010). Dworkin G (1978) Moral autonomy. In: Engelhardt HT and Callahan D (eds.) Morals, Science and Sociality. Hastings on Hudson: The Hastings Center. Dworkin G (1988) The Theory and Practice of Autonomy. pp. 156–171. New York: Cambridge University Press. Dworkin G (1993) Autonomy. In: Goodin RE and Pettit P (eds.) A Companion to Contemporary Political Philosophy, pp. 359–365. Oxford: Blackwell. Hill TE (1991) Autonomy and Self-respect. New York: Cambridge University Press. Kant I (1994) Grundlegung zur Metaphysik der Sitten, 7th edn. Hamburg: Felix Meiner Verlag. Lindley R (1986) Autonomy. London: Macmillan Education. Mill JS (1910) Utilitarianism, On Liberty, and Considerations on Representative Government. London: Dent.

O’Neill O (2002) Autonomy and Trust in Bioethics. Cambridge: Cambridge University Press. Schneewind JB (1997) The Invention of Autonomy: A History of Modern Moral Philosophy. Cambridge: Cambridge University Press. Young R (1986) Personal Autonomy. New York: St. Martin’s Press.

Biographical Sketch Søren Holm is Professor of Bioethics at the Centre for Social Ethics and Policy and the Institute for Ethics, Science and Innovation in the School of Law of the University of Manchester. He also holds at part-time Chair in Medical Ethics at the Section for Medical Ethics, University of Oslo. He is trained as a medical doctor and philosopher.

B

Benefit Sharing D Schroeder, University of Central Lancashire, Preston, UK, and University of Melbourne, Melbourne, VIC, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Benefit sharing The term describes an exchange between those who grant access to a particular resource and those who provide compensation or rewards for its utilization. Commodification An entity is being commodified when it is suddenly seen in economic terms and was previously considered outside of the monetary realm. Common heritage Resources referred to as the common heritage of humanity do not belong to any

Introduction Benefit sharing is a technical term used in the context of access to and utilization of biological resources. The term describes an exchange between those who grant access to a particular resource and those who provide compensa­ tion or rewards for its utilization. For instance, in 2004, a 10-year benefit sharing agreement was concluded between an Ethiopian research institute and a Dutch health and food company. As a result, the Dutch company obtained access to an Ethiopian cereal crop (Eragrostis tef ), which might lead to commercially interesting gluten-free products for the European market. In turn, the Ethiopian institute will obtain royalties and financial support for local farming communities. One may ask, why should scientists ask permission before using food crops or other biological resources in their research? Why should they have to share any ben­ efits with local populations? Are researchers not involved in activities for the benefit of humankind, using resources belonging to our common heritage? This article explains how discussions concerning biodiversity loss and the exploitation of developing countries led to the adoption of the Convention on Biological Diversity (CBD) in 1992. The CBD gives sovereign rights over nonhuman biologi­ cal resources to nation-states and requires both prior

particular nation state but are held in trust for humankind and future generations. Convention on Biological Diversity (CBD) An international, legally binding treaty that aims to halt and reverse the loss of biodiversity. Benefit sharing is one of its main objectives. Post-study obligations A duty to provide human research participants with access to a beneficial health care intervention (or alternative benefits) after a study has been concluded.

informed consent from and benefit sharing with local populations. In addition, benefit sharing requirements for human biological resources (e.g., DNA or blood sam­ ples) are discussed. The history of the concept is followed by an overview of legal instruments requiring benefit sharing, five case studies, and some current challenges to its implementation.

Brief History Until the late twentieth century, access to biological resources was frequently regarded as a free-for-all. Typically, botanists or researchers from the North would obtain biological samples from countries in the South and use this biodiversity in scientific studies and product devel­ opment. They were thus able to take resources out of their natural habitats without obtaining consent from, or sharing benefits with, states or local communities. From the early 1970s, this approach to resource use across international borders was criticized heavily by activists throughout the world, with Vandana Shiva, Pat Mooney, and Gurdial Singh Nijar being some of the most prominent. They criticized not only the exploitative nat­ ure of taking resources without returning benefits but also

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238 Benefit Sharing

the related injustice of obtaining monopoly control over foreign resources through the international patent system. For example, the neem tree has been used in tradi­ tional medicine in India, Sri Lanka, and Burma for hundreds of years. Yet, an international agrochemical business filed for a patent based on the neem tree’s med­ icinal properties, involving samples from India, without disclosing this history of prior use. In 2005, Vandana Shiva and her supporters famously won a 10-year legal battle to revoke the patent. Before concerns regarding such exploitative use of developing country resources led to the adoption of the CBD, a different kind of benefit sharing was envisaged. Instead of relying on a vague common heritage principle that often was equated with a free-for-all on a first-come– first-served basis, the United Nations brokered two trea­ ties on resource use, which specified that all of humanity had to benefit. Both the UN Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) and the UN Convention on the Law of the Sea (1982) made a fair common heritage principle explicit. These treaties declared that the seabed, the ocean floor, the subsoil thereof, as well as the surface and the subsurface of the moon shall not become the property of any state, organization, or individual. Instead, the use of their potential resources must be carried out so as to benefit humankind as a whole. Evidently, one can only find nonhuman biological resources on the moon, the seabed, and the ocean floor. However, the same principle, namely that certain biological resources belong to humanity as a whole and must therefore be used for the benefit of all, was appealed to by the Human Genome Project’s Ethics Committee (HUGO) in 2000. In its Statement on Benefit Sharing, the committee recommended that profit-making entities using human genetic resources should dedicate 1–3% of their annual net profits to huma­ nitarian efforts, particularly related to the health care sector. As a result, access to a useful resource (human genes) would be acknowledged through general benefits that would flow back into local communities. To date, there are no signs that the previously men­ tioned recommendations have been noted by research institutions. Also, in the 1990s, the Clinton administration undermined the explicit common heritage approach to resource use with a superseding agreement that opened seabed resources on a first-come–first-served basis with­ out benefit sharing requirements.

Legal Instruments Plants, Animals, Microorganisms, and Traditional Knowledge The main response of the international community to concerns about the exploitation of developing country

resources is the CBD, adopted at the Earth Summit in Rio de Janeiro, Brazil, in 1992. The adoption of the CBD is one of the great policy success stories of the twentieth century. A total of 193 parties have signed this broad and participatory convention after exceptionally wide pro­ cesses of consultation. Currently, only Andorra, Holy See (the Vatican) and (notably) the United States are not party to it. This global convention aims to achieve three objectives: 1. The conservation of biological diversity. 2. The sustainable use of its components. 3. The fair and equitable sharing of the benefits arising out of the utilization of genetic resources. These three goals are closely interlinked. The CBD regards the conservation of biological diversity as a com­ mon concern of humankind. Biodiversity is important, among other things, to secure food supplies, sources of medicines and energy, and ecological balance. However, the twentieth century witnessed the disappearance of species at 50–100 times the natural rate, and the figure is predicted to rise. This threat is partly related to a fourfold increase in human numbers and partly to the 18-fold increase in industrial production during the past century. To counter this threat and enable access to biodiver­ sity for sustainable use (the second CBD goal), benefit sharing is essential. It is one thing to look after a resource for the general benefit of humankind and quite another to do so when one stands to benefit oneself. By giving a large stake in the benefits that flow from natural resources to their custodians, one may hope to preserve the planet’s biodiversity better than before. In addition, in the context of increasing criticism from developing countries regarding the exploitation of their biological resources, it is much more likely that access for use will be granted if developing countries’ concerns are addressed satisfactorily through access and benefit shar­ ing agreements. Consequently, the third objective of the CBD – the fair and equitable sharing of benefits from the use of genetic resources – is instrumental in achieving the first two goals. How are the aspirations of the CBD being realized? According to the preamble of the CBD, nonhuman bio­ logical resources fall under the national sovereignty of states. This means that plants, animals, microorganisms, and traditional knowledge fall under the decision-making powers of national governments. Based on the sovereignty principle, each CBD party agrees to develop and imple­ ment national laws to govern access and benefit sharing of nonhuman biological resources. For instance, on May 31, 2004, the South African president signed into law South Africa’s Biodiversity Act. The Act established the South African Biodiversity Institute tasked to monitor national biodiversity; it set up

Benefit Sharing

a permit system to provide access to resources to inter­ ested applicants; it prescribes minimum requirements for benefit sharing agreements; and it outlines the Minister of Environment’s relevant responsibilities. Similar binding national legislation has been signed into law by many, but not all, CBD parties. In this process, national governments were aided by the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of Their Utilization. These facilitating guidelines were agreed by CBD parties at a meeting in Bonn, Germany, in 2002. There is one major drawback when binding, interna­ tional legislation mostly relies on the executive powers of national governments, and it is most pronounced in the context of the CBD. This drawback is achieving compli­ ance. The CBD was established in response to crossborder transfers of resources and the potential for exploi­ tation. It is not difficult to imagine how easily, for instance, plants and seeds can be moved across borders without consent or agreed benefit sharing terms. In effect, the CBD relies to a large extent on the integrity of researchers, the vigilance of nongovernmental organiza­ tions (NGOs) and the interest of national and international media in biopiracy claims. In an attempt to achieve compliance with the CBD, several developing countries, led by India and Brazil, have been lobbying for mandatory disclosure of the source and origin of genetic resources and traditional knowledge in patent applications. This would mean that every patent application in countries throughout the world would con­ tain confirmation that the nonhuman biological materials used in any new invention were obtained in compliance with the CBD. Such documentation would show that con­ sent had been obtained from local governments and that terms had been agreed on benefit sharing. The disclosure suggestion has been debated for more than 10 years at the World Trade Organization, and strong opposition from a group of industrialized countries led by the United States has not diminished. As a result, the compliance issue remains unresolved, and it is widely argued that this makes the international patent system incompatible with the principles of the CBD.

Human Biological Resources In 1995, 3 years after its adoption, CBD negotiators decided to exclude human biological resources such as blood or DNA samples from the convention’s scope, and human biological resources are not governed by any equivalent, binding international regulations. As noted previously, the HUGO Ethics Committee’s Statement on Benefit Sharing recommended that 1–3% of profits from users of human genetic resources should be used for humanitarian purposes. However, few, if any,

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researchers or commercial entities have followed this recommendation. Today, the main approach to benefit sharing for pro­ viders of human biological resources such as DNA or blood samples is the prescription of post-study obliga­ tions. Essentially, post-study obligations describe a duty to provide human research participants with access to a proven beneficial health care intervention after a study has been concluded. This means that in return for con­ tributing to medical research, the research participants are meant to obtain access to any resulting products or interventions as a form of benefit sharing. Alternative benefits are also feasible, depending on local circum­ stances and in case post-study access cannot be provided or is less meaningful than other benefits. Several organizations have emphasized post-study obligations in their guidelines. The most prominent of these is the World Medical Association (WMA). The WMA’s Declaration of Helsinki was first issued in 1964 and was last updated in 2008. Article 14 of the Declaration of Helsinki reads as follows: The protocol should describe arrangements for poststudy access by study subjects to interventions identified as beneficial in the study or access to other appropriate care or benefits.

It is therefore a clear requirement that all medical research involving human subjects that needs approval from a rele­ vant ethical review body should describe post-study access to successfully tested interventions or other benefits in the study protocol. Hence, researchers must give consideration to post-study obligations prior to obtaining approval for a study. However, this formulation gives rise to a serious concern, namely that compliance with this article means that any arrangement for post-study access would suffice, as long as it was detailed in the study protocol. At its extreme, even the sentence ‘There are no arrangements for post-study access’ could be regarded as compliance because as long as study participants and ethics review bodies know that there is no provision for post-study access, compliance with Article 14 would have been achieved. Hence, this obligation could be called informa­ tional rather than substantial, in which case the wider demand for benefit sharing has not been observed. This concern is mitigated through Article 33 of the Declaration, which reads as follows: At the conclusion of the study, patients entered into the study are entitled to be informed about the outcome of the study and to share any benefits that result from it, for example, access to interventions identified as beneficial in the study or to other appropriate care or benefits.

Post-study obligations are therefore a substantial rather than an informational demand for all medical

240 Benefit Sharing

research involving existing patients. This still seems to leave healthy volunteers, including donors of human biological samples, potentially excluded from any post-study benefits. They do not need to be given access to interventions identified as beneficial in a study or other appropriate benefits. As a result, benefit sharing would only have to be practiced with patients rather than all those involved in medical research. This would seem contrary to the spirit of benefit sharing, which aims to reward ‘resource providers’ in particular in order to avoid concerns about exploita­ tion. It seems inequitable (to say the least) to use human biological resources from, for instance, impo­ verished Nairobi slum sex workers (see case study below) to develop medical interventions for people in rich countries only. It is in this context that demands for benefit sharing were originally raised, before the CBD was adopted. The Declaration of Helsinki has an indirect answer to this dilemma with Article 17: Medical research involving a disadvantaged or vulnerable population or community is only justified if . . . there is a reasonable likelihood that this population or community stands to benefit from the results of the research.

This means that when ethics review bodies are pre­ sented with proposed studies on vulnerable groups that do not fall under the label ‘patients,’ they still need to make sure that the research population or the wider community stand to benefit from the research. Hence, a study protocol that notes that there is no provision for post-study access or alternative benefits is unethical according to Article 17 (rather than Article 14) if it involves vulnerable populations such as the Nairobi slum sex workers. The latest Declaration of Helsinki is therefore comprehensive in its benefit sharing clauses, if somewhat intricate. Table 1 gives a summary of benefit sharing require­ ments for research involving human participants.

Types of Benefits Benefit sharing in the context of the CBD is often assumed to mean royalties from marketed products. Likewise, benefit sharing in the case of post-study obliga­ tions is normally assumed to mean access to marketed products. However, in both areas, alternative benefits are feasible. Under the CBD, benefits are usually negotiated on a case-by-case basis. Hence, there are no legal require­ ments for any particular benefit; outcomes depend on the particular negotiations. Likewise, the Declaration of Helsinki and similar guidelines recognize that in some cases alternative benefits might be more appropriate than access to successfully tested interventions. Otherwise, research participants involved in studies that do not lead to a product would not benefit at all. The following (nonexhaustive) list gives examples of standard benefits that satisfy benefit sharing requirements in addition to royalties and post-study access to products: to participants • Feedback Health information • Access to health carecampaigns • Support for local health services, including health • infrastructure to scientific and technological knowledge • Access Capacity-building local researchers • Patent (co)rights forforlocal researchers •

Case Studies Kalahari Hoodia The best known benefit sharing case to date is the socalled San Hoodia case. The San peoples, also known as Bushmen of the Kalahari, are the oldest human inhabi­ tants of southern Africa. For thousands of years, they lived as the sole occupants of an area stretching from the Congo–Zambezi watershed to what is now Cape Town. After centuries of genocide and marginalization imposed

Table 1 Main guidelines on benefit sharing with human research participants

Year issued

Benefit sharing

Guideline

Issuing body

International Covenant on Economic, Social and Cultural Rights Declaration of Helsinki

UN General Assembly

1966

Article 15(b)

World Medical Association

1964/2008

International Ethical Guidelines for Biomedical Research Involving Human Subjects Convention on Human Rights and Biomedicine Statement on Benefit Sharing

Council for International Organizations of Medical Sciences Council of Europe HUGO Ethics Committee

1982/2002

Universal Declaration on Bioethics and Human Rights

United Nations Educational, Scientific and Cultural Organization

Articles 14, 17, and 33 Guidelines 5(12), 10, 21 Preamble Entire document Article 15

1997 2000 2005

Benefit Sharing

by colonialists, they now number approximately 100 000 people in Botswana, Namibia, South Africa, and Angola. Their current lives are characterized by abject poverty. However, they still possess traditional knowledge cover­ ing the biodiversity of southern Africa. This includes knowledge about the appetite-suppressant and thirstquenching properties of the Hoodia succulent – a plant used as a substitute for food and water when hunting. In 1963, a South African research institute, the Council for Industrial and Scientific Research (CSIR), developed an interest in the plant. However, it was unable to analyze the plant’s molecular structure until the mid-1980s, when it acquired high-field nuclear mag­ netic resonance spectroscopy equipment. In 1995, after successfully isolating the appetite-suppressant proper­ ties, the CSIR filed for a patent. In the same year, South Africa became a party to the CBD. This meant that those using the traditional knowledge needed to obtain con­ sent from its holders and negotiate a benefit sharing agreement with them. However, the CSIR never made contact with the San. Instead, it sublicensed its ‘discovery’ to firms in Europe and the United States for significant fees. A vigilant local NGO, Bio-Watch, eventually informed San leaders that their traditional knowledge had been used in a patent application and that they could either challenge the patent or demand a benefit sharing agreement. They chose the latter option. In March 2003, the San and the CSIR signed a historic agreement that will give the San 6% of all CSIR royalties received from license holders and 8% of all milestone payments. Milestone payments have already been received. However, Pfizer and Unilever, two high-profile sublicensees, have both dropped their Hoodia product development, and the future of this high-profile benefit sharing agreement is uncertain. This case study shows that even highly celebrated cases have not necessarily led to reliable income flows from benefit sharing contracts based on traditional knowl­ edge and related plant resources.

Highland Chiapas, Mexico The Maya civilization in southern Mexico and Central America peaked in approximately the year 1000, before Spanish colonizers devastated the culture in 1500. The indigenous Maya had to flee into marginal territories during the invasion or were used as servants on Spanish haciendas. Since constitutional reform in 1917, the land rights of the original occupants have been officially recog­ nized. However, today, approximately 900 000 people speaking four Maya languages live in the Highland Chiapas area of Mexico, a militarized, volatile zone with extreme levels of poverty.

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In 1998, a 5-year biodiversity research project began in the Highlands, a region well-known for its richness in biodiversity. The project was funded through a consor­ tium of U.S. federal agencies (the International Cooperative Biodiversity Group). It aimed to model best practice in bioprospecting in an uncertain political climate. For instance, the local indigenous Maya people were meant to be involved directly in the research as well as being envisaged as major beneficiaries of it. The project was led by an experienced, U.S.-based professor of anthropology who had been conducting research among the Maya for 40 years. The local partner was the Mexican research and graduate teaching center, El Colegio de la Frontera Sur. The commercial arm of the project was a small natural products discovery company called MolecularNature Limited, based in the United Kingdom. Benefit sharing revenue was meant to flow through a fourth organization called PROMAYA (Promotion of Intellectual Property Rights of the Highland Maya of Chiapas, Mexico), a nonprofit organi­ zation established to administer the indigenous community’s portion of 25% of pharmaceutical profits. However, revenue for PROMAYA to distribute never materialized, and its members never met, because the project faltered before its activities were required. Some of the reasons that led to the project’s abandonment in 2001 were as follows: 1. The Maya population had no formal body to repre­ sent its collective interests in the region. This led to significant difficulties later on, when the project was cri­ ticized for not obtaining consent comprehensively, despite considerable efforts (e.g., iterative consent, a play in native languages explaining the project, and visitors taken on tours of the herbarium and the laboratories). 2. Existing domestic regulatory frameworks were inadequate. Whereas legal provisions were available for the collection of plant material for scientific purposes, none existed for the collection of material for potential commercial exploitation. 3. National and international concerns about cultural erosion and incompatibility of value systems were voiced. After consultations between local Maya NGOs and RAFI (now Action Group on Erosion, Technology and Concentration, an international NGO opposing biopros­ pecting), the case became known worldwide. RAFI expressed international and indigenous concerns that local values were eroded when marketing, privatization, and individualization of knowledge took place in a con­ text in which communities reject intellectual property rights. This case study shows that even the best intentions are not sufficient for successful benefit sharing, particularly when representation issues are not resolved and the legal situation is uncertain.

242 Benefit Sharing

Kani–Jeevani, India In 1987, a group of Indian scientists launched an expedi­ tion into the forests of the Agasthyar hills in Kerala, southern India, the living territory of the indigenous Kani community. The expedition was accompanied by three Kani guides. Within days, the scientists realized that the guides felt less fatigued than the scientists. Following further observations and inquiries, they realized that the vitality was imparted by fruits the Kani were chewing. They took samples of the fruit and other parts of the plant for phytochemical and pharmacological studies at a regio­ nal research laboratory. Further investigations confirmed the presence of active molecules with immuno-enhancing and anti-fatigue properties. The plant was identified as Trichopus zeylanicus travancoricus, which the Kani call Arogyappacha (source of evergreen health). Further research was outsourced to the Tropical Botanic Garden and Research Institute (TBGRI) in Thiruvananthapuram, Kerala. In 1994, a product called Jeevani was ready for marketing. In 1996, the technology was transferred to Arya Vaidya Pharmacy (AVP), one of the largest Ayurvedic manufacturing companies in India. The TBGRI proposed to share the achieved license fees and royalties with the Kani on a 50:50 basis. In 1997, the Kerala Kani Community (Samudaya) Welfare (Kshema) Trust was registered to handle incoming funds. The trust has received constant income ever since, and a number of development projects have been funded from it. At first sight, this sounds like a success story of benefit sharing. However, this case has been criticized, not for its individual achievements, but because the CBD itself has been viewed by some as a tool to legitimize biopiracy. It is alleged that rather than facilitating justice between pro­ viders and users of biodiversity, the CBD strengthens the exploitation aspect of resource transfer, and only leaves crumbs on the tables of the providers. In addition, the CBD is alleged to impose a Western system on indigen­ ous peoples to achieve benefit sharing despite highly incompatible cultures.

Indonesia and Avian Flu Avian (or bird) flu is a contagious viral disease, most likely to affect birds but also less commonly pigs. Rarely, the virus can cross the species barrier and infect humans. The most dangerous form of avian flu spreads very rapidly and can cause almost 100% mortality among birds within 48 h. The disease became an international problem in the late 1990s, and human deaths tolls were worst in Indonesia, followed closely by Vietnam. To keep avian flu and similar diseases under control and avoid a pandemic, the World Health Organization (WHO) collects virus samples for distribution to pharma­ ceutical research units in an effort to develop vaccines

targeted to specific strains. In 2006, the Indonesian gov­ ernment decided to withhold its avian flu samples from WHO. The Indonesian Ministry of Health argued that even though Indonesian samples were crucial to the development of vaccines, the results of vaccine research would be unaffordable to its citizens. In an appeal to the Indonesian government, the WHO Director-General said that cooperation is paramount to combat a pandemic and that international public health concerns give national governments special responsibil­ ities. However, the Indonesian government responded that the CBD gives sovereignty over biological resources to national governments, a principle that the government executes on behalf of its population. After time-consum­ ing negotiations, the Indonesian government has resumed sending occasional virus samples to WHO, and WHO has committed itself to creating a global stockpile of pan­ demic vaccines for developing countries. The case was much debated worldwide, partly because whereas bird samples fall under the CBD, human biolo­ gical samples do not, and partly because commentators were divided on Indonesia’s course of action. Some con­ sidered it a perfectly justified move to counter the exploitation involved when a poor country provides essential leads toward vaccine development from which only rich countries will benefit. Others emphasized that Indonesia’s actions amounted to blackmail and risked global public health. This case shows that despite their exclusion from the CBD, human biological resources cannot be excluded from access and benefit sharing discussions in the long term. Increased concerns about exploitation will require a response both from a justice standpoint and to secure future access to vital samples. Nairobi Slum Sex Workers A slum area in Nairobi – Majengo – is one of the most illuminating locations for the exploration of benefit shar­ ing frameworks for human biological samples. In 1982, a clinic to investigate the natural history of sexually trans­ mitted diseases was established in this slum. In 1986, studies focusing on HIV/AIDS commenced with particu­ lar emphasis on potential resistance to the virus. It appeared that approximately 5% of the 3000 sex workers did not contract the virus, despite frequent, unprotected sex with HIV-positive men. Since 1998, the main aspira­ tion of the clinic’s studies has been the development of an HIV vaccine. The only way to access the clinic and its health ser­ vices is by enrolling in its research programs. The Majengo sex workers often have no other income or support, live in small tin shacks, work well into middleage, and have dozens of clients every day because pay­ ment from each is very low. They belong to an extremely

Benefit Sharing

socioeconomically disadvantaged group, who would be unable to access health care or essential medicines in any other way. In return for biological samples, the clinic provides health monitoring and health education as well as treatments for all health conditions, irrespective of whether they are work-related or not. The Majengo sex workers are an important sample case in benefit sharing considerations. On the one hand, if an AIDS vaccine were developed based on their sam­ ples, it could lead to a blockbuster success. If this were the case, how should they be rewarded? On the other hand, they are provided with health care over decades, in some instances, which one may reasonably consider as repre­ senting alternative benefits according to the provisions of the Declaration of Helsinki.

Challenges The CBD has been in force since December 29, 1993. This has been a considerable length of time, but there are still serious challenges, particularly associated with tradi­ tional knowledge holders. The following sections outline the main challenges and potential responses, and then human biological resources and post-study obligations are discussed. Opposition to the Commodification of Traditional Knowledge The CBD covers plants, animals, microorganisms, and the traditional knowledge of indigenous communities. The latter can only be used in product development or research with the permission of the community and agreed benefit sharing arrangements. However, it has been argued that this forces indigenous communities, which might still live hunter–gatherer lifestyles, into the Western money econ­ omy. Opposition to the Kani, Chiapas, and Hoodia cases has been expressed in these terms. Since Ancient times, philosophers have argued that some entities are commodifiable (i.e., exchangeable for money), whereas others are not. Most famously, Immanuel Kant asserted that a human being is exalted above any price and must never be used only as a means to the ends of others. However, which entities or actions are beyond any price is still contentious today. Kidneys? Surrogate motherhood? Embryonic stem cells? For some, traditional knowledge belongs to the group of entities that should never be traded or commodified. The commercial use of indigenous knowledge or heri­ tage by outsiders has, in this context, been called a sacrilege. It has even been argued that fair and equitable benefit sharing is impossible under the CBD, which alleg­ edly privatizes nature and hands over traditional knowledge for appropriation through the patent system.

243

On the other hand, it is important to remember that developing country governments such as that of India, which have strong and effective protection mechanisms for their indigenous populations, lobbied strongly for the CBD. The Hoodia case illustrates the difficulties the San faced when deciding whether or not to commodify their knowledge. The route of signing a benefit sharing agree­ ment involved an implicit acceptance of the patent and thus of the commodification of their knowledge. In the end, they made the decision to start negotiations in order to share in the benefits, given that these might improve their own and their children’s economic situation. Knowledge has been traded for millennia without being considered non-commodifiable. It is important to note that it is not for outsiders to decide whether tradi­ tional knowledge should be commodified in particular circumstances or not. This decision has to rest with those directly concerned but with the assurance of suffi­ cient time to gather necessary information, build capacity and knowledge, and thus act appropriately and indepen­ dently. Decisions regarding the advantages and disadvantages of commodification are local choices that cannot be made universally. However, communities that categorically reject the possibility of sharing their knowl­ edge need to be assured that they will be heard. Hence, it is paramount to take seriously and strengthen the CBD’s provisions for prior informed consent. Difficulties in Obtaining Prior Informed Consent Realizing the full potential of prior informed consent to end the exploitative use of biological resources and tradi­ tional knowledge is an enormous challenge. As the Hoodia case has shown, no effort was made to obtain consent from the San before using their knowledge in research leading to a patent. Understandably, this created serious disso­ nance between the parties from the start and could well have led to a challenge of the patent. However, even the most sincere and painstakingly planned efforts to obtain prior informed consent can fail and lead to unwanted, unforeseen complications, as shown in the Chiapas case. Some progress could be made on developing and improving prior informed consent procedures through learning from the medical context. For instance, the prac­ tice of involving an intermediary between researcher and research participant ensures that information is conveyed in a relatively neutral manner. However, the analogies between obtaining consent for a medical procedure and obtaining prior informed consent to access traditional knowledge and nonhuman biological resources fail in other areas. Importantly, obtaining consent for access to traditional knowledge is not a relatively quick, one-off process but, rather, an iterative, progressive development, which benefits significantly from collaboration with local

244 Benefit Sharing

intermediaries and support organizations. In addition, the identification of who can give consent legitimately – hardly an issue in the medical context – can appear as an almost insurmountable obstacle within the context of the CBD as the next challenge demonstrates.

Who is a Legitimate Decision Maker? In the Hoodia case described previously, it was noted that the San number approximately 100 000 people in Botswana, Namibia, South Africa, and Angola. To be compliant with the CBD, the research company that filed a patent application for the appetite-suppressant properties of Hoodia would have had to identify legitimate representatives of this group who were able to process and ratify contractual agreements. The assumption that tradi­ tional knowledge holders are identifiable, organized, coherent, and able to enter into such negotiations, leading to agreements, has been proven wrong in many cases. In fact, this case seems to be the exception rather than the rule. Had the San not organized themselves prior to the Hoodia case in order to reclaim land from the Mandela government, they would have been in no position to debate collective agreements. However, even when decision-making structures are appropriate for negotiations, there are additional chal­ lenges. For instance, if only a part of a community holds the traditional knowledge (a particular family or a group of traditional healers), should only they be approached, or the entire community? The Australian experience of negotiating access to mining lands with Aboriginals hold­ ing ancestral claims has shown that such situations can lead to serious tensions within communities. Likewise, what happens if several communities can show evidence of being traditional knowledge holders? For instance, the Nama tribe of Namibia contested the Hoodia benefit shar­ ing agreement because it also holds knowledge of the appetite-suppressant qualities of the succulent. An arrangement has subsequently been reached between the San and the Nama, but such disagreements may not always be resolved so smoothly. As a result of difficulties in identifying legitimate decision makers, and fears of biopiracy claims, researchers and companies have now stepped back from research involving traditional knowledge, mean­ ing that a valuable source of, for instance, medical knowledge remains unused in science. To resolve this issue, national governments need to establish clear information channels to inform researchers about the authorities that should be consulted to obtain permits and the procedures to be followed, including informa­ tion on how to approach traditional knowledge holders under their jurisdiction.

Unrealistic Expectations The expectations of local communities regarding the benefits they might derive from sharing their resources can go from millions of dollars on one day to very little or nothing the next day, when patent or license holders abandon research. This has happened twice in the Hoodia case, when Pfizer and later Unilever dropped Hoodia from their portfolios. Of course, expectations can be groundless from the start in cases in which benefits are restricted to product royalties. From bioprospecting to products on shelves is a very long process, and the chances of arriving at the goal are very small. It is therefore essential that the information shared during the application for consent procedure is realistic and conveys the likelihood of commercial success appropriately.

Implementation Problems for Post-Study Obligations Post-study obligations have been part of the Declaration of Helsinki since 2000, but they are still very contentious. The arguments in favor of such obligations focus mainly on the threat of exploitation when research participants accept inconvenience or risks for the general advance­ ment of medical progress but cannot expect anything in return. In this context, there is a massive gap between developed countries and developing countries. With the exception of the United States, national health services in developed countries generally provide access to success­ fully tested health interventions. Hence, it is highly unlikely that a study subject will contribute to the devel­ opment of a drug but not have access to it at need. The same cannot be said for developing country research participants. Participating in a research study might be their only way of obtaining health care in the first place, as in the Majengo case discussed previously. Furthermore, once the researchers are gone, the partici­ pants are left without any access to health care, including potentially the intervention(s) they helped bring to mar­ ket. This has been considered exploitative. It has also been argued that such abandonment of participants or communities will result in a general loss of trust between research participants and researchers, leading to a com­ munity’s unwillingness to participate in future studies. Against post-study obligations, it has been noted that researchers are scientists, not health care specialists. To impose potentially unreasonable demands on researchers or their sponsors to meet health needs, which should be addressed locally, would simply deter them from under­ taking important studies in the first place. To date, many issues concerning post-study obliga­ tions have not been clarified. With the exception of national regulations in India, Brazil, South Africa, and Uganda, no enforcement mechanisms exist for post-study

Benefit Sharing

obligations. Likewise, it is unclear whose duty it is to provide post-study access to health care interventions. Do researchers have this obligations or their sponsors/ funders? Another area of concern is the potential impact that benefit sharing requirements in the form of poststudy obligations could have on publicly funded research, for instance, by university scientists. They might not be in a position to use income derived from research for redis­ tribution to research participants. Post-study obligations are still a relatively new area within medical research. It is therefore essential that examples and models of good practice are identified and widely disseminated.

Conclusion The CBD and post-study obligations represent a new direction in international law. Their benefit sharing requirements show aspirations toward a more equitable international order. The use of developing country resources and/or developing country research partici­ pants without adequate return is exploitative. Although benefit sharing may increase the bureaucratic burden on scientific research, it can be more than justified in the context of rapidly depleting biodiversity and significant human suffering from extreme poverty. See also: Altruism and Economics; Biobanks; Developing World Bioethics; Development Ethics; Exploitation; Global Ethics, Overview; Indigenous Rights; Intellectual Property Rights; Justice in International Research; Needs and Justice; Patents; Payment of Research Subjects, Ethical Issues in; Pharmacogenetics; Research Governance.

Further Reading Berg K and Chadwick R (2001) Solidarity and equity: new ethical frameworks for genetic databases. Nature Reviews 2: 318–321. Burrows B (ed.) The Catch: Perspectives in Benefit Sharing. Washington, D.C.: Edmonds Institute. Dickeson D (2006) Consent, commodification and benefit-sharing in genetic research. Developing World Bioethics 4: 109–124. Dutfield G (2004) Intellectual Property, Biogenetic Resources and Traditional Knowledge. London: Earth Scan. Kamau E and Winter G (eds.) Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing. London: Earthscan.

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Kate KT and Laird S (1999) The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing. London: Earthscan. National Bioethics Advisory Commission (2001) Ethical and Policy Issues in International Research: Clinical Trials in Developing Countries. http://www.bioethics.gov/reports/past_commissions/ index.html. Nuffield Council (2005) The Ethics of Research Related to Healthcare in Developing Countries. http://www.nuffieldbioethics.org/fileLibrary/ pdf/HRRDC_Follow-up_Discussion_Paper001.pdf. Participants in the 2001 Conference on Ethical Aspects of Research in Developing Countries (2004) Moral standards for research in developing countries – from ‘‘reasonable availability’’ to ‘‘fair benefits’’. Hastings Center Report 34: 2–11. Schroeder D (2007) Benefit sharing: it’s time for a definition. Journal of Medical Ethics 33: 205–209. Schroeder D and Pogge T (2009) Justice and the Convention on Biological Diversity. Ethics & International Affairs 23: 265–278. Shaffer DN, Yebei VN, Ballidawa JB, Sidle JE, Greene JY, Melsin EM, Kimaizo SJN, and Tierney WM (2006) Equitable treatment for HIV/ AIDS clinical trial participants: a focus group study of patients, clinical researchers, and administrators in western Kenya. Journal of Medical Ethics 32: 55–60. Special Section on Vulnerability and Benefit Sharing (2009). Cambridge Quarterly of Healthcare Ethics 18: 110–154 (five papers). Wynberg R, Schroeder D, and Chennells R (eds.) (2009) Indigenous Peoples, Consent and Benefit Sharing - Lessons from the SanHoodia Case. Berlin: Springer. Zong Z (2008) Should post-trial provision of beneficial experimental interventions be mandatory in developing countries? Journal of Medical Ethics 34: 188–192.

Relevant Websites http://www.cbd.int – Convention on Biological Diversity. http://www.cioms.ch/publications/guidelines/ guidelines_nov_2002_blurb.htm – Council for International Organizations of Medical Sciences (CIOMS) http://www.hugo-international.org/ comm_hugoethicscommittee.php – Human Genome Organization, ‘HUGO Ethics Committee.’ http://www.wma.net/en/30publications/10policies/b3/index.html – World Medical Association, Declaration of Helsinki

Biographical Sketch Doris Schroeder is Professor of Moral Philosophy and Director of the Centre for Professional Ethics at the University of Central Lancashire, UK, and Professorial Fellow in the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, Australia. Her background is in philosophy, politics, and econom­ ics. Prior to joining academia, she worked as a strategic planner for Time Warner. Her main areas of interest are international justice, human rights, dignity, and benefit sharing.

Biobanks B M Knoppers and M H Zawati, McGill University, Montreal, QC, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Anonymization The irreversible removal of personal identifiers from data or samples, such that no specific individual can be identified. Biobank/biorepository An organized collection of human biological material and associated information stored for one or more research purposes. Coding Substituting a code for personally identifying information in such a way that linkage is only possible through a key. Confidentiality The protection of information shared in a relationship of trust. Consent/informed consent Voluntary and informed expression of the will of a person, or his or her legal representative, concerning the use(s) of his or her samples and data. Depending on the nature of the biobank, such consent can take various forms (e.g., broad, specific, implicit, proxy, reconsent). Data trustee/keyholder/custodian An independent third party, who controls information used to identify data and samples held within a biobank. The trustee/ keyholder/custodian acts as an intermediary between the persons maintaining the biobank and the individuals who supply their tissues and information. Only the trustee/keyholder/custodian can link the donor’s

Introduction Nearly a decade since their creation, population biobanks have been credited for making possible large-scale human population genetics research studies looking to investigate and comprehend diseases by analyzing genetic variations and gene-environment interactions. The increase in number of both these population biobanks and the participants included therein has led to the need to harmonize where appro­ priate, both the approaches and the tools used, so as to be able to achieve statistical significance. In that respect, the international Public Population Project in Genomics (P3G) enables this collaborative process. Can the same be said of the socio-ethical and legal issues?

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personal information with any samples or information held by the biobank. Governance The process of policy orientation and management that guides and regulates research under ethical and scientific norms so that the results can be used for the benefit and improvement of the health of the population. Identifiability Any combination of data that allows a specific person to be identified. There are various terms used to describe this (e.g., coding [single or double], linkage, traceability, pseudonyminization). Material/data transfer agreement A binding legal agreement between the provider of research materials and the recipient of the materials/data that sets forth conditions of transfer and use. Population biobank A population biobank is a collection of biological materials that has the following characteristics: the collection has a population basis; it is established, or has been converted, to supply biological materials or data derived therefrom for multiple future research projects; it contains biological materials and associated personal data which may include or be linked to genealogical, medical or lifestyle data and which may be regularly updated [and] it receives and supplies materials in an organized manner.

For the sake of clarity, we adopt the definition of the Council of Europe, which defines population biobanks as the following: [c]ollections of biological materials having the following characteristics: i. the collection has a population basis; ii. it is established, or has been converted, to supply biological materials or data derived therefrom for multiple future research projects, iii. it contains biological materials and associate personal data, which may include or be linked to genealogical, medical and lifestyle data and which may be regularly updated; [and] iv. it receives and supplies mate­ rials in an organized manner (Council of Europe 2006, Recommendation Rec (2006)4 of the Committee of Ministers to Member States on Research on Biological Materials of Human Origin (adopted 15 March 2006)).

Biobanks

As we will see, the unique ethical issues raised by population biobanks explains the emphasis placed on governance. Indeed, only the passage of time will determine whether the bodies put in place to direct, oversee, set conditions for access, and also report to the public (who both participates and pays for the creation of such infrastructures) actually serve as ethi­ cal safeguards or instead impede the use of biobanks for research. Examining in turn, then, the issues of governance, consent, confidentiality, and access followed by the emerging literature on return of results, recontact, reconsent, and commercialization, we will conclude with a critical examination of the future of population biobanks after a decade of their development. Neither the retrospective use of already archived sam­ ples left over after medical use or from pathology or former research projects nor disease-specific biobanks are the subject of this article.

Governance Irrespective of whether a biobank is created by legislation or funded through publicly funded science bodies, their general governance features are the same. The distinction lies in the enforceability of the sanctions for a breach of governance rules. The legislative approach also provides certainty, while the self-regulatory approach provides for greater flexibility and adjustments as technologies change, as well as for the feasibility of international collaborations as the need arises. Even in the absence of legislation specific to biobanks with a named governance body or committee, the combination of human tissue and privacy legislation together with antidiscrimination provisions may obviate the need for a separate governance body. Also to be taken into account are the internal management and ethical filters of the resource. Typically, the approval process for the creation of a biobank and for those researchers seeking to access and use it involves multiple levels of review by independent committees. This form of shared or devolved governance may be as effective as a governance body mandated by legislation. What really matters is public trust ‘‘not only in human genetics science itself but also in the procedures and institutions which regulate it’’ (Salter and Jones, 2006: 347–366). Indeed, such endeavors ‘‘should be governed by the principles of transparency and accountability’’ (Organization for Economic Co-operation and Development [OECD] (2008) Draft Guidelines for Human Biobanks and Genetic Research Databases (12 November 2008), Rec. 3.A).

247

Consent, Confidentiality, and Access Usually treated as separate topics, consent, confidentiality, and access are inextricably linked. Most population geno­ mic studies have as their primary goal the creation of infrastructures for future, unspecified research. They also foresee collaboration with other similar resources and thus access by researchers from other countries. Thus consent, confidentiality, and access have to be concomitantly broad while making the longitudinal data collection secure over time. Biobanking on this scale challenges traditional ethics in that neither the guidelines on clinical trials nor those on biomedical research, personal data, or human tissues in general directly address this specific context. Longitudinal in nature and envisioning the participation of altruistic and presumably healthy citizens as opposed to patients, the requirements of trust and transparency are central. In contrast to the process of notification of bio­ banking with an opt out (e.g., deCODE in Iceland), the public consultation and informed consent aspects are crucial. In order to be viable as a resource, layered consent or multiple choices are not feasible. The only workable option that may be offered in such large-scale endeavors is that of asking whether the participant wishes to be recontacted for additional follow-up questions or samples. The resource itself is usually linked in an ongoing fashion to governmental, health administrative databases and to tumor and death registries. In this way, it is able to effectively gather data over time without disturbing the participant. However, it goes without saying that the right to withdraw also remains intact and is preserved by the coding of samples and data, making it possible in such a situation to retrace participants’ samples and data. Presumed potential ‘harms’ often raised in the consent process are largely focused on the possibility that the results may be misinterpreted. The epidemiological nat­ ure of such population studies may lead to identification of subpopulations or regions at risk. While the goal is the improvement of health care and the health of the popula­ tion, the absence of adequate health care systems and of social security systems as well as discriminatory insurance practices could undermine these goals and affect the very legitimacy of these biobanks. Another fear is a breach of security, though modern encryption technologies and third-party custodians of the coding keys have largely assuaged these concerns. Indeed, it is the possibility of identifiability through the spread of whole-genome sequencing (often via direct-to-consumer testing) that is becoming a growing concern. Presumably, the existence of genomic information on an individual can in certain situations (still largely hypothetical) be used to re-identify a person in an open access population biobank

248 Biobanks

by matching it with a similar set elsewhere. Most popula­ tion biobanks are not open access, however, but rather controlled access via ethics and data security review committees. Moreover, the substantial public interest in understanding gene–environment relationships and their role in the expression of common diseases outweighs such hypothetical possibilities. Public funding of sustainable health systems with equitable access aiming to prevent illness and protect health depends on the ongoing cred­ ibility and security of biobanks. Currently, as mentioned, most access policies foresee an independent access committee to examine requests to use the data and samples. Proof of an independent scien­ tific review and of local ethical approval is also a prerequisite. The return of published results to the resource as well as the signing of a material transfer agreement (MTA) are common and generally prohibit the patenting of primary data and sharing with third parties. The MTAs usually contain a limited-use stipula­ tion and a clause disallowing any attempt to re-identify participants. Generally, researchers are given exclusivity of research rights for a limited time period and must destroy or return the remaining data or samples. Some require prior review of publications by the biobanks to avoid possible stigmatization. There is no consensus on ownership nor on intellectual property issues. The failure to achieve consensus on this latter issue reflects the con­ tinuing debate on, firstly, whether a participant in such public endeavors is a ‘donor,’ that is, an ‘information altruist,’ who participates for the common good, and, secondly, on whether the biobanks are owners or custo­ dians. Irrespective, even with the broad consent necessary for the creation of such infrastructures, the donor retains control not only through limiting use to the biomedical purposes of the resource but also through the right to withdraw. What is important is that ‘‘data access requests and data distribution are consistent with the informed consent provided by the participant’’ (OECD, 2008, Rec. 7.7).

Return of Results/Recontact/Reconsent Population studies are largely epidemiological in nature. This stands in contrast to clinical trials or to the health care setting where the use of samples is for diagnostic purposes and where the further use for research is either consented to (upon admission or later) or obtained via waiver from an ethics committee. Often linked to administrative health databases or to the medical record, population resources are at pains to protect the identity of participants through elaborate security measures. Seeking to understand the role of the environment and lifestyle on the expression of genetic factors in common diseases at the level of the populations, there are no ‘individual’

results of clinical significance except perhaps during the initial assessment upon entry into the cohort where immediate feedback is possible. General ongoing information is provided via a website, newspaper articles, and publications. Since such infrastructures serve as resources for other more-specific biomedical research projects, there has to be a very clear policy on what will be communicated or not. The Council for International Organizations of Medical Sciences’ (CIOMS) International Ethical Guidelines for Epidemiological Studies states: Before requesting an individuals consent to participate in research, the investigator must provide the following information, in language or another form of communica­ tion that the individual can understand: [. . .] 7) that, after the completion of the study, subjects will be informed of the findings of the research in general, and individual subjects will be informed of any finding that relates to their particular health status (The Council for International Organizations of Medical Sciences [CIOMS] (2008). International Ethical Guidelines for Epidemiological Studies (adopted February 1, 2008)).

This Guideline also states that ‘‘in general, information of uncertain scientific validity or meaning would not qualify for transmission to the participant’’ (CIOMS, p. 81). More specifically, a return of individual results other than immediate feedback (i.e., critical values) is not consis­ tent with the very purpose of such studies. It would be misleading (i.e., therapeutic conception) and confusing if promises of ‘clinical’ findings or diagnosis or eventual noti­ fication of such were held out to potential participants. Indeed, the OECD Draft Recommendation on Human Biobanks and Genetic Research Databases states that ‘‘[n]on validated results from scientific research using a [Human Biobanks and Genetic Research Databases] HBGRDs’ human biological materials and data should not be reported back to the participants and this should be explained to them during the consent process’’ (OECD, 2008, Rec. 4.G). One way to ensure that participants are reminded of their inclusion and to keep certain data updated is to ask them to accept or reject at the time of consent a recontact option for updates on questionnaires or for additional samples, or when the biobank is approached by studies with a different purpose than the original consent. There is, however, a need for ‘‘policies and procedures for ensuring that such re-contacting is not unduly burden­ some for participants’’ (OECD, 2008, Rec. 7.2). Public websites can also indicate what research projects have accessed the biobanks and general results so that both the participants and the public can be informed of ongoing use. Moreover, local medical societies should be informed by the biobank of incidence or prevalence

Biobanks

data of interest for health planning and general patient care. The debate on return of results is ongoing, but it is important to distinguish between the opportunity and the duty to return meaningful information that can be acted upon and the psychological harassment of participants with nonvalidated information that has no clinical value. This is all the more important in the case of genetic information because of its familial and reproductive implications. There is also inconsistency in defining ‘research results,’ which creates skepticism on the exis­ tence of a ‘duty.’ Nevertheless, what is certain is that there needs to be a ‘‘clearly articulated policy on feedback and the nature of the feedback, if any, that will be provided. This policy should address feedback of individual-level results, if any, as well as aggregate and general results arising from research carried out using human biologi­ cal materials and/or data from the HBGRD’’ (OECD, 2008, Rec. 4.F).

Commercialization It has become standard for the consent process to alert potential participants of the potential for research find­ ings to one day become commercialized in the form of tests or products offered in the marketplace. In this way, those with objections to such commercialization can refuse to participate in such research. It has also become common to accept the fact that patents or other forms of intellectual property may even­ tually be acquired by researchers, their institutions, or the commercial sector. The issue of ‘gene’ patents remains controversial, especially if accompanied by exclusive licensing. Moreover, the increasing commerciality of aca­ demic biotechnology research could lead researchers to delay the communication of important findings over sub­ stantial periods of time in order to protect commercial interests. The potential for conflicts of interest is not limited to researchers but also includes universities, which also seek to acquire patents and revenue. What is at stake here is our very understanding of the role of science and, in particular, publicly funded science in society. The ethics of solidarity and the ‘public good’ that underpin participation in population biobanks that serve as research infrastructures is weakened by commer­ cialization that ultimately does not serve these purposes as well. The very raison d’eˆtre of population biobanks and the ensuring public investment, trust, and participation is to further biomedical research through the ideal of the common good. It would be axiomatic, to say the least, if the patenting of primary data or the use of exclusive licensing were to be permitted or encouraged. Population biobanks are unique in that as resources, they are seen as custodians of the data and samples for

249

research to be performed by others seeking access. Due to this novel characteristic, as already mentioned, there is no consensus on intellectual property issues. Indeed, in the absence of a clear policy, protracted discussions with those seeking to access the data or samples and protect eventual intellectual property may defeat the very pur­ pose of population biobanks – to be a resource for biomedical research. This is an area in much need of ethical guidance. Paradoxically, the attempt to put as much data as possible into the public domain and beyond the reach of patent applications is being thwarted by the hypothetical possibility of re-identification of partici­ pants, creating the need for controlled access approaches. Finally, the benefit-sharing ideal increasingly espoused for clinical trials on drugs and devices is limited in its application to a resource that by its very nature has as its goals to foster and facilitate better research on diseases and thus the translation of such knowledge to the health care system and population health. The benefits will come to fruition in the long run and affect the whole population. It is more for future generations than the ‘altruistic’ participants themselves. The ideal is to promote genomic databases containing raw data (i.e., pri­ mary sequences) as ‘global public goods.’

Conclusion According to the OECD, population biobanks ‘‘should strive to make data and materials rapidly and widely available to researchers so as to advance knowledge and understanding’’ (OECD, 2008, Rec. 1.B). The reconcilia­ tion and respect of the multiple ethical duties inherent to biobanking and, in particular, increased attention to emer­ ging issues such as recontact and return of results in the particular context of such resources merit further clarifica­ tion and discussion. One could argue that the broad consent and ensuring trust in the lofty aims of population biobanks mandates a higher degree of governance and the security mechanisms protecting the samples and the data of participants. Nevertheless, care should be taken not to make access and recontact so difficult that the very ‘public resource’ purpose of population biobanks is defeated. Most important is that the researchers who use such data and samples avoid commercialization strategies that impede the rapid translation of their findings into the health care system. That system itself should ‘profit’ from the epidemiological data of the biobanks for better health surveillance and promotion and prevention programs. Therein lies the true public benefit of such endeavors. ‘‘We should revisit the modalities of knowledge sharing between all the stakeholders, redefining the frontier between what can be the subject matter of valuable intel­ lectual property rights and the basic knowledge that should be made freely available to all’’ (Auffray, 2009: 29–29.2).

250 Biobanks

Acknowledgment

Relevant Websites

This work was funded by Genome Canada and Genome Quebec.

www.p3g.org – P3G. www.p3gobservatory.org – P3G Observatory. www.popgen.info – PopGen database.

See also: Bioethics, Overview; Confidentiality, General Issues of; Ethical Expertise in Policy; Genomic Databases, Ethical Issues in; Human Genome Project; Privacy, Challenges to.

Biographical Sketches

Further Reading Auffray C (2009) Sharing knowledge: A new frontier for public-private partnerships in medicine. Genome Medicine 1: 29–29.2. Be´dard K, Wallace S, Lazor S, and Knoppers BM (2009) Potential Conflicts in Governance Mechanisms Used in Population Biobanks. In: Kaye J and Stranger M (eds.) Principles and Practice in Biobank Governance. 217–227, Aldershot: Ashgate. Chadwick R and Berg K (2001) Solidarity and equity: New ethical frameworks for genetic databases. Nature Reviews Genetics 2: 218–221. Godard B, Marshall J, Laberge C, and Knoppers BM (2004) Strategies for consulting with the community: The cases of four large-scale databases. Science and Engineering Ethics 10: 457–477. Joly Y, Wahnon F, and Knoppers BM (2007) Impact of the commercialization of biotechnology research on the communication of research results: North American perspective. Harvard Health Policy Review 8: 46–60. Knoppers BM (2009) Genomics & policymaking: From static models to complex systems? Human Genetics 125: 375–379. Knoppers BM and Joly Y (2007) Our social genome? Trends in Biotechnology 25: 284–288. Kohane IS and Altman RB (2005) Health information altruists – A potentially critical resource. New England Journal of Medicine 353: 2074–2077. Lowrance WW and Collins FS (2007) Identifiability in genomic research. Science 317: 600–602. Miller FA, Christensen R, Giacomini M, and Robert JS (2008) Duty to disclose what? Querying the putative obligation to return research results to participants. Journal of Medicine and Ethics 34: 210–213. Murphy J, Geller G, Hudson K, et al. (2008) Public expectations for return of results from large-cohort genetic research. American Journal of Bioethics 8: 36–43. Salter B and Jones M (2006) Change in the policy community of human genetics: A pragmatic approach to open governance. Policy & Politics 34: 347–366. Thorisson GA, Muilu J, and Brookes AJ (2009) Genotype–phenotype databases: challenges and solutions for the post-genomic era. Nature Reviews Genetics 10: 9–18. Wallace S, Be´dard K, Kent A, and Knoppers BM (2008) Governance mechanisms and population biobanks: Building a framework for trust. GenEdit 6: 1–11. Wolf SM (2008) Introduction: The challenge of incidental findings. Journal of Law, Medicine and Ethics 36: 216–218.

Bartha Maria Knoppers, Ph.D., is Canada Research Chair in Law and Medicine, Professor at the Faculty of Medicine, McGill University, and Director of the Centre of Genomics and Policy (CGP) at the McGill University and Ge´nome Que´bec Innovation Centre. Former Chair of the International Ethics Committee of the Human Genome Organization (HUGO) (1996–2004), Professor Knoppers was a member of the International Bioethics Committee of the United Nations, Educational, Scientific and Cultural Organization (UNESCO), which drafted the Universal Declaration on the Human Genome and Human Rights (1993–97). She is also Co-Founder of the International Institute of Research in Ethics and Biomedicine (IIREB) and a Co-Director of the Quebec Network of Applied Genetic Medicine (RMGA). She also founded the international Public Population Project in Genomics (P3G) in 2003. From 2000 to 2006 she served on the Board of Genome Canada, became Chair of the Ethics Working Party of the International Stem Cell Forum, Co-Chair of the Sampling/ELSI Committee of the 1000 Genomes Project (2008), and a member of the Scientific Steering Committee of the International Cancer Genome Consortium (ICGC) (2009). Ma’n H. Zawati, LL.B., is a lawyer and Professional Associate at the Centre of Genomics and Policy at the McGill University and Ge´nome Que´bec Innovation Centre. Mr. Zawati coordi­ nates the ELSI and Privacy Task Force of the Canadian Partnership for Tomorrow Project, a pan-Canadian research study of 300 000 Canadians that explores how genetics, environ­ ment, lifestyle, and behavior contribute to the development of cancer and other chronic diseases. Ma’n H. Zawati also manages the HumGen International Project as well as the PopGen Module, an international database on the legal and socioethical aspects of Population Genetics. His work focuses on the legal and ethical aspects of popula­ tion genomics and on the duties of health professionals in medical research. He is currently a legal representative in the research ethics committees of Montreal’s General Hospital, the Sir Mortimer B. Davis – Jewish General Hospital, and the Montreal Chest Institute.

Biocentrism J P Sterba, University of Notre Dame, Notre Dame, IN, USA ª 2012 Elsevier Inc. All rights reserved.

Biocentrists are well-known for their commitment to the equality of species. However, if this commitment is to be defensible, biocentrists must (1) specify a set of conflict resolution principles that are not biased in favor of human species, (2) deal with the conflict between holists and indi­ vidualists, and (3) reasonably distinguish what has intrinsic value from what does not. But how is this to be done? First, the commitment of biocentrists to equality needs to be understood by analogy with the equality of humans. Accordingly, just as we claim that humans are equal, yet justifiably treat them differently, so too we should be able to claim that all species are equal, yet justifiably treat them differently. In human ethics, there are various inter­ pretations that we give to human equality that allow for different treatment of humans. In ethical egoism, every­ one is equally at liberty to pursue his or her own interests, but this allows us to always prefer ourselves to others, who are understood to be like opponents in a competitive game. In libertarianism, everyone has an equal right to liberty, but although this imposes some limits on the pursuit of self-interest, it is said to allow us to refrain from helping others in severe need. In welfare liberalism, everyone has an equal right to welfare and to opportunity, but this need not commit us to providing everyone with exactly the same resources. In socialism, everyone has an equal right to self-development, and although this may commit us to providing everyone with something like the same resources, it still sanctions some degree of self-pre­ ference. Therefore, just as there are various ways to interpret human equality that still allow us to treat humans differently, there should be various ways that we can interpret species equality that still allow species to be treated differently. Thus, one might interpret species equality in a very strong sense, analogous to the interpretation of equality found in socialism. However, in an effort to attract more adherents, it is preferable to interpret species equality as more akin to the equality found in welfare liberalism or in libertarianism than it is to the equality found in socialism with respect to the degree of preference it allows for oneself and the members of one’s own species.

Conflict Resolution Principles This preference can be maintained, in part, on grounds of limited defense. Accordingly, we have the following two

principles that apply to all agents who are capable of understanding and acting on them:

•

The principle of defense permits actions in defense of both basic and nonbasic needs against the aggression of others, even if it necessitates killing or harming those others, unless prohibited. The principle of nondefense prohibits defending nonbasic needs against the aggression of others that is undertaken as the only way to meet basic needs, if one can reasonably expect a comparable degree of altruistic forbearance from those others.

•

The principle of defense allows the members of a species to defend themselves and others from harmful aggression (1) against their persons and the persons of others to whom they are committed or happen to care about and (2) against their justifiably held property and the justifi­ ably held property of others to whom they are committed or happen to care about. This principle is analogous to the principle of selfdefense that applies in human ethics and permits actions in defense of oneself or other human beings against harm­ ful human aggression. In the case of human aggression, however, it will sometimes be possible to effectively defend oneself and other human beings by first suffering the aggression and then securing adequate compensation later. Because in the case of nonhuman aggression by the members of other species with which we are familiar this is unlikely to obtain, more harmful preventive actions such as killing a rabid dog or swatting a mosquito will be justified. There are simply more ways to effectively stop aggressive humans than there are to effectively stop the aggressive nonhumans with which we are familiar. However, there is a limit to the degree of defense that is justified. Defending nonbasic needs against the aggres­ sion of others that is undertaken as the only way to meet basic needs is prohibited if you can reasonably expect a comparable degree of altruistic forbearance from those others. In the case of human ethics, we can see how this type of aggression can be justified when the poor, who have exhausted all the other means that are legitimately available to them, take from the surplus possessions of the rich just what they need to meet their basic needs. Expressed in terms of an ideal of negative liberty endorsed by libertarians, the justification for this aggres­ sion is the priority of the liberty of the poor not to be interfered with when taking from the surplus possessions

251

252 Biocentrism

of the rich what they require to meet their basic needs over the liberty of the rich not to be interfered with when using their surplus for luxury purposes. Expressed in terms of an ideal of fairness endorsed by welfare liberals, the justification for this aggression is the right to welfare that the needy have against those with a surplus. Expressed in terms of an ideal of equality endorsed by socialists, the justification for this aggression is the right that everyone has to equal self-development. The principle of nondefense is simply a species-neu­ tral generalization of this justification for aggression that is found in human ethics. The principle of defense and the principle of nondefense together, therefore, express the grounds of limited defense for preferring oneself and the members of one’s own species over other species that is consistent with the equality of species. A preference for oneself and the members of one’s own species, however, can also be justified on grounds of preservation. Accordingly, the following two principles apply to all agents who are capable of understanding and acting on them:

•

The principle of (aggression for) preservation per­ mits aggressing when necessary against the basic needs of others for the sake of basic needs unless prohibited. The principle of nonaggression prohibits aggressing against the basic needs of others either (1) to meet nonbasic needs or (2) to meet basic needs if one can reasonably expect a comparable degree of altruistic for­ bearance from those others.

•

Needs, in general, if not satisfied, lead to lacks or deficiencies with respect to various standards. The basic needs of humans, if not satisfied, lead to lacks or deficiencies with respect to a standard of a decent life. The basic needs of animals and plants, if not satisfied, lead to lacks or deficien­ cies with respect to a standard of a healthy life. The means necessary for meeting the basic needs of humans can vary widely from society to society. By contrast, the means necessary for meeting the basic needs of particular species of animals and plants are more invariant. Of course, whereas only some needs can be clearly classified as basic and others clearly classified as nonbasic, there are still other needs that are more or less difficult to classify. However, the fact that not every need can be clearly classified as either basic or nonbasic – as is true of a whole range of dichotomous concepts such as moral/immoral, legal/illegal, living/nonliv­ ing, and human/nonhuman – should not immobilize us from acting at least with respect to clear cases. In human ethics, which assumes that only humans have moral standing, there is no principle that is strictly analogous to the principle of (aggression for) preservation. There is a principle of self-preservation in human ethics that permits actions that are necessary for meeting one’s own basic needs or the basic needs of other people, even if this requires failing to meet (through an act of omission)

the basic needs of still other people. For example, we can use our resources to feed ourselves and our family, even if this necessitates failing to meet the basic needs of people in Third World countries. However, in general, we do not have a principle that allows us to aggress against (through an act of commission) the basic needs of some people in order to meet our own basic needs or the basic needs of other people to whom we are committed or happen to care about. Actually, the closest we come to permitting aggressing against the basic needs of other people in order to meet our own basic needs or the basic needs of people to whom we are committed or happen to care about is our acceptance of the outcome of life and death struggles in lifeboat cases, in which no one has an antecedent right to the available resources. For example, if you had to fightoff others in order to secure the last place in a lifeboat for yourself or for a member of your family, we might say that you justifiably aggressed against the basic needs of those whom you fought to meet your own basic needs or the basic needs of the member of your family. Nevertheless, survival requires a principle of preserva­ tion that permits aggressing against the basic needs of at least some other living things whenever this is necessary to meet one’s own basic needs or the basic needs of others whom one happens to care about. Here, there are two possibilities. The first is a principle of preservation that allows one to aggress against the basic needs of anyone for the sake of basic needs. The second is the principle of preservation, discussed previously, that allows one to aggress against the basic needs of others for the sake of basic needs, unless (when the principle of nonaggression applies) one can reasonably expect a comparable degree of altruistic forbearance from those others. The first prin­ ciple does not place any limit on whom one can aggress against for the sake of basic needs, and thus it permits even cannibalism provided that it serves to meet basic needs. In contrast, the second principle (when the princi­ ple of nonaggression applies) does place a limit on whom one can aggress against for the sake of basic needs by prohibiting aggression against those from whom one can reasonably expect a comparable degree of altruistic for­ bearance. Moreover, because those from whom one can reasonably expect a comparable degree of altruistic for­ bearance normally turn out to be members of one’s own species, the principle of (aggression for) preservation, together with its allied principle of nonaggression, sanc­ tions a certain preference for the members of one’s own species. However, is this degree of preference for the members of one’s own species compatible with the equality of species? Of course, it would be theoretically possible to interact with the members of one’s own species on the basis of the first principle of preservation considered pre­ viously – the one that permits even cannibalism as a means for meeting basic needs. In the case of humans,

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adopting such a principle would clearly reduce the degree of predation of humans on other species and so would be of some benefit to other species. However, although adopting such a principle, by permitting cannibalism, would clearly reduce the degree of predation of humans on other species, and so would be of some benefit to other species, it would clearly be counterproductive with respect to meeting basic human needs. This is because implicit nonaggression pacts based on a reasonable expec­ tation of a comparable degree of altruistic forbearance from fellow humans have been enormously beneficial and probably were necessary for the survival of the human species. Thus, it is difficult to see how humans could be justifiably required to forgo such benefits. Moreover, beyond the prudential value of such impli­ cit nonaggression pacts against fellow humans, there appears to be no morally defensible way to exclude some humans from their protection. This is because any exclusion would fail to satisfy that most basic principle of morality, the ‘ought’ implies ‘can’ principle, given that it would impose a sacrifice on at least some humans that would be unreasonable to ask and/or require them to accept. Given, then, that this greater altruism cannot be morally required, the degree of preference for the mem­ bers of one’s own species sanctioned by the principle of (aggression for) preservation together with its allied prin­ ciple of nonaggression would be morally justified. Nevertheless, preference for the members of one’s own species can go beyond bounds, and the bounds that are compatible with the equality of species are captured by the first requirement of the principle of nonaggression, which prohibits aggressing against basic needs for the sake of nonbasic needs. This requirement is needed to give sub­ stance to the claim that the members of all species are equal. One can no more consistently claim that the mem­ bers of all species are equal yet aggress against the basic needs of the members of some species whenever this serves one’s own nonbasic or luxury needs, or the nonbasic or luxury needs of others, than one can consistently claim that all humans are equal yet aggress against the basic needs of some humans whenever this serves one’s nonbasic or lux­ ury needs or the nonbasic or luxury needs of other humans. Consequently, if equality of species is to mean anything, it must be the case that the basic needs of members of species are protected against aggressive actions that only serve to meet nonbasic needs, as demanded by the first requirement of the principle of nonaggression. Another way to state the central claim here is to claim that equality of species rules out domination, where domination means aggressing against the basic needs of the members of some species for the sake of satisfying the nonbasic needs of the members of other species. Finally, we need one more principle to deal with violations of the four previously discussed principles:

•

The principle of rectification requires compensa­ tion and reparation when the other principles have been violated. Obviously, this principle is somewhat vague, but for those who are willing to abide by the other four principles, it should be possible to remedy this vagueness in practice. Taken together, these five principles constitute a set of environmental principles that are clearly not biased in favor of the human species and thus provide a defensible interpretation of commitment of biocentrists to the equal­ ity of species.

Individualism and Holism It might be objected that this defense of biocentrism has not yet taken into account the conflict between holists and individualists. According to holists, the good of a species, the good of an ecosystem, or the good of the whole biotic community can trump the good of individual living things. According to individualists, the good of each indi­ vidual living thing must be respected. One might think that holists would require that we abandon the principle of preservation. Yet consider the following: Assuming that people’s basic needs are at stake, how could it be morally objectionable for them to try to meet those needs, even if this were to harm nonhuman individuals, species, whole ecosystems, or even, to some degree, the whole biotic community? Of course, we can ask people in such conflict cases not to meet their basic needs in order to prevent harm to nonhuman individuals or species, ecosystems, or the whole biotic community. However, if people’s basic needs are at stake, it will be a very unusual case in which we can reasonably demand that they make such a sacrifice. We could demand, of course, that people do all that they reasonably can to keep such conflicts from arising in the first place because just as in human ethics, many severe conflicts of interest can be avoided simply by doing what is morally required early on. Nevertheless, when lives or basic needs are at stake, the individualist perspective seems generally incontrovertible. We cannot normally require people to be saints. At the same time, when people’s basic needs are not at stake, we would be justified in acting on holistic grounds to prevent serious harm to nonhuman individuals, species, ecosystems, or the whole biotic community. Obviously, it will be difficult to know when our interventions will have this effect, but when we can be reasonably sure that they will, such interventions (e.g., culling elk herds in wolf-free ranges or preserving the habitat of endangered species) would be morally permissible, and they would be morally required when the principle of rectification applies. This shows that it is possible to agree with individualists when

254 Biocentrism

the basic needs of human beings are at stake and to agree with holists when they are not. However, this combination of individualism and hol­ ism appears to conflict with recognizing that all species are equal by imposing greater sacrifices on the members of nonhuman species than it imposes on the members of the human species. Fortunately, appearances are deceiv­ ing here. Although the proposed resolution justifies imposing holism only when people’s basic needs are not at stake, it does not justify imposing individualism at all. Rather, it would simply permit individualism when peo­ ple’s basic needs are at stake. Of course, we could impose holism under all conditions. However, given that this would, in effect, involve going to war against people who are simply striving to meet their own basic needs in the only way they can, as permitted by the principle of preservation, such impositions would generally not be justified. It would involve taking away the means of survival from people, even when these means are not required for one’s own survival. Nevertheless, this combination of individualism and holism may leave animal liberationists wondering about the further implications of this resolution for the treatment of animals. Obviously, a good deal of work has been done on this topic. Initially, philosophers thought that humanism could be extended to include animal liberation and eventually environmental concern. Then, Baird Callicott argued that animal liberation and environmental concern were as opposed to each other as they were to humanism. The resulting conflict Callicott called ‘‘a triangular affair.’’ Agreeing with Callicott, Mark Sagoff contended that any attempt to link together animal liberation and environmental concern would lead to ‘‘a bad marriage and a quick divorce.’’ Yet other philoso­ phers, such as Mary Ann Warren, have tended to downplay the opposition between animal liberation and environmental concern, and even Callicott now thinks he can bring the two back together again. There are good reasons for thinking that such reconciliation is possible. First, it would be good for the environment if people generally, and especially people in the developed world, adopted a more vegetarian diet of the sort that animal liberationists are recommending. This is because a major portion of livestock production today consumes grains that could be more effectively used for direct human consumption. For example, 90% of the protein, 99% of the carbohydrate, and 100% of the fiber value of grain is wasted by cycling it through livestock, and currently 64% of the U.S. grain crop is fed to livestock. Thus, by adopt­ ing a more vegetarian diet, people generally, and especially people in the developed world, could signifi­ cantly reduce the amount of farmland that has to be kept in production to feed the human population. This, in turn, could have beneficial effects on the whole biotic commu­ nity by eliminating the amount of soil erosion and

environmental pollutants that result from raising live­ stock. For example, it has been estimated that 85% of U.S. topsoil lost from cropland, pasture, rangeland, and forestland is directly associated with raising livestock. Thus, in addition to preventing animal suffering, there are additional reasons to favor a more vegetarian diet. However, although a more vegetarian diet seems in order, it is not clear that the interests of farm animals would be well served if all of us became complete vege­ tarians. Sagoff assumes that in a completely vegetarian human world, people would continue to feed farm ani­ mals as before. It is not clear that we would have any obligation to do so, however. Moreover, in a completely vegetarian human world, we would probably need approximately half of the grain we now feed livestock to meet people’s nutritional needs, particularly in under­ developed countries. There simply would not be enough grain to feed all humans and animals. There would also be the need to conserve cropland for future generations. Therefore, in a completely vegetarian human world, it seems likely that the population of farm animals would be decimated, relegating many of the farm animals that remain to zoos. However, raising farm animals can be seen to be mutually beneficial for humans and the farm animals involved. Surely, it would benefit farm animals to be brought into existence, maintained under healthy con­ ditions, and hence not in the numbers sustainable only with factory farms, but then killed relatively painlessly and eaten, rather than that they not be brought into existence or maintained at all. Thus, a completely vege­ tarian human world would not be in the interest of farm animals. Of course, no one would be morally required to bring farm animals into existence and maintain them in this manner. Morally, it would suffice just to maintain representative members of the various subspecies in zoos. Nevertheless, many will find it difficult to pass up an arrangement that is morally permissible and mutually beneficial for both humans and farm animals. Nor, it seems, would it be in the interest of wild species that no longer have their natural predators not to be at least therapeutically hunted by humans. Of course, where possible, it may be preferable to reintroduce natural predators. However, this may not always be possible because of the unavoidable proximity of farm animals and human populations, and then if action is not taken to control the populations of wild species, disaster could result for the species and their environments. For exam­ ple, in the absence of predators, ungulates (hooved mammals such as white-tailed and mule deer, elk, and bison) as well as elephants regularly tend to exceed the carrying capacity of their environments. Thus, it may be in the interest of these wild species and their environ­ ments that humans intervene periodically to maintain a balance. Of course, there will be many natural environ­ ments in which it is in the interest of the environment and

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the wild animals that inhabit it to be simply left alone. Here too, however, animal liberation and environmental concern would not be in conflict. For these reasons, ani­ mal liberationists might seem to have little reason to object in this regard to the proposed combination of individualism and holism that is captured by biocentr­ ism’s conflict resolution principles.

Distinguishing Life That Has Intrinsic Value Even if biocentrists can handle the conflict between holists and individualists, they still need to reasonably distinguish the life that they claim has intrinsic value from the animate and inanimate things that they claim lack intrinsic value. To do this, it is useful to be clear about what it means to claim that life of a certain sort has intrinsic value that inanimate and some animate things lack. Here, we need to distinguish at least two notions of intrinsic value. According to the first notion of intrinsic value, to say that X has intrinsic value is to say that X is good as an end for some agent Y as opposed to saying that X has instrumental value, which is to say that X is good as a means for some agent Y. According to the second notion of intrinsic value, to say that X has intrinsic value is to say that the good of X ought to constrain the way that others use X in pursuing their own interests. Although the first notion of intrinsic value is the more familiar one, the second notion of intrinsic value is more useful in this context. Thus, to say that certain living beings have intrinsic value is to say that the good of those living beings ought to constrain the way that others use them in pursu­ ing their own interests. The actual constraints that are operative in this regard are given by the previously dis­ cussed conflict resolution principles. Critics of biocentrism, however, can accept this analy­ sis of intrinsic value. What they question is how biocentrists can reasonably distinguish the life they claim has intrinsic value from the animate and inanimate things they claim lack intrinsic value. In particular, these critics claim that biocentrists cannot reasonably distin­ guish the living things they claim have intrinsic value from machines and from various other kinds of living things, such as hearts and kidneys, that they claim lack intrinsic value. Critics point out that machines, hearts, and kidneys can all be benefited and harmed, so why should they not also have intrinsic value? Of course, if biocentrists were to allow that all these things have intrin­ sic value, that would be the reducio ad absurdum of their position. Accordingly, biocentrists need to provide some way of reasonably distinguishing what they claim has intrinsic value from what they claim lacks intrinsic value. Biocentrists have responded to this challenge in var­ ious ways. Paul Taylor claims that in addition to being

capable of being benefited or harmed, a being must have a good of its own in order to have intrinsic value. Taylor claims that machines and living beings, such as hearts and kidneys, do not have a good of their own because their good is derived from the good of living beings whose good is not so derived. Laurence Johnson responds in a similar, but more expansive, way, claiming that moral subjects are living systems in a persistent state of low entropy sus­ tained by metabolic processes for accumulating energy whose organic unity and self-identity is maintained in equilibrium by homeostatic feedback processes. Gary Varner takes a different approach, claiming that what characterizes living beings that have intrinsic value is that the capacities of these living beings arose by a process of natural selection. According to Nicholas Agar, who builds on Varner’s account, it is having capabilities that arose by natural selection together with having certain representational goals that characterize living beings that have intrinsic value. The problem with all of these accounts is that they involve a derivation of ‘values’ from ‘facts’ in such a way that we can always ask why these ‘facts’ and not others are the grounds for the deriva­ tion. Of course, animal liberationists, who hold that only sentient beings have intrinsic value, and most people, who tend to be anthropocentrists and hold that only humans or, more generally, rational beings have intrinsic value, face the same problem. Thus, is there any way out of this problem? First, we need to recall that the basic concern of environmental ethics is to determine the prerogatives of and constraints on moral agents in their relationship with other living beings. The prerogatives specify the ways that moral agents can justifiably harm other living beings (the principles of defense and preservation), whereas the constraints specify the ways that moral agents cannot justifiably harm other living beings (the principles of nondefense and nonaggression). Moreover, when moral agents recognize beings as having intrinsic value, they simply recognize that these constraints apply to their interactions with them. It is important to note that the constraints specifying ways that moral agents should not harm other living beings are simply requirements that, under certain con­ ditions, moral agents should leave other living beings alone – that is, not interfere with them. They are not requirements that moral agents do anything for other living beings. To generally require that moral agents do something (beneficial) for other living beings (except when rectification is required) would be to require much more of them. It would entail positive obligations to benefit other living beings and not just negative obliga­ tions not to harm them by interfering with them. In general, this would demand too much from moral agents, in effect requiring them to be saints, and as noted pre­ viously, morality is not in the business of requiring moral

256 Biocentrism

agents to be saints. Accordingly, the general obligation of noninterference that moral agents have with respect to other living beings is fixed not so much by the nature of those other living beings (although they must be capable of being benefited and harmed in some nonderivative way) but, rather, by what constraints or requirements can be reasonably imposed on moral agents. Accordingly, we can see that those who benefit from the obligations that can be reasonably imposed on moral agents must have a certain independence to their lives; they must be able to get along on their own, without the help of others. In other words, they must have a good of their own. Some living things, such as hearts and kidneys, do not have a good of their own in this sense; therefore, they will not benefit from simply being left alone. For example, hearts and kidneys require a certain kind of sustaining environment, and to demand that moral agents provide that kind of environment, when it is contrary to their interest to do so, is to impose a significantly demanding requirement on them. Of course, there is no problem when the heart or kidney is healthy and one’s own because in that case one would almost surely want to preserve one’s own heart or kidney. However, when one’s heart or kidney is diseased, or not one’s own, one is under no positive moral obligation to preserve it as such. That would be to ask too much of moral agents. As a moral agent, one’s only general obligation to all living beings is simply not to interfere with them as specified by the principles of nondefense and nonaggression. However, it is assumed here that the living beings who are standardly covered by these principles actually would benefit from such noninterference and, hence, that they do not additionally require for their survival positive support from moral agents who have no obligation to provide it. It is such living beings who have intrinsic value; it is such living beings whose good ought to constrain the way that moral agents pursue their own interests. The same holds true for machines. It would not be good for them to be left alone. They, too, need a sustain­ ing environment. Yet moral agents are not under any positive obligation to provide such an environment. The only obligation moral agents have in this regard is an obligation, under certain conditions, not to interfere with beings who would benefit from such noninterfer­ ence. To require that moral agents do more would be to require that moral agents do too much, and morality does not require that moral agents do more than can be reason­ ably expected of them. Nevertheless, there is a further problem with machines, beyond their need for positive support, that undercuts the very possibility of moral agents having any obligations toward them. It is that unlike living things, including hearts and kidneys, machines cannot be

benefited and harmed except derivatively through their ability to serve the (instrumental) purposes of their crea­ tors or owners. Of course, we do say that a car needs an oil change or a fill-up. However, meeting such needs does not really benefit the car. Rather, it usually benefits the owner of the car, who is thereby provided with a more reliable means of transportation. Thus, suppose the owner of the car wants to turn it into a work of modern art by judiciously applying a sledgehammer to it. Would the car thereby be harmed? It is not clear that it would. Rather, the car would now seem to be serving the artistic needs of its owner and possibly others and thereby be benefiting them in this new way more or less. Moreover, in this new role, the car would presumably no longer need oil changes and fill-ups. Of course, it is possible that machines could be con­ structed that are so self-sufficient and independent that it would make sense to talk about them as being benefited and harmed in their own right and as having a good of their own. We clearly have already been exposed to such machines in science fiction; the creation of them in real life seems only to be a matter of time. Currently, however, the machines that we actually deal with cannot be bene­ fited or harmed except derivatively through their ability to serve the purposes of their creators or owners. As a consequence, the moral constraints of the principles of nondefense and nonaggression would not apply to them. Accordingly, we have now specified the class of those who have intrinsic value not primarily in terms of the factual characteristics of those who have it (although they must be capable of being benefited and harmed in a nonderivative sense) but, rather, in terms of what con­ straints or requirements can reasonably be imposed on moral agents in this regard. This is not a derivation of ‘values’ from ‘facts’ or of ‘ought’ from ‘is’ where we can always ask why these facts and not some others support the derivation. Rather, it is a derivation of ‘values’ from ‘values’ or of ‘ought’ from ‘ought’ where the necessity of the derivation can be displayed. We can more clearly display this derivation in the following argument: 1. The requirements of morality are reasonable to impose on moral agents, and what are reasonable to impose on moral agents are requirements of morality. 2. The principles of defense, nondefense, (aggression for) preservation, nonaggression, and rectification, in con­ trast with the alternatives, are reasonable to impose on all moral agents. 3. The principles of defense, nondefense, (aggression for) preservation, nonaggression, and rectification are requirements of morality. Because the basic premises of this argument (1) are widely accepted as a fundamental characterization of morality, the conclusions (3) can be seen to clearly follow.

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Of course, a fuller statement of this argument would require an elaboration of the considerations advanced in this article. Nevertheless, enough has been said to indicate how biocentrists would (1) specify a set of conflict resolu­ tion principles that are not biased in favor of human species, (2) deal with the conflict between holists and individualists, and (3) reasonably distinguish what has intrinsic value from what does not. If so, biocentrists would surely be justified in appropriating the salutation, ‘‘Let the life-force [or, better, the ethical demands of life] be with you.’’ See also: Agricultural Ethics; Animal Research; Animal Rights; Anthropocentrism; Deep Ecology; Development Ethics; Environmental Economics; Environmental Ethics, Overview; Environmental Impact Assessment; Ethics of a Sustainable World Population in 100 Years; Food Ethics; Global Ethics, Approaches; Intrinsic and Instrumental Value; Poverty; Property Rights; Resource Allocation; Speciesism; Sustainability; Vegetarianism; Wildlife Conservation; Zoological Parks.

Further Reading Agar N (1995) Valuing species and valuing individuals. Environmental Ethics 17: 397–415. Callicott B (1980) Animal liberation: A triangular affair. Environmental Ethics 2: 311–328.

Callicott B (1989) In Defense of the Land Ethic. Albany: State University of New York Press. Johnson L (1991) A Morally Deep World. New York: Cambridge University Press. Sagoff M (1984) Animal liberation and environmental ethics: Bad marriage, quick divorce. Osgood Hall Law Journal 22: 297–307. Sterba JP (2005) The Triumph of Practice over Theory in Ethics. New York: Oxford University Press. Taylor P (1987) Respect for Nature. Princeton, NJ: Princeton University Press. Varner G (1990) Biological functions and biological interests. Southern Journal of Philosophy 27: 251–270. Warren MA (1983) The rights of the nonhuman world. In: Elliot R and Gare A (eds.) Environmental Philosophy, pp. 109–134. New York: University of Queensland Press.

Biographical Sketch James P. Sterba is Professor of Philosophy at the University of Notre Dame. He has published 25 books, including Affirmative Action for the Future (Cornell, 2009); Does Feminism Discriminate Against Men? A Debate, co-authored with Warren Farrell (Oxford University Press, 2008); The Triumph of Practice over Theory in Ethics (Oxford University Press, 2005); and Earth Ethics, second edition (Prentice-Hall, 1999). He is past president of the American Philosophical Association (Central Division) and several other organizations.

Biodiversity K Lee, (Formerly) University of Manchester, Manchester, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Anthropogenic/nonanthropogenic What is caused or generated by humans and what is not. Artifactual Comes into existence, continues to exist, and may go out of existence at the behest of human intentions, desires, and purposes. Biotechnology A cluster of techniques derived from the discovery of DNA and developments in cell biology; also called genetic engineering. DNA (molecular) genetics The second revolution in genetics in the twentieth century based on the discovery of the molecular structure of gene (DNA) sequences; also called genetic engineering, which permits the insertion into the genome of an organism a gene sequence from either the same or different species or from species belonging to different kingdoms. Eukaryotes Organisms or cells whose DNA is contained in a well-defined cell nucleus with a protein coat. Hybrid (interspecific) An offspring whose parents are from two different species but belong to the same genus – for example, a cross between a lion and a tiger. Independent value What is of worth by itself that resides in biotic as well as abiotic entities/processes. These possess either consciousness (e.g., mammals) or no consciousness at all (e.g., plants and rocks). Instrumental value What is of use ultimately to beings with intrinsic value. Intrinsic value What is of worth in itself, such as that uniquely possessed by humans by virtue of the fact they have self-consciousness, language, reason, or soul. Last person argument A thought experiment in which one imagines oneself to be the last person alive on Earth with no other being with a type of consciousness equivalent to that possessed by humankind. The aim of

Introduction Biodiversity embodies major complexities that must be unraveled to properly understand where its values may lie. Some of the main forms and the processes under which biodiversity has evolved and continues to evolve are examined: genetic (between individual organisms of a species), species, and ecosystem. Biodiversity in its various manifestations is acknowledged to have instrumental value

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such an experiment is to ascertain the limits of moral permissibility. Mendelian genetics This is the first revolution in genetics in the twentieth century based on the discovery of the gene as well as chromosome. Genes are transmitted from parents to offspring in either a dominant or a recessive form. Hence, for any particular trait, an offspring may have inherited two dominant factors (one from each parent), one dominant (from one parent) and one recessive (from the other parent), or two recessives (one from each parent). In the second case, the recessive factor is not expressed in the offspring but nevertheless carries the recessive gene in its genome, which it may later transmit to its own offspring. Hence, one can say that although the first two kinds of cases display no difference in phenotype (appearance), they differ in their genotype. This theoretical understanding of gene transmission permits the technique of doublecross hybridization in the breeding of plants and animals to ensure that the individual organisms do not embody in their genomes the second kind of genetic inheritance. Naturally occurring Comes into existence, continues to exist, and goes out of existence independent of human wishes, control, or manipulation. Ontology The branch of philosophy that deals with what kinds of things exist, what entities there are in the universe; for instance, matter exists, but does mind also exist? Prokaryotes Organisms whose genetic material is not contained within a well-defined nucleus. Species A population of closely related and similar individual organisms; in the case of sexually reproducing organisms, the species involves a population of such individuals that only interbreed among themselves but not with individuals of other species. This is the biological species concept.

for humans who are said to possess intrinsic value by virtue of the fact that humans are self-conscious, language-using beings. However, can one argue that biodiversity may be the locus of another kind of value, namely ‘independent value,’ which has nothing to do with its resource use for humans or with the kind of value, called intrinsic, uniquely attributed to humans? An attempt to make such a case invokes the ontological dimension of valuing biodiversity that is best explored in two different contexts in order to

Biodiversity

bring out clearly the nature of such a value: (1) the extinc­ tion of species – historical and contemporary – through the distinction between anthropogenic and nonanthropo­ genic causes and (2) the potential increase of biodiversity using biotechnology involving the crucial distinction between naturally occurring biodiversity and artifactual biodiversity.

Valuing Biodiversity Genetics and Individual Organisms This is the form most familiar to the public at large because people are aware, particularly in view of devel­ opments in the science of genetics in the twentieth century, that different members of the same family have some genes in common. Individual organisms, except in the case of monozygotic twins (two individuals originat­ ing from the same egg fertilized by one sperm), possess different genotypes, even though they may exhibit similar phenotypes. This phenomenon is well understood espe­ cially in the context of certain medical disorders such as cystic fibrosis, which would manifest itself in the offspring only if both parents are carriers of the faulty (CF) gene. It is common knowledge that genes may be dominant or recessive. Dominant genes may permit the manifestation of a characteristic in the individual at the expense of recessive genes, which may still be transmitted to the next generation. This means that there are great varia­ tions in genetic terms between individuals within a species. Some biologists (e.g., Dawkins) have focused on the gene as the key level of biological organization for the transmission of inherited characteristics and for natural selection in the history of evolution. However, critics (e.g., Mayr and Rose) believe that this is either a too simplistic or even wrong way of looking at some very complex processes at work in nature: The organism is more than its genes; genes are more than their DNA sequences; many characteristics are not based on single genes; and genes also interact with neighboring genes as well as with their environments, internal and external to the organism. For example, phenylketonuria, a disorder linked to a single gene, involves the absence of an essential enzyme to break down the amino acid phenylalanine into a form that no longer harms the body. A person who has inherited the two copies of the gene for the condition, one from each parent, may nevertheless not develop the dis­ order if diagnosis is made early and a restrictive diet of less protein and more carbohydrates is adhered to throughout life. Concentrating on the gene in isolation tends toward a reductionist perspective, encouraging an understanding of biodiversity in a limited, one-dimensional manner.

259

Species Genetic diversity is only one level of biological organiza­ tion. Another very important level is that of the species. Biodiversity also concerns the existing number of differ­ ent species of plants and animals on Earth, ranging from 3 to 10 million at the conservative end to between 10 and 100 million species at the more speculative end. Science has identified approximately 1.5 million of them but with, at best, only partial knowledge in many cases. The rest may be said to fall into the category of ‘known unknowns.’ Scientists have good evidence to believe that most of them are to be found in the tropical forests. Biodiversity covers five kingdoms – Plant and Animal (both multicellular eukaryotes), Monera (prokaryotes such as bacteria), Protista (unicellular eukaryotic organ­ isms such as protozoa), and Fungi (multicellular eukaryotes including yeasts, molds, and fungi). The relationship between genetic and species biodi­ versity can be described as follows. Each species contains a large amount of genetic material. Bacteria have approxi­ mately 1000 genes, some fungi have 10 000, and many flowering plants have 400 000 or more. The human gen­ ome, surprisingly, has only 20 000–25 000 genes, which shows that the complexity of an organism is not necessa­ rily related to the size of its genome. As previously mentioned, each species is made up of numerous indivi­ dual organisms that are not identical in their genetic composition. Furthermore, wide-ranging species consist of several breeding populations that possess genetic var­ iations between as well as within the populations. The extinction of any one species, the loss of a breeding population within a species, or, indeed, even the loss of an individual organism is an irreplaceable loss of genetic information. The latter two may be said to constitute loss in internal diversity. However, a species is more than simply a storehouse for a set of genes or a mere collection of individual organisms that share certain common characteristics in terms of their morphology and lifestyle, including their mating habits. As a constituent of an ecosystem, a species is the result of past adaptations to environmental forces and represents possibilities for future adaptations. Thus, biodiversity is not simply the sum of the species or sub­ species that exist or the genetic variation contained therein but also includes the web of complex relations into which species enter both with one another and with their abiotic environment. From both ecological and evo­ lutionary standpoints, a species in two different ecosystems should not be considered as one unit of diver­ sity but, rather, as two different units that stand for different genetic and evolutionary potentials. In other words, ecosystem diversity is also crucial. For example, consider the case of the cichlid fish. Lake Victoria in East Africa may be regarded as an ecosystem;

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in it are 300 or more species of the cichlid fish. Lake Malawi, another of these great African lakes, is a different ecosystem; it has more than 500 species of the fish. Cichlid fishes are also found in other ecosystems in other areas of the world, such as southern India and Sri Lanka. All these species of the cichlid fish belonging to separate ecosys­ tems are not interchangeable from the standpoint of valuing biodiversity.

Ecosystem Science today understands a good deal about the contri­ bution of genetics to speciation but perhaps does not place enough emphasis on ecology. This imbalance should be redressed. The previously mentioned cichlids of Lake Victoria are an impressive instance of a mechanism called adaptive radiation, which involves the spread of species of common ancestry into different ecological niches. The 300 or more species in Lake Victoria have descended from a single colonizer that came from other lakes. In the 1990s, scientists derived this conclusion after studying the close similarity of their genetic codes. One species, Astatotilapia elegans, is a general feeder at the lake bottom; another, Macropleurodus bicolor, with a small mouth, spe­ cializes in using its pebble-shaped pharyngeal teeth to crush snails and mollusks. An ecosystem refers to all the organisms inhabiting a particular environment – be it a lake, river, marsh, or forest – and the abiotic aspects of that environment with which the organisms interact. Ecosystemic processes include photosynthesis, nutrient cycling, and energy transfers from lower to higher trophic levels. One should also understand the role played by key­ stone species within a particular ecosystem because it can decisively determine biological diversity. Its removal or extinction would mean that other species in the ecosystem could rapidly decline or become extinct, on the one hand, or dramatically increase, on the other hand. A startling instance of the impact of a keystone species is the sea otter (Enhydra lutis), once an abundant species along the western coast of North America from Alaska to southern California until it was hunted to near extinction toward the end of the nineteenth century. With its virtual disappearance, the abundant kelp forest also disappeared. The population of sea urchins exploded to fill the vacuum in the absence of its main predator, the sea otter. The sea urchins proceeded to devour the kelp and other seaweeds, causing the nearshore ocean floor to be reduced to ‘sea urchin barrens.’ Following the restoration of the sea otter, the sea urchin population declined, the kelp grew back, and other algae returned, followed by the return of tow squid, fishes, crustaceans, and whales.

The Biological Species Concept Valuing species diversity raises two different types of issues: (1) the philosophical issue – whether species, over and above the individuals that constitute a species, exist and are real; and (2) the scientific issue – whether there is a consensus about what is considered a species. The nominalist approach is seriously threatening because it considers ‘species’ to be nothing more than a convenient shorthand device to refer to a set of individual organisms that may look alike or whose male and female members sexually reproduce with one another. In other words, whereas individual organisms are real and exist, species are not. This, indeed, was Darwin’s position. If so, value lies only at the level of genetic diversity between individual organisms and not also at the level of species diversity. Do species exist over and above the individual organ­ isms that are classified under their labels? A positive answer would include the following: (1) Not all properties attributed to individual organisms can be attributed to their species and vice versa – for example, an individual animal may live up to 70 years in the wild, but the species to which it belongs can endure for 1 million years; (2) the individual animal may weigh 1 ton, but it makes no sense to say that the species weighs 1 ton; and (3) in principle, the dates of an animal’s birth and death can be precisely recorded, but the emergence as well as the extinction of a species cannot be recorded in principle so precisely in the majority of cases. One might argue that the recorded death of the last passenger pigeon constitutes definitive evidence for claiming that the species had become extinct. But does it? From the standpoint of the species, the species had become extinct long before the demise of the last passenger pigeon; it occurred when there were no longer sufficient numbers of potentially sexually reproducing passenger pigeons left in the United States to ensure the viable continuation of the species. If species are indeed real, then would there not be a single clear-cut agreed-upon account of the species con­ cept? In fact, there are not one but at least three different accounts: the morphological, the evolutionary, and the biological. To each of them, there may be objections because one concept may give a better fit to one domain of study than another. On the whole, zoologists prefer the last, whereas botanists remain suspicious of it. This kind of disagreement leads some theorists to argue that a plurality of species concepts is probably required to cap­ ture the complex patterns of variation in nature. The morphological account based on the appearance of the organisms is today no longer very significant given advances in genetics and other relevant biological sciences. The importance of the evolutionary account is evident because it is pertinent to the history as well as the future of natural evolution. The biological species

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concept – based on a closed gene pool maintained among reproducing organisms – remains the most compelling because it is the most appropriate to use in the case of sexually reproducing organisms. It may be defined as a population whose members are able to interbreed freely under natural conditions. The operative phrase is ‘under natural conditions.’ Zoos have been successful in crossing lions with tigers, but this does not mean that lions and tigers belong to one interbreeding population, no matter how genetically close they are. Under natural conditions, they have historically failed to hybridize, with each pre­ ferring different habitats and different lifestyles. Because the biological species definition views a spe­ cies as a closed gene pool, with the individuals within the population only exchanging genetic information among themselves, genetic insulation of such a kind in evolu­ tionary terms leads to hereditary traits that enable the offspring to occupy a distinctive habitat and a particular geographical range. The importance of the biological species concept lies in the fact that any attempt to understand and value biodiversity to a great extent has to rely on this concept because reproductive isolation between populations is the key to the generation of biological diversity, on the whole, within the Animal and Plant kingdoms. However, the difficulties that this concept must overcome should not be minimized. These may be summarized as follows: 1. The least serious is posed by the existence of sibling species – that is, two or more populations, having split off from an ancestral species, looking and behaving so simi­ larly that even experts may sometimes overlook certain crucial differences that render them to be reproductively isolated from one another. This difficulty is similarly faced by the morphological species concept. 2. The second difficulty is more serious because it involves subpopulations that partially interbreed, produ­ cing fertile hybrids under natural conditions. This is more true of plants in temperate climates that are wind polli­ nated rather than plants not thus pollinated or in the tropics, and it is also true of animals. However, even with such plants, the interfertile subspecies breed more often with than between themselves. 3. The concept simply has no application in the case of individual organisms that are hermaphrodites (with both ovaries and testes, thus capable of self-fertilization), that reproduce pathenogenetically from unfertilized egg cells, or that are asexually reproducing plants. However, the vast majority of species belonging to the Plant and Animal kingdoms reproduce sexually, conforming to the closed gene pool model. 4. The concept is not meaningful in the case of chron­ ospecies, which mark different stages in the evolution of the same species through time. Because these were not co-existing in time, one could not meaningfully answer

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the question of whether they would have bred freely under natural conditions if they had met. Homo sapiens is said to be descended from Homo erectus, taking approxi­ mately 1 million years to do so. However, ex hypothesi, they could not have met for us to ascertain if they could have bred freely. 5. The concept does not apply to organisms such as bacteria (Monera kingdom) because their genetic material is not even contained within a well-defined nucleus.

The Ontological Dimension in Valuing Biodiversity Emergence and Extinction of Species: Anthropogenic and Nonanthropogenic Extinction of species is a fact of life on Earth because life itself appeared as microorganisms 3 billion years ago. The first life-forms probably occurred underwater, shielded from the lethal ultraviolet rays in the atmosphere. These formed microbial mats, made up mainly of single-celled prokaryotes. From such modest beginnings, approxi­ mately 1.8 billion years ago, came eukaryotic organisms whose DNA was enveloped by nuclear membranes and whose cells contained mitochondria and organelles. These soon evolved from single-celled to more complex multicelled organisms. Then, in the Cambrian period, approximately 540 to 500 million years ago, an explosion of life-forms occurred, leading to the emergence of the major adaptive types that still exist today. However, the fossil evidence, such as the Burgess Shale of British Columbia, shows that some of these forms soon died out, seemingly as nature’s failed experiments. During this period, animals also increased in size as atmospheric oxygen nearly reached the present-day level of 21% and a sufficiently strong ozone layer was estab­ lished to shield emerging land organisms from lethal shortwave radiation. Approximately 450 million years ago, during the late Ordovician period, the vascular plants (with a system of tissues to transport water and minerals) appeared, followed by invertebrate animals, with spiders, insects, mites, and centipedes forming the pioneer corp. The amphibians emerged next, followed by the land vertebrates, giving rise to the Age of Reptiles, succeeded in turn by the Age of Mammals. In short, despite occa­ sional mass global extinctions (involving more than 99% of all species that have ever lived during each of the periods of the Phanerozoic eon, covering 550 million years ago to the present), biological diversity has increased over geological time, and life-forms, on the whole, have evolved from the simple to the more complex in terms of body size, behavioral patterns, brain power, social organization, and the ability to control the environ­ ment with increasing precision. For instance, in the sequence of archaic amphibians in the Paleozoic to the

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dinosaurs of the Mesozoic period, the survival rate was 1 in 2000 species. Despite this low rate, the Age of Reptiles was an age of flourishing biodiversity. When one com­ pares the known arthropods in the Cambrian fossils with living arthropods, it is not obvious that the former exceeds the latter. Also, since the Cambrian explosion, there has been another great rise in biodiversity in the past 100 million years. At the same time, it is an acknowledged fact that in the past approximately 500 million years, five major global extinctions have occurred: the Ordovician (440 million years ago), the Devonian (365 million years ago), the Permian (245 million years ago), the Triassic (210 million years ago), and the Cretaceous (65 million years ago). With regard to the first four, dramatic global cooling is speculated to have been the cause; although there is no consensus regarding what in turn caused the cooling, continental drift has been hypothesized. Regarding the last, which ended the Age of Reptiles, one view holds that a large meteorite hit Earth, causing effects similar to those that might follow the scenario of a nuclear winter. A contesting theory holds that volcanic eruptions were the cause. The recovery of biological diversity following each of these massive extinctions escapes full explanation; how­ ever, part of the answer includes the breakup of the original supercontinent, Pangea (thereby producing more coastlines when modern continents were formed, enhancing speciation via geographical isolation, as well as the increase of hospitable habitats including shallow bays for inshore bottom-dwelling organisms) and the emer­ gence of tropical rain forests. The latter is a crucial factor. Ecologists invoke the so-called latitudinal diversity gradient (LDG), which shows that species increase in numbers as one moves from the poles to the equator; of the 250 000 species known of land vegetation, 170 000 or 68% are found in the tropics and subtropics. In 10 selected hectare plots in Borneo alone, 1000 species have been found, compared with 700 endemic species in the entire United States and Canada. LDG may be explained in terms of the energy–stability–area theory of biodiversity, which postulates that the more stable the climate in its seasonal fluctuations, the greater the diver­ sity; the more solar energy available, the greater the diversity; and the larger the area, the greater the diversity. On each of these three biomass-enhancing scales, the tropics score high. So far, the discussion on extinction of species has been presented in a nonanthropogenic framework because the causal factors involved have nothing to do with human­ kind. For instance, the five major global extinctions occurred even before the Age of Mammals, let alone the emergence of Homo sapiens. However, since the appear­ ance of humankind as a dominant species, species extinction has continued apace, and this time the cause

can be traced to human activities, which can be consid­ ered under five main categories: 1. The earliest relates to overhunting and harvesting. For instance, in South America, since the arrival of humans during the Late Pleistocene, an estimated 45 of 120 genera (38%) of native mammals had become extinct by approximately 15 000 years ago. Of North American land mammals, 32 of 114 genera (28%) were lost. Today, these activities continue, aided by increasingly efficient technology – that is, efficient from the standpoint of harvesting the desired species at an unsustainable rate of exploitation of the natural biomass. 2. The growth in human population is exponential. Growth from 0.75 to 1.6 billion (1750–1900) took 150 years, from 1.6 to 3.3 billion (1900–1965) took 65 years, and from 3.3 to 6þ billion (1965–2000) took 35 years. 3. Habitat destruction and fragmentation occur on a pace that keeps up with the exponential growth in human population because humans, minimally, have to be housed, fed, clothed, watered, etc. (Humans as a primate group are 100 times more populous than any other land mammal of similar size in the history of evolution. Today, they consume between 20 and 40% of the solar energy captured by land plants alone.) An important point is that habitat fragmentation is not the same as geographical isolation. Whereas the latter is conducive to encouraging speciation, the former does the opposite because the refuges left standing as a result of human activity are too small, and likely to shrink even further, leading to not merely a decrease in the population of nonhuman organ­ isms but also insufficient genetic variation to sustain the basis for successful selection of genetic material for spe­ cies formation. 4. Pollution, atmospheric imbalance, and climate change are such well-known threats to species survival that there is little need to expand on such themes. 5. Introduction of exotics in the wake of extensive travel, colonization, as well as for ornamental or uti­ litarian purposes has been known to wipe out endemic species. In the 1950s, the British colonists introduced the Nile perch and Nile tilapia into Lake Victoria for commercial exploitation. Until then, the endemic cichlid fishes constituted 80% of the lake’s fish bio­ mass. By the 1980s, the Nile perch made up 80%, whereas the indigenous species of cichlid comprised only 1%, with the loss of 200 of 400 species – the greatest vertebrate mass extinction in recorded history, according to some scientists. As an ecosystem, the lake has been altered as, among other things, algae blooms proliferate as the algae-eating cichlids decrease in number, causing oxygen to deplete in the deeper waters as they decompose and sink, thereby further accelerating the decline of not only cichlids but also crustaceans and other organisms.

Biodiversity

It is estimated that until the appearance of humans, one organism became extinct per 1000 years. However, since 1600, more than 1000 species have become extinct. In contrast, since 1960, as many as 1000 species have been lost per year. Some scientists (e.g., Wilson) think that the loss of as many as 3 species per hour is a distinct possibi­ lity. The rate of renewal cannot keep up with the rate of extinction. Nonanthropogenic loss of biodiversity has no moral implications for humans. In contrast, we, who are moral agents, must bear responsibility for anthropogenic extinc­ tion of biodiversity. Our scientific understanding of species and their ecosystems has long reached a level that makes it difficult for humans to claim that we do not intend through our activities (usually economic) to cause the loss of biodiversity; for instance, we know that we can overfish or that by destroying vast tracts of virgin forests, we destroy species and ecosystem biodiversity. Ignorance successfully undermines the charge of moral responsibility while knowledge renders responsibility inescapable (other things being equal). The distinction between anthropogenic and nonanthropogenic implies an ontological dimension to valuing biodiversity, but this aspect will be made clear through a related distinc­ tion, that between naturally occurring and artifactual biodiversity, discussed next. Biotechnology Approximately 20 years after the unraveling of the struc­ ture of DNA by Francis Crick and James Watson in 1957, biotechnology, based on that basic theoretical science of molecular genetics, promptly emerged, permitting, among other things, the creation of genetically modified organisms. This kind of genetic engineering surpasses the technology of double-cross hybridization generated by the first genetic revolution of the twentieth century, namely Mendelian genetics. Whereas the latter permits more efficient breeding of plants and animals within the explanatory framework of the gene/chromosome con­ cept, the former allows humankind to introduce a DNA sequence (coding for a gene that manifests itself as a desired characteristic) belonging to an organism of one species into the genome of a second organism belonging to another species. To prevent the tomato plant from frost damage, genetic engineers have introduced into its gen­ ome a DNA sequence with the property of resisting frost formation, extracted from a species of jellyfish living in deep cold waters. This illustrates a mixing of genetic material not only from organisms of different species but also from different kingdoms. Although this radically deep technology has not created a different species (of tomato plant), it has, nevertheless, definitely crossed tra­ ditional breeding patterns, creating a new set of genetic variation not seen under natural conditions. Gene pools

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belonging to different species with their respective isolat­ ing mechanisms, in principle, are no longer closed but open to human control, manipulation, and mixing. In this fundamental sense of genetic diversity – even apart from the much vaunted possibility in the future of creating new life-forms from novo using only different DNA sequences – an increase in biological diversity need no longer be confined solely to naturally occurring but also to what may be called artifactual forms of biodiversity. Extinction of the former kind could be compensated by new forms of the latter kind. Thus, there may be no need to lament the loss of naturally evolved species/genetic variations given this new technological ability to bypass the normal processes of nat­ ural evolution. Should one lament the loss of naturally occurring biodiversity or welcome the increase of artifactual biodi­ versity? To determine these issues, one must first distinguish between two sorts of value, namely instru­ mental value and independent value. Regarding instrumental value, the loss of naturally occurring biodi­ versity remains a real threat. Contemporary technology has not yet rendered naturally occurring biodiversity superfluous and appears unlikely to do so even into the more distant future. Humankind relies on it in the follow­ ing ways:

•

Strong instrumentalism: Biotic nature is simply a storehouse of actual/potential raw resources such as food, fibers, and medicine (the silo argument). Clearly, the biota crucially contributes to the advancement of human well-being conceived in crude materialistic terms. Weak instrumentalism: (1) This form is considered to be a source of amenity value as individual organisms or as parts of ecosystems, habitats, and landscapes that can give psychological satisfaction or religious/spiritual experience of awe to humans (the cathedral argument), provide recreational opportunities (the gymnasium argu­ ment), or are a source of aesthetic pleasure (the art gallery argument); (2) this form is considered to be a provider of services that constitute public/collective goods, whose maintenance is a prerequisite for the survival and well­ being of future human generations in particular (and indirectly of nonhuman species) by acting as a sink for absorbing waste and for the sustenance of the great geo­ biochemical and hydrological cycles (the life-support system). This form of anthropocentrism implies a far richer conception of human flourishing that includes the higher pleasures of the cognitive and emotive faculties.

•

However, suppose human technology can one day find substitutes for the services listed previously under both forms of instrumentalism. If naturally occurring biodiver­ sity possesses no more than use values for humans, then clearly there would be no loss of values in the universe. However, if it also possesses independent value, then clearly there would be a loss. What sort of loss would be

264 Biodiversity

involved and does it matter? Indeed, does it even make sense to talk about such a value? To qualify as possessing independent value, an entity would or could have existed on Earth before the appear­ ance of Homo sapiens in evolutionary history and would or could exist in the eventuality of humankind becoming extinct. On this understanding, the possession of selfconsciousness or language, which are said to invest intrin­ sic value in humans who are the sole bearers of such characteristics (in anthropocentric thought), is beside the point – even rocks and plants, which lack consciousness, qualify to be the loci of independent value. The term ‘independent value’ is not standardly used, but it is invoked in this context for the precise and specific reason to distinguish such a value from the more commonly used term ‘intrinsic value,’ which is too wide because it serves to mask two very different kinds of value – that which humans are said uniquely to possess by virtue of their language and self-consciousness and that other kind that entities with no self-consciousness or, indeed, no con­ sciousness at all, such as individual plants or animals, may be said to possess. It is best that this other kind be referred to as ‘independent value’ so as not to confuse it with the kind commonly called intrinsic value, uniquely said to reside in humans and which forms the central philosophical pillar for anthropocentric thought, namely that humans alone are valuable in themselves, whereas all other entities/processes have only instrumental use for humans. Focusing on this value makes it easier to understand that instrumentalism may be flawed. Entities have not come into existence in order to be only of use to humans. However, to admit that they do clearly have instrumental value for humans is not the same as saying that they have no other value except to be of use to them. The claim that they only have instrumental value for humankind follows as an entailment of the thesis that humans are the sole locus of intrinsic value or of the claim – what may be called external teleology, first enunciated by Aristotle in The Politics – that nonhuman entities have come into existence solely for the purpose of serving human goals and purposes. However, the first entailment may be chal­ lenged because nonhuman entities may be the loci of independent value. The second entailment does not fol­ low simply because Darwinism and neo-Darwinism have long exposed the thesis of external teleology to be empiri­ cally false as well as metaphysically suspect. The mechanism of natural selection working on genetic varia­ tions in individual organisms constituting populations of organisms in their interactions with their ecosystems pri­ marily explains the course of evolution. Neither divine nor human intentions infuse or guide it. As already observed, it is a matter of mere contingency that humans find certain entities, but not others, useful to their survival and flourishing.

The concept of independent value introduces the ontological dimension into the discourse of the value of biodiversity. It implies that ontologically speaking, there are two very different types of entities that exist on Earth: (1) those that have come into existence and continue to exist and go out of existence entirely independent of humans and their intentions and manipulation, and (2) those entities that have come into existence and continue to exist and go out of existence precisely as the result of human intentions and manipulation. The former category covers naturally occurring entities, where the term ‘nat­ ure’ is understood in the sense of the ontological foil to the latter category, which refers to human artifacts. Human artifacts may be briefly defined as the material embodiment of human intentionality; as such, they are technological products, whether the technology involved is craft based or science induced. Their ontological difference may be brought out more explicitly by reminding readers of the following: (1) In a world before the appearance of humans or after the dis­ appearance of humans, the first kind of entities had existed and would continue to exist, and (2) only in a world with humans would the second kind exist. The second remark is not meant purely as an empirical but also a conceptual one: In a world without humans, the notion of (human) artifacts is unintelligible. Humans, in creating the artifacts – be they utilitarian, artistic, or religious/spiritual objects – endow them with meaning. The points mentioned previously can be demonstrated more vividly through a thought experiment based on an adaptation of Richard Routley’s the last person argument. Imagine yourself to be the last person on Earth. After your demise, no other human or being with a consciousness equivalent to that of humans would ever arise. It is feasible for you to set up a destruct device programmed to go off after your own demise, blowing nature (biotic and abiotic) to smithereens. Are you morally permitted to do so? The answer is obviously ‘yes’ if the philosophy of instrument­ alism is unswervingly correct, but it may be ‘no’ if (nonhuman) nature has a value that is independent of humans. In destroying it, the last person would be dictating its fate, interfering with its own trajectory, its pace of change and evolution. It should be allowed to carry on autonomously when humankind is gone. (Note, however, that this sense of autonomy carries no Kantian baggage.) Suppose it is possible for the last person to arrange for the destruction of all (human) artifacts after his or her demise. Is it morally permissible to do so? The answer must be ‘yes.’ Artifacts are fabricated by humans, embody­ ing our intentions, designs, and purposes. In the absence of human consciousness, there would be neither Mona Lisa nor saucepans – only piles of bits of canvas and pigments and metal. Ultimately, they would all turn back into the elements of carbon, nitrogen, or whatever they were basically made of. It would make no sense to

Biodiversity

protect them from either instant destruction or eventual decay in the absence of humans. Apart from the instru­ mental value such artifacts have for us, be these mundane or spiritually and aesthetically uplifting, they can have no other value. Nor does it make sense to say that they have. It is the uniqueness of human consciousness that makes it possible for us to grasp that naturally occurring biodi­ versity can have independent value – to recognize not only our own creativity (as expressed in the artifacts we fabricate) but also (nonhuman) nature’s creativity. Although our artifacts have value for us (as an expression of our intentionality and purposes), nonhuman others, which have nothing to do with our intentions or manip­ ulation, may also have independent value. Such consciousness also renders us as moral agents, uniquely so. Although we are capable of appreciating and articulat­ ing the instrumental value that nonhuman others may have for us, we are, at the same time, also capable of appreciating and articulating that independent value that is embodied and exhibited in nonhuman others. For this reason, it is right and proper that we should agonize about our destruction of existing naturally occurring biodiversity and about the possible and potential super­ session of such naturally occurring biodiversity by our latest technological products, induced and spawned by our basic theoretical understanding through molecular DNA genetics and cell biology. Creativity, ingenuity, and complexity as manifested by humans in their artifacts are of a different ontological order from those manifested in naturally occurring non­ human entities and processes. The former has come into existence, continues to exist as the material embodiment of human intentionality, and will go out of existence at the behest of human goals and purposes. The latter has come into existence, continues to exist, and will go out of existence, independently of human design, manipulation, or control. In other words, it is misleading to speak of creativity or complexity tout court. Instead, one should be sensitive to the following questions: Whose creativity?. and What is the source of the complexity? From the ontological perspective, what is crucial is that human creativity, complexity, and ingenuity are not substitutable for their naturally occurring counterparts. Biotechnology (in synergistic conjunction with other technologies, such as micro-computer technology and nanotechnology) may one day be able to fabricate equally complex, ingenious organisms to replace the naturally occurring biodiversity that exists today. However, such an eventuality does not imply that there is no loss of value. The implication only holds if the focus is entirely on the secondary values of creativity, complexity, and ingenuity, but it fails to hold when the focus is shifted to their primary, ontological dimension. Nature as ‘ontological other’ would be dis­ placed or destroyed should we systematically use radically powerful technologies to transform the natural

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to become the artifactual. The supersession of naturally occurring biodiversity entails a narcissistic world in which wherever we turn, we would only be admiring our own handiwork, our own creativity, and our own ingenuity. Such a world would be an impoverished one from the ontological/moral standpoint.

Conclusion Humans, by virtue of their unique consciousness, are moral agents who can recognize that natural entities and processes other than themselves possess independent value, and that they are not merely of instrumental value to humankind. Regarding the anthropogenic/nonanthropogenic distinction, extinction is not extinction tout court. Biodiversity loss is a secondary disvalue. It is important to focus on the ontological dimension – it matters whether the loss is caused by humans or not. The two kinds of extinction are not of the same ontological order. Nonanthropogenic loss in biodiversity has no moral significance whatsoever. However, the different ontologi­ cal order of anthropogenic biodiversity loss carries moral resonance. Similarly, the two forms of biodiversity – naturally occurring and artifactual – belong to two dif­ ferent ontological orders.

See also: Agricultural Ethics; Climate Change; Deep Ecology; Environmental Justice; Speciesism; Sustainability; Wildlife Conservation.

Further Reading Dawkins R (2006) The Selfish Gene. Oxford: Oxford University Press. Ehrlich PR and Ehrlich AH (1981) Extinction: The Causes and Consequences of the Disappearance of Species. New York: Random House. Lee K (1999) The Natural and the Artefactual: The Implications of Deep Science and Deep Technology for Environmental Philosophy. Lanham, MD: Lexington Books. Lee K (2005) Philosophy and Revolutions in Genetics: Deep Science and Deep Technology. Basingstoke, UK: Palgrave Macmillan. Mayr E (1997) Evolution and the Diversity of Life. Cambridge, MA: Belknap. Norton BG (1987) Why Preserve Natural Variety. Princeton, NJ: Princeton University Press. Rolston H, III. (1988) Environmental Ethics: Duties to and Values in the Natural World. Philadelphia: Temple University Press. Rose S (1997) Lifelines: Biology, Freedom and Determinism. London: Penguin. Stanford Environmental Law Society (2001) The Endangered Species Act. Stanford, CA: Stanford University Press. Sylvan-Routley R (1973) Is there a need for a new, an environmental ethic? In: Proceedings of the 15th World Congress of Philosophy, vol. 1, pp. 205–210. Sophia, Bulgaria: Sophia Press. Wilson EO (2002) The Future of Life. London: Little Brown. Wilson EO and Peter FM (1988) Biodiversity. Washington, DC: National Academy Press.

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Relevant Websites http://www.cbd.int/2010-target – Convention on Biological Diversity, ‘2010 Biodiversity Target.’ http://www.countrysideinfo.co.uk/biodvy.htm – Corker B, ‘Biodiversity and Conservation.’ http://www.endangeredspeciesinternational.org/ overview.html?gclid¼CLe9-uaNhZsCFZQU4wod6T0wow – Endangered Species International, ‘The Five Worst Mass Extinctions.’ http://www.iucnredlist.org – International Union for Conservation of Nature and Natural Resources, ‘Red List.’ http://elj.stanford.edu/links – Stanford Environmental Law Society and Journal, ‘Green Links.’’ http://www.well.com/�davidu/extinction.html – Ulansey D, ‘Mass Extinction Underway.’ http://www.unep.org/Themes/Biodiversity/About/index.asp – United Nations Environment Programme, ‘Biodiversity.’ http://www.worldwatch.org/search/node/biodiversity – Worldwatch Institute, ‘Biodiversity.’ http://planet.botany.uwc.ac.za/nisl/Climate_change/ Karen%20PDF’s/South%20Africa/ Midgley%20et%20al.%202002_Assessing%20the%20 vulnerability%20of%20species%20richness%20to%20

anthropogenic%20climate%20change%20in%20a%20 biodiversity%20hotspot.pdf http://europa.eu/environment/nature/index_en.htm

Biographical Sketch Keekok Lee’s research interests cover a wide range of philoso­ phical domains, from moral/social/legal to environmental philosophy, history/philosophy of science, especially of genetics and biology, as well as philosophy of technology from the ontological perspective. Her publications include The Natural and the Artefactual: Deep Science and Deep Technology (Lexington Books, 1999); Philosophy and Revolutions in Genetics: Deep Science and Deep Technology (Palgrave Macmillan, 2005); and a chapter titled ‘Homo faber: The Unity of the History of Technology and the Philosophy of Technology’ in New Waves in Philosophy of Technology (Palgrave Macmillan, 2009). Her current focus is the philosophy of medicine. She also has interests outside profes­ sional philosophy as narrowly defined; these include the (epistemological) issues regarding the transmission of knowl­ edge from East to West as well as Chinese culture (see Warp and Weft: Chinese Language and Culture; Eloquent Books, 2008).

Bioethics, Overview R Gillon, Imperial College London, London, UK

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, volume 1, pp 305–317, ª 1998, Elsevier Inc.

Glossary Autonomy Literally self-rule, the ability to make decisions for oneself on the basis of deliberation. Selfdetermination is an alternative term. Respect for people’s autonomy, to the extent that this is consistent with equal respect for the autonomy of all affected, is a component of many ethical theories in healthcare bioethics. Beneficence Acting so as to benefit others – a limited but universal moral obligation in many moral theories, and widely regarded as a fundamental moral obligation in healthcare bioethics. Acting so as to benefit oneself is also, strictly speaking, beneficence, but, given people’s natural self-interested tendency to benefit themselves, self-beneficence is of less ethical interest than beneficence for others. However, in some ethical theories promoting self-beneficence/self-interest is seen as the way to maximize overall welfare. Justice The moral obligation of fairness, common to many moral theories, including much of bioethics. Essentially justice is about treating people equally in relation to criteria acknowledged to be morally relevant. However, while that much is commonly agreed upon within most theories of ethics and bioethics, when it comes to specifying what the relevant criteria are (e.g., treating people equally in relation to their needs, rights, merits and demerits, ability to benefit, or autonomous desires), there is marked disagreement in philosophy, ethics, religion, and politics. Nonmaleficence Not harming others. A moral obligation in many moral theories including much of bioethics. Needs to be taken into account together with beneficence whenever it is intended to benefit others, but is widely accepted as an independent moral

Introduction Bioethics (as the etymology of its Greek roots implies – bios means life and ethike ethics) is the study of ethical issues arising in the practice of the biological disciplines. These include medicine; nursing; other healthcare pro­ fessions, including veterinary medicine; and medical and other biological or life sciences. Bioethics is ‘applied ethics’ in the sense that it is the study of ethical issues that arise or might be anticipated to arise, in the context

obligation even when no obligation or intention to benefit is acknowledged. Person A moral category into which all readers of this encyclopedia will be agreed, by the norms of probably all moral theories, to fall. Persons, or people, owe other persons or people the highest level of moral respect. There is far less agreement about the attributes needed to be a person. Such disagreement is typified in bioethics by major disputes about whether or not human embryos, fetuses, newborn babies, patients who are permanently unconscious, and even brain dead patients on ventilators are persons. Similar disputes arise about whether any nonhuman animals are persons, and if so, which. More theoretical philosophical debate concerns whether or not machines could be developed with the attributes of persons, and about the attributes that lifeforms from other planets would need to be persons. Scope of application Even when agreement about moral obligations is achieved, there may remain radical disagreement about their scope or range of application – to whom or to what are the obligations owed? For example, while it may be agreed that there is a universal obligation that we must not unjustly kill each other, the question of what counts as ‘each other’ may be vigorously disputed. While it may be agreed that we have an obligation to respect others’ autonomy, there remains disagreement about who counts as autonomous – or sufficiently autonomous to fall within the scope of this obligation. Similarly with distributive justice, even if we accept an obligation to distribute scarce resources justly, who or even what falls within the scope of this obligation? Questions of scope are relevant to many issues in ethics generally and bioethics in particular.

of real activities. While medical and other healthcare ethics are a major component of bioethics, the latter is now widely – though not universally – acknowledged to extend well beyond healthcare ethics to include not only the ethics of research in the life sciences but also

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environmental ethics, encompassing such areas as environmental pollution and consideration of the proper relationships between humans, other animals, and the rest of nature;

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268 Bioethics, Overview

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ethical issues of sexuality, reproduction, genetics, and population; and various sociopolitical moral issues, including the adverse effects on people’s health of unemployment, pov­ erty, unjust discrimination (including sexism and racism), crime, war, and torture. As well as its breadth of subject matter, bioethics is char­ acterized by the wide variety of people and disciplines actively involved. Apart from the relevant professionals such as doctors, nurses, and life scientists, and their patients and research subjects, academic disciplines involved in bioethics include moral philosophy, moral theology, and law (perhaps the ‘big three’ disciplines in bioethics); economics; psychology; sociology; anthropol­ ogy; and history. And of course the public in general, both as individuals and in various interest groupings, and their political representatives increasingly take a direct interest in bioethical issues, as do the media.

Historical Notes on Bioethics The term ‘bioethics’ seems to have been invented – or at least first used in print – in 1970 by an American biologist and cancer researcher, Van Rensselaer Potter of the University of Wisconsin. However, the word was also used, apparently independently, shortly afterward and in a somewhat different sense, by a Dutch fetal physiologist and obstetrician working in Washington, DC, Andre Hellegers, and others who with him founded the Kennedy Institute of Human Reproduction and Bioethics at Georgetown University in 1971. Van Rensselaer used the term to refer to a ‘‘new discipline that combines biological knowledge with a knowledge of human value systems’’ which would build a bridge between the sciences and the humanities, help humanity to survive, and sustain and improve the civilized world. Hellegers and his group, on the other hand, used the term more narrowly to apply to the ethics of medicine and biomedical research – and indeed, in reporting these two different conceptions, Warren Reich, editor of the mas­ sive Encyclopedia of Bioethics, tells us that when it was first being planned in 1971 it was to have been called the Encyclopedia of Medical Ethics. This division and debate are instructive in various ways about the discipline of bioethics. First, it recalls that a major component of the field of bioethics is medical and other healthcare ethics. Second, it shows that there is substantive disagreement about how far into what might be called general applied ethics the discipline of bioethics should extend. Third, it indicates the major developments even within the narrower subject of medical ethics that were occurring in the 1960s, in the decade prior to this debate. Before the 1960s the traditional approach to

medical ethics, which was then largely limited to ethical issues arising in clinical medical practice, was for doctors in training to be told or even simply to be expected to pick up from the example of their seniors what the ethical norms of professional conduct were. Doctors were rewarded by professional acceptance if they behaved ‘appropriately’ and punished by sanctions ranging from expressed disapproval via reprimands to, at worst, expul­ sion from the profession if they transgressed these norms. In the 1960s, to this continuing norm of ‘professiona­ lization’ began to be added other components. The first was the involvement in the previously largely closed world of medicine of ‘outsiders’ such as philosophers, theologians, lawyers, sociologists, and psychologists look­ ing in on the medical profession and offering their expertise and their views. The second was the concomi­ tant beginnings of acceptance within the medical profession that the insights offered from these varying outside perspectives could be helpful in the development of medicine. The third was an increasing realization that medical ethics needed to extend its sphere of interest beyond the clinical encounter into broader issues of social ethics in such contexts as fair and beneficial distribution of healthcare facilities within societies – areas of direct and necessary concern in countries such as the United Kingdom with their existing national health services – and of potential concern in countries such as the United States with their comparatively poor provision for those who could not pay for health care. Thus by the end of the 1960s medical ethics itself was beginning to change away from being almost entirely concerned with ethical rules and codes of conduct gov­ erning clinicians to also including ethical aspects of health and illness in society. And it was also beginning to accept, however cautiously and tentatively, that people and dis­ ciplines other than doctors and medicine could have instructive and useful things to say about the broad sub­ ject area of medical ethics. In other words, traditional medical ethics was tentatively beginning to encompass both aspects of the new bioethics: the philosophically more critical, analytic, and multidisciplinary approach to ethical issues arising within the clinical practice of med­ icine, and the understanding that new developments within medicine and the life sciences were raising ethical issues for society as a whole. In addition, a third strand of bioethics activity was beginning to be acknowledged by some doctors and other healthcare professionals, notably, a sense of their obligation to become involved, as healthcare professionals, in trying to remedy social factors that impinged adversely on people’s health – whether through lifestyle factors such as unhealthy diet, tobacco smoking, and lack of exercise; environmental pollution and other environmental hazards; overpopulation; or, even more politically contentiously, unemployment, poverty, crime, and warfare in its various forms.

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Underlying all of these various strands of bioethics from its recent origins is a further distinction, sometimes clear and sometimes fuzzy, between bioethics as pre­ viously defined as the intellectual activity of study of, reflection on, and inquiry into a range of ethical issues, and bioethics as a reforming activity intended to achieve substantive moral reforms whether at a personal or at a political level (examples might be public exposure of unacceptable healthcare practices, stronger entrenchment of patients rights, or abolition of nuclear weapons or land mines). While it is probably true that the large majority of people pursuing contemporary bioethics are at least in part motivated by a desire to change the world for the better, there is also a fairly clear divide between those who would do so by the pursuit and promotion of ideas, arguments, and ways of thinking and those who would add to these intellectual activities exhortation, emotional pressure, and political activity at a variety of levels. It is unclear whether the term, ‘the bioethics movement,’ which appears occasionally in the literature is intended to apply to both groups of people or more narrowly to the latter group of reformers. The explosion of interest in medical ethics and bioethics in the 1970s was most marked in the United States where, as well as the Hastings Center (founded in 1969, originally as the Institute of Society Ethics and the Life Sciences, it started its Hastings Center Report in 1971) and the Kennedy Institute, founded at Georgetown University in 1971, much academic activity developed in universities and private institutes. However, although ahead of the field, the United States was not alone in this development, and critical medical ethics activity was also beginning to be widespread if sporadic in Europe. In 1963 in the United Kingdom the multidisciplinary London Medical Group and its succes­ sors, the Society for the Study of Medical Ethics and the Institute of Medical Ethics, were founded. Starting with discussion groups and study groups in UK medical schools, the Institute founded its Journal of Medical Ethics in 1975 and its Bulletin of Medical Ethics (subsequently becoming independent of the IME) in 1985. Academic courses in medical and later healthcare ethics first started in 1978 and began to flourish in the 1980s. Similar developments in the 1970s occurred in The Netherlands and other Benelux countries and in the Nordic countries. Development of critical medical ethics arose somewhat later in Germany, in ex-Soviet-bloc countries, and in southern Europe. In each of these three latter groups different explanations are offered for the relatively late start of modem bioethics. In Germany the experiences of the Nazi era had created a widespread reluctance to discuss critically and openly (rather than with simple and firm opposition) some of the issues being addressed in the ‘new’ medical ethics – such as experimentation on human subjects; euthanasia; abortion, especially for genetic defects;

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sterilization, especially without the patient’s informed con­ sent; and the ‘new genetics’ with all its echoes and perceived echoes of eugenics. Indeed in Germany a posi­ tive hostility was to grow toward the new ‘bioethics,’ with one leading Australian bioethicist having invitations to lecture withdrawn or withheld as a result of raucous min­ ority protest and threats. In the Roman Catholic countries critical medical ethics were also slow to get off the ground. One reason was that Roman Catholic medical ethics were already very well established as an important aspect of medical education in many medical schools that were within the Catholic tradition. There, the medical ethics taught was ‘‘largely a branch of traditional Catholic moral theology’’ (Blomquist, 1978: 982), and it took some time for such teaching to adapt to the new mode of philosophically critical ethics. Similar links between medical ethics and the prevailing religious culture existed where medical schools were closely integrated within other religious traditions. Thus doctors who shared the religious traditions often felt no need to accommodate the new critical approach to medical ethics teaching, which might be perceived as threatening, while doctors who did not share the religion had often turned away from medical ethics altogether, perceiving it to be a guise for the imposition of a particular religious stance which they did not share. Some such doctors went even further in their rejection of medical ethics; participating in the pervasive spirit of postwar scientific positivism, they saw medicine increasingly more as science than as art, and they perceived science to be a value-free enterprise. Ethics was thus nothing to do with science, and indeed for some of the more extreme positivists ethics was in any case strictly nonsense. Finally, in what used to be the ‘Iron Curtain’ countries, study of the new critical medical ethics was also slow to take off, being discouraged primarily by the prevailing state orthodoxy of Marxist–Leninism, in which medical practice was a function of the state in developing and maintaining communism. Underground opposition to Marxist ideology by the many doctors in these countries who continued to adhere to Roman Catholicism or to the Orthodox Christian faiths and their medical ethical norms was also not conducive to the new critical medical ethics. In other parts of the world, including Africa and Asia, bioethics was also slower to develop, but by the 1990s the new multidisciplinary area of inquiry and study had become a worldwide phenomenon.

Substantive Issues in Bioethics As already indicated, the range of substantive issues now considered to be legitimate substrates for bioethics is vast.

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Issues Stemming from Healthcare Relationships At one end of the scale are moral issues stemming from the relationship between patients and their doctors, nurses, or other healthcare workers. These include the following:

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Issues of paternalism. Is it morally acceptable for doctors to do things to patients in order to try to benefit them without obtaining the patients’ informed consent? Who should decide what is in the patient’s best interests if a patient and his or her doctor disagree? So far as respect­ ing patients’ decisions is concerned, is there a morally relevant difference when a patient refuses a treatment and when a patient demands a treatment? Issues of confidentiality. Is it morally legitimate to reveal information stemming from the consultation with­ out the patient’s consent? If so, in which circumstances and why? Issues of honesty and deceit. When and why, if at all, might a doctor or nurse properly lie to or otherwise deliberately deceive a patient? Issues stemming from patient’s impaired or inade­ quate autonomy. When and why should children at various stages of development make their own healthcare decisions? When they should not, who should do so on their behalf, using what criteria, and why? How should decisions be made on behalf of adults who are substan­ tially mentally impaired or disordered, either temporarily or permanently, and by whom? Can great distress suffi­ ciently impair a patient’s autonomy to justify overriding his or her refusal of treatment? Can the autonomy of ‘frail elderly’ patients be legitimately overridden in their inter­ ests? If so, in which circumstances, how, and why?

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Issues of Life and Death Is abortion ever justified, and if so in what circumstances and why? How are moral tensions between the interests of a pregnant woman and those of her fetus – or unborn child – to be properly resolved when they arise? Why? Is the moral status of the human embryo, fetus, or newborn baby different from the moral status of more developed human beings? Why? Is it ever morally justified to kill patients? Is it ever morally justified to allow them to die? Is there ever any morally relevant distinction to be made between killing and allowing to die? Why? What is it to die? Is ‘brain death,’ with the rest of the body apparently alive as a result of being sustained by a ventilator and other interventions, morally equivalent to death in the usual sense where, as well as brain death, heart action and breathing have also ceased? What are the doctor’s moral obligations to patients diagnosed as permanently uncon­ scious but not brain dead, for example, patients in persistent or ‘permanent’ vegetative state? How far are

doctors obliged to try to keep patients alive when the probability of recovery is very low? Why? What should count as ‘recovery’? Why? The Patient’s Interests Versus the Interests of Others Should doctors always give moral priority to the best interests of the individual patient with whom they are then concerned, or may the interests of others sometimes take precedence? If so, in which circumstances and why? Specific examples of such tensions include emergencies versus routine consultations or operations, and many other situations where outsiders have greater needs than the patient of the moment; medical research, where the interests of future patients may conflict with the best interests of the patient of the moment; health promotion and disease prevention, where the needs of those who are not currently ill may conflict with the needs of those who are; and the requirements of medical education, both undergraduate and postgraduate (e.g., the need to teach students how to examine patients and how to carry out various procedures, including operations). More obviously, tensions between the interests of the individual patient and others increasingly arise in the context of inadequate availability of resources to meet medical needs. Should doctors participate in rationing inadequate resources to their individual patients? If so, why and using which criteria and processes? If not, who should carry out such rationing, why, and using which criteria and processes? Issues of Distributive Justice In asking questions like this the need to step away from the doctor–patient setting becomes particularly obvious. Distribution of scarce resources is a problem at several levels, only one of which is at the doctor–patient interac­ tion (so-called micro allocation). At the other end of the spectrum, governments must decide how much of their available national budgets to allocate to health care rather than other welfare programs, education, defense, or the arts (macro allocation). In between these two ends of the spectrum of allocation are distribution decisions at the organizational level: between different sorts of health care and other health-related activities, including teaching and research; between different hospitals or primary care organizations; and between different sectors and groups within organizations. Here bioethics becomes relevant at societal and organizational levels rather than at the level of the clinical encounter. At all these levels, however, there is a need for basic theoretical tools. In the context of fair distribution of scarce resources, for example, there is a need for an acceptable working theory – or working theories – of justice. How should the relevant agents

Bioethics, Overview

decide that this way of deciding to distribute scarce resources is fair and that another is unfair? Conceptual Analysis In development of basic theoretical tools, conceptual analysis of the meaning – or more often meanings – of a particular concept or set of concepts is clearly a funda­ mental component. As obvious examples, what is meant by the terms disease, health, life, human being, person, death, brain death, and vegetative state? What is the difference, if any, between the meaning of ‘human being’ and that of ‘human person’? What is meant by needs, rights, duties, and obligations? What is meant by benefit and harm in health care? What is justice in health care? What is autonomy and what conceptual distinctions are needed between it and respect for autonomy? What is meant by ‘care’ in the context of health care? What is meant by ‘virtue’ in the context of virtue theory, or by ‘nature’ and ‘natural’ when the natural is extolled and the unnatural opposed?

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and respect for just laws, some strands of bioethics have become concerned with the natural and unnatural, with the effects of science and technology on the environment and on the biosphere, and with critical evaluation of that version of the scientific ethos whose self-proclaimed reductionism and purported freedom from values is per­ ceived as more of a threat than a benefit to humanity. Such critiques in bioethics include concerns about the ‘new genetics,’ organ transplantation, especially the pro­ jected use of animal organs, and the ever-increasing efforts of ‘high-tech’ medicine and the medical equipment and pharmaceutical industries to develop methods for prolonging the ‘natural’ life span of human beings. Sometimes such critiques are based on excessive cost, sometimes on their ‘unnaturalness,’ and sometimes as part of a broader concern about the environmental sustainability of the contemporary growth of scientific and technological interventions and their potential damage to earth’s or Gaia’s (Lovelock) environments and integrity. Environmental Ethics

Ethical Issues in the Practice of Medical Science – The Impetus of Nuremberg Thus even though bioethics started with critical analysis of ethical issues arising from clinical encounters, the internal intellectual momentum of that analytic endeavor has taken it far beyond its starting points. The same can be said of the critical analysis of moral issues arising from medical science. From at least the nineteenth century ethical issues of medicine included ethical issues of med­ ical science, fundamentally ethical issues concerning the treatment of human (and to some extent animal) subjects of experimentation. This aspect of medical ethics was given a shocking impetus after World War II the revela­ tions at Nuremberg of atrocities by Nazi doctors. This rapidly led, through the newly created World Medical Association, to an international agreement known as the Helsinki Declaration in which were enshrined the principles that informed consent had to be obtained from research subjects and that the interests of the individual patient should never be subordinated to the interests of society. Since then the ever more astounding exploits of science, and recently especially of the biologi­ cal sciences in the context of organ transplantation and genetic engineering, have also pushed the concerns of bioethics well beyond their starting point within the medical sciences. Bioethics, Science Technology, and Society Quite apart from harm–benefit analyses, respect for peo­ ple and their choices, and justice in the context of fair allocation of scarce resources, respect for people’s rights,

Springing from earlier roots (e.g., in the transcendentalism and idealism of Thoreau, Emerson, Aldo Leopold, and John Muir), an extensive contemporary environmental ethics movement and literature has developed (e.g., Attfield; Callicott; Hargrove; Johnson; Naess; Taylor). Much of this environmental ethics movement considers itself to be part of bioethics, or, as in the case of Deep Ecology (Naess) and other ‘ecocentric’ environ­ mental ethical perspectives, considers bioethics to be part of it. Not content with the limiting of the scope of much of traditional ethical concern to the interests of moral agents, potential moral agents, or human beings (anthropocentrism), environmental ethics seeks to expand the scope of ethical concern. Disagreement arises as to what should be included as having moral status – is it all sentient animals, all living animals, or all living beings, including plants (biocentric environmental ethics), or are inanimate entities also to be included within the scope of ethical concern, for example, the biosphere as a whole, ecosystems, species, land, water, and air (ecocentric environmental ethics)? Interleaved with varieties of environmental ethics are varieties of feminist environmental ethics, of which one group – ecofeminism – claims that adequate theories for both feminism and environmental ethics need to under­ stand the connections between woman and nature and between the domination of women by men and that of nature by man. Thus the range of substantive issues encompassed by bioethics is indeed vast, and some have advocated that the subject area and discipline be explicitly subdivided into relevant subdisciplines. One proposal is for the

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subdivision of bioethics into theoretical bioethics, concerned with the intellectual foundations of bioethics; clinical bioethics, concerned with ethical issues arising from interactions between patients and those who care for their health; regulatory and policy bioethics, con­ cerned with rules, regulations, and laws in the context of bioethics; and cultural bioethics, which seeks ‘‘systemati­ cally to relate bioethics to the historical ideological cultural and social context in which it is expressed’’ (Callahan, 1995: 247).

Disciplinary Approaches to Bioethics In what follows, some generalizations about various dis­ ciplinary approaches to bioethics are made without the qualifications, often extensive, that they deserve. This is an intrinsic pitfall within the ‘overview’ enterprise, per­ haps justified by the attempt to give a broad picture of the woods, even though it may fail to show the fine detail and variety of the trees and shrubs and other plants composing those woods. Overviews offer impressions and invite reflection, along with criticism and analysis, including consultation of the relevant specific entries in this ency­ clopedia and in the bibliography. The disciplines sketched are clinical, scientific, religious, legal, sociologi­ cal, and psychological.

Clinical Approaches Characterized by the immediacy of the ethical issues, a personal relationship often akin to friendship or even love (a relationship described by Campbell as, at its best, ‘‘moderated love’’), clinical approaches to bioethics tend to be highly particular, situational, contextual, and partial in both senses of the term. Positive aspects of clinical approaches to bioethics at their best include the typical ethical commitment of the clinician to the individual patient, a commitment that ideally draws together all involved in the patient’s health care; detailed awareness of the patient’s individual problems and situation; and an ability and readiness to draw on clinical experience for predictive and management purposes. Clinical approaches to bioethics are perhaps the most ancient, and firmly established, stemming as they do from the existence and nature of clinical practice itself, and from the earliest codified deontological medico-moral obligations. Indeed, aspects of the Hippocratic Oath of classical Greece remain integral parts of contemporary international and national codes of medical ethics, and also at the heart of contemporary clinical ethics. At their worst, clinical approaches to bioethics may lack theoretical underpinnings, both scientific and ethical;

they may succumb to the potential injustice inherent in excessive partiality on behalf of the individual patient; excessive paternalism is an ever present moral hazard, with patients being treated like young children and hav­ ing things done to them without adequate consultation for what their clinicians regard as the patients’ own good; and clinical ethics are vulnerable to inconsistency of approach, with action sometimes being too variably determined by the stance, personality, knowledge, skills, and attitudes of the individual clinician. Clinical approaches vary not only between individual clinicians and between clinicians of different cultures but also between types of clinicians, for example, as between doc­ tors and nurses. Such variations and their attendant conflicts can, when badly managed, cause confusion, dis­ tress, and damage to the patient, even when individual clinicians all believe themselves to be acting in the patient’s best interests. Scientific Approaches Typically manifested by medical researchers, scientific approaches to bioethics aim to be as consistent as possible with scientifically established evidence and theory. At their best, when they focus on development of new treatments and diagnostic methods and on rigorous assessment of the efficacy of existing treatments and methods, they benefit patients by protecting them from unproven and potentially dangerous ‘remedies’ and other interventions, and protect future patients by insisting on subjecting potential interventions to scientific assessment (especially, in the context of the development of new medications, by use of what medical scientists in the second half of the twentieth century have regarded as the ‘gold standard’ of such assessment, the randomized controlled clinical trial). At their worst, scientific approaches to bioethics have a number of faults, many stemming from a reductionism whereby people and their activities, thoughts, and feelings are reduced to more or less complex combinations of scientifically analyzable components and processes. When clinicians adopt such an approach (and many con­ temporary doctors and increasingly nurses are also scientists, engaging in scientific research) patients may be unpleasantly confronted by what in popular parlance is termed a ‘clinical attitude’ – cool, detached, and inves­ tigative, treating patients as biophysical problems to be solved rather than as people with problems to be solved. Such approaches have no time for unproven remedies even if the patients believe them to be helpful, and often involve hostile rejection of ‘alternative’ healthcare approaches such as acupuncture and osteopathy, in the absence of scientific evidence of efficacy. In this and other contexts scientific approaches to methods of evaluation that do not involve scientific measurement – including

Bioethics, Overview

religious, spiritual, and aesthetic evaluation – are, at their worst, highly intolerant and disrespectful. Finally, a not uncommon concomitant of a certain scientific approach to bioethics is the assimilation, and even identification, of ethics with the scientific theory of evolution. Survival of the fittest, and of the ‘selfish gene,’ becomes not only the genetic explanation for the development of ethics in humankind but also its mistakenly reductionist substan­ tive content. Religious Approaches Though it is even more difficult to generalize about religious approaches to bioethics, some broad positives and negatives may be discerned. At their best, religions offer a firm grounding of firmly established positive gen­ eral ethical stances in which people are educated to have clear and substantive general and specific ethical obliga­ tions whose fulfillment is a religious duty. Bioethical obligations are situated within these general obligations. Moral respect for God’s creation – the universe and all therein – is a common religious theme and obligation, and bioethical obligations are encompassed within such respect, sometimes under the specific obligation of stew­ ardship for that creation. Beneficence to others is a common religious obligation, supported by the moral obligation to learn to overcome or temper self-interest by a concern to help others. Just distribution of scarce resources that aims at helping not only kith and kin and co-religionists but also all in greater need than self is another widespread religious concern of obvious rele­ vance in the context of bioethics. Recognition of free will as a characteristic of humankind and a concern to nurture and respect it is tempered by the obligation to love God, help others in need, and treat all people as of equal moral importance – again substantive moral posi­ tions of obvious potential relevance to bioethics. In the analysis of particular bioethical issues, religious thinkers and thinking have often been highly influential not only for their co-religionists but also for those of other religions and none. Examples include religious analyses of ordinary and extraordinary means in the context of pro­ longation of life; of the significance of intention in the moral analysis of action; and of the potential importance of distinguishing between acts and omissions, especially in contexts where the absence of specific prior moral obligations of beneficence does not negate general moral obligations of nonmaleficence. In addition, religious approaches tend to combine within practical morality the need for general moral principles with the need for specific applications of those general principles (casuis­ try); the need to combine these with obligations to educate the character to behave well (virtue ethics); and the need to make specific moral judgments only after careful attention to the stories of the people involved

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and to details of the specific context (narrative ethics). Indeed religious bioethicists, of different faiths, may sigh wearily, even impatiently, as they see many of the wheels of bioethics being laboriously and separately reinvented by contemporary secular thinkers. On the other hand, at their worst, religious approaches to bioethics are intolerantly, sometimes even fanatically, rigid about received doctrines – of whichever variety they happen to be – and incapable of adjusting to new devel­ opments, or to different moral perspectives, albeit conscientiously and thoughtfully held and defended, that are opposed to their own. Legal Approaches Widely acknowledged (with the exceptions of a few legal positivists) to be based themselves on moral obligations, legal approaches to bioethics tend to reflect the moral norms of the societies concerned. At their best such legal approaches are imbued with a concern for societal benefit and harmony, along with strong commitments to the equality of all under the law. Such legal approaches enshrine the rights of the weak against being exploited and harmed by the powerful, and the rights of the individual against being victimized, whether by other individuals, by groups, or by the state. Indeed contem­ porary legal contributions to bioethics have been strong in developing rights-based theories of justice as underpin­ nings for bioethics. At their best legal approaches to bioethics argue carefully the pros and cons of contentious bioethical issues and resolve them in ways that respect to the greatest extent possible the conflicting sincerely held and carefully reasoned moral views represented in the relevant societies. At their worst, legal approaches to bioethics facilitate and enhance state oppression – for example, under German National Socialism in relation to compulsory euthanasia and to human experimentation, and under Soviet Communism in relation to misuse of psychiatry against political dissidents. Sociological Approaches Seeing themselves as scientists of societies, social scien­ tists (sociologists) tend to try to approach bioethics in descriptive scientific mode, explaining how societal fac­ tors result in the substantive bioethical features of different societies and social groupings. At their best, such approaches help to broaden the gaze of bioethics so as to look at and understand not only ethical issues arising from the personal relationships of individuals but also ethical issues stemming from societal features that cause harm and ill health. At their worst, they can underesti­ mate the moral importance of individuals as moral agents, and combine a purportedly value-free descriptive

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approach to social functioning, in which all perspectives on morality are alleged to be of equal value or none, with a simultaneously prescriptive political stance. Psychological Approaches Seeing themselves, for the most part, as scientists of individual psyches, at their best psychologists in their approaches to bioethics illuminate it by showing how individuals come to develop their personal stances to moral issues. At their best, they facilitate self-understand­ ing, as well as understanding of others, by all involved in bioethics, especially perhaps an understanding that much of an individual’s personal stance to ethical, including bioethical, issues is a function of emotional or other non­ intellectual aspects of his or her psyche stemming from personality and from environmental influences, including those of early childhood. Ethical reasoning is recognized to be but one component of a person’s ethical stance – a component that if not necessarily the slave of the passions, as Hume put it, is at least heavily influenced by nonrea­ soning aspects of the mind. At their worst, psychological approaches to bioethics can also manifest a relativistic, deterministic approach to morality in which the moral stance of any individual is seen entirely as a function of influences beyond his or her control, an approach that tends to negate any purpose in bioethics (or indeed in any human endeavor).

Foundational Ethical Assumptions in Bioethics – Philosophical/Ethical ‘Schools’ of Bioethics As well as being pursued from many different disciplinary perspectives, bioethics is pursued from a variety of foundational theoretical assumptions, especially philoso­ phical/ethical foundational assumptions. Typically articulated by philosophers independently of the various religious foundations for bioethics, such foundational ethical assumptions offer the secular ‘floating voter’ a basis for ethical appraisal in bioethics. They also seek to offer those who are already firmly based upon a particular religious or cultural theoretical foundation a way of com­ municating about bioethics with those who do not share their religion, either because they have different religious beliefs or because they have none. Such foundations seek to provide a widely acceptable set of ethical theoretical assumptions, a widely acceptable approach to ethical analysis, and at least elements of a widely agreed upon ethical language suitable for the multicultural interna­ tional contexts in which bioethics is pursued. Even while reiterating earlier concerns about the dan­ gers of generalization (and careful reading of the relevant

sources will show that the generalizations that follow are no more than indications of the emphases of the relevant authors), nonetheless some groupings or ‘schools’ of bioethics may be discerned on the basis of the importance they ascribe to different moral foundations for bioethics. Among the most important of these schools are those emphasizing the foundational importance of respect for people and their autonomy; welfare or other utility max­ imization; social justice; the ‘four principles’; and a variety of foundational approaches that either reject moral prin­ ciples as foundational or find them inadequate – these include casuistry, virtue ethics, narrative ethics, various feminist ethics, and an increasing variety of ‘geocultural’ ethics, of which only three are outlined.

The Foundation of Respect for Autonomy Among early American approaches to bioethics, several gave special emphasis to the foundational moral impor­ tance of respect for autonomy. Thus Veatch, within his social contract theory for medical ethics, emphasized the priority of respect for the autonomy of moral agents. Similarly (though for very different reasons) Engelhardt, developing a theory for bioethics that would enable those of different moral backgrounds to cooperate in matters of bioethics, emphasized the foundational centrality of the principle of respect for autonomy (which he later renamed the principle of permission). Important positive aspects of such emphasis are its recognition of the moral importance of respect for people, whether patients or not, as ends in themselves, not to be treated by others instru­ mentally, merely as means to an end. Problems with such foundational emphasis on autonomy include the tendency for this to be interpreted as encouraging atomistic, selfish, individualism, and a lack of concern and care for others.

The Foundation of Utilitarian Welfare Maximization Welfare maximization – the obligation to maximize benefits and minimize harms – is a widespread foundational assump­ tion in bioethics, and in the context of medical ethics reflects the widespread perceived obligation of doctors and other healthcare workers to produce as much health benefit as they can with as little harm as possible. One of the most influential (and meticulous) utilitarian philosophers in the area of bioethics is R. M. Hare, and underlying utilitarian foundational assumptions are to be found in the work of Singer and Harris. A utilitarian perspective also underlies and is challengingly argued for by Parfit. Positive aspects of utilitarianism for bioethics include its requirement of a universal duty to benefit others and to avoid harming them, and to do as much good and as little harm as possible.

Bioethics, Overview

Among problems with utilitarianism as a moral foun­ dation for bioethics is that ‘common morality’ widely perceives it to deal inadequately with several types of moral obligation. These include obligations resulting from special relationships (e.g., parents’ obligations to their children and doctors’ and nurses’ obligations to their patients), as a result of which some people should not, it is widely held, be treated merely as of equal importance with all others but should be given special priority by those who have special relationships with them and therefore special obligations to them. Similarly those in great medical need ought, it is widely thought, to be given moral priority over those in less medical need, yet welfare maximization may be ready to ignore such needs if more total benefit is achieved (for others) by doing so. And utilitarianism is widely per­ ceived by its opponents to be too ready to subordinate respect for individuals’ autonomy and other individual rights where overall maximal benefit (to others) is achieved by doing so. The Foundation of Social Justice A third moral foundation offered for bioethics is social justice. As with the other foundational principles, a wide variety of versions of social justice have been proposed, but a particularly important one in bioethics is the ideal social contract theory of J. Rawls, drawn on for his specifically health-orientated theory of justice by Daniels. For Rawls the theory of justice that rational people would arrive at behind a ‘veil of ignorance’ (i.e., impartially because of not knowing what their own specific social roles or circumstances would be) would be based on two fundamental moral principles. The first would be an obligation to respect everyone’s liberty to the maximal extent compatible with equal respect for the liberty of all. The second would be to aim at equality for all, and for deliberately created inequalities to be just only if they were both to the greatest benefit of the least advantaged and attached to offices and positions open to all under conditions of fair equality of opportunity (Rawls, 1971: 60 and 83). Daniels emphasizes and develops the ‘fair equality of opportunity’ component of the Rawlsian account. Advantages of the Rawlsian approach include its com­ bination of liberty and differential benefit to those most disadvantaged. Problems include straightforward rejec­ tion in competing theories of justice of the Rawlsian principles themselves (and their theoretical justification) and/or the ‘lexical ordering’ ascribed to them by Rawls whereby liberty takes priority over egalitarianism. Libertarian theories of justice, for example, tend to reject any obligation to attain equality or to benefit the disad­ vantaged – that would be good but not obligatory. Marxist

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socialist theories of justice subordinate liberty to the meeting of need and the attempt to attain equality. Communitarian theories of justice may reject a Rawlsian approach on the grounds that it does not sufficiently specify a positive conception of the good linked to the needs and interests of human communities or the human community. And rights-based theories of justice may oppose a Rawlsian approach on the grounds that it is inadequately grounded in and supportive of human rights, with variations in such opposition depending on which rights are regarded as of particular importance. In brief, foundations for bioethics grounded in a moral concern for justice share a concern for treating people justly, but differ widely over the substantive theory of justice that should be applied.

A Quasi-Foundational Approach – The ‘Four Principles’ An attempt to offer not a foundational approach to bioethics but an approach that tries to combine some fundamental or foundational moral principles in a way that is compatible with a variety of mutually incompatible foundational theories is the ‘four-principles’ approach offered and developed since the 1970s by the Americans Beauchamp and Childress, and enthusiastically adopted and promoted in Europe by Gillon. Developing upon an earlier triad of three principles produced as a working framework for the ethics of medical research by a group of American bioethicists in the Belmont Report (Jonsen and Jameton, 1995: 1616), themselves drawing on a long tradi­ tion of post-Enlightenment moral theory, the fourprinciples approach (4PA) starts from the claim that acceptance of four prima facie moral principles is com­ mon to a wide range of theoretical perspectives on bioethics, and also to much of ‘common morality.’ Thus the 4PA is offered as a common working approach to bioethics, compatible with and neutral between a wide range of competing moral theories. It is also sometimes seen as an approach that lies in between the level of relatively abstract (and usually mutually incompatible) moral theories on one hand, and highly specific moral situations, cases, problems, and judgments on the other. The principles are respect for autonomy, beneficence, nonmaleficence, and justice. Gillon additionally emphasizes the impor­ tance of consideration of the scope of application of each (to whom or what is the prima facie duty owned, and why?). While there is little substantive rejection of anyone of these prima facie principles, opposition to the approach, pejoratively dubbed ‘principlism’ or the ‘Georgetown mantra,’ has been considerable (e.g., Clouser and Gert; Wulff).

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Criticisms of principles as foundational in bioethics emerge from a variety of alternative schools of contem­ porary bioethics. Some, like those already mentioned, do not reject principles but argue that these need to be grounded in a theory of ethics. Thus utilitarians ground their principles or rules within the overarching principle of utility, or in a logical analysis of the meaning of moral terms such as ‘ought’ (Hare); Kantians ground their prin­ ciples, rules, or maxims in a Kantian moral theory; and many religions ground their own bioethical principles within their own religious ethical framework.

particular cases, and the story is both highly specific and highly culture bound, for every culture also has its story. Everyone involved in the story has interests in its out­ come and, as Brody puts it, the ‘‘right course of action’’ to resolve a problem is not necessarily the action that conforms to an abstract principle; rather, it may be the action which, without violating any moral principles, most successfully navigates all the contex­ tual factors to move the situation in a direction that best serves the major interests of all involved parties. (Brody, 1994: 215).

Casuistry The newly revived school of casuistry not only points out that reliance on potentially conflicting moral principles often fails to provide a decision procedure for when those principles conflict in particular contexts, but also adds that principles emerge from consideration of cases, not the other way around. Thus it is particular cases, and decisions about particular cases, rather than principles that are foundational for bioethics. Casuistry, of which Jonsen and Toulmin are leading contemporary propo­ nents, is the application of general moral norms to specific cases in particular contexts in the light of com­ parisons and contrasts with previously determined clear or ‘paradigm’ cases.

Many, though not all, strands within contemporary feminist ethics also oppose reliance on moral principles, though given the wide variety of feminist approaches to bioethics, the criticisms vary. Common feminist criticisms are that moral reasoning in terms of principles is excessively abstract; fails to acknowledge the importance of the particular, of the subjective and the emotional, of the moral importance of caring and empathy, and of the respon­ sibilities stemming from relationships; and above all fails to acknowledge and redress the oppression of women, not least in their medical care (e.g., Lebacqz; Sherwin).

Virtue Ethics

Geocultural Bioethics

Another school of bioethics rejects moral principles as foundations for bioethics on the grounds that virtues, not principles, are the proper moral base for bioethics. Virtues, or character dispositions to act or otherwise respond well as people, and then as people of a certain sort (e.g., doctors, parents, scientists, or accident investi­ gators), are, according to this approach, the fundamental concerns of ethics and therefore of bioethics. This was the approach taken to ethics by Aristotle, and Aristotelian virtue ethics is enjoying a contemporary revival, with the work of Maclntyre being highly influential. One var­ iant of virtue ethics, again importantly influenced by Maclntyre and emphasizing the necessarily socially embedded and committed nature of virtue, is communi­ tarian ethics, a movement that at the end of the second millennium was gaining impetus in the United States perhaps partly in reaction to that country’s prevailing libertarian individualism (e.g., Emmanuel).

Just as individual religions tend to have their schools of bioethics, so too are various geocultural regions establish­ ing their own schools of bioethics. For example, Gracia refers to a ‘Latin model’ of bioethics appropriate to south­ ern European nations and based more on virtues than on principles; insofar as principles are seen as relevant foun­ dations, they may not be the quartet from Georgetown. A different quartet offered by Gracia for Latin bioethics comprises the fundamental value of life, therapeutic wholeness, liberty and responsibility, and sociality and social subsidiarity (whereby social problems are always best addressed through the smallest relevant social unit). Further north in Europe, Wulff, while agreeing that the Georgetown principles individually ‘‘cannot be con­ tested,’’ claims that in practice they are used to support typically American cultural approaches to bioethics which ‘‘do not accord with the prevailing moral tradition in other parts of the Western world, e.g. the Nordic countries’’ (Wulff, 1994: 277). Instead, Wulff argues that the essentially Christian and Kantian Golden Rule is and should be the foundation of Nordic bioethics – and in an earlier work Wulff and his coauthors also emphasized the importance of the Danish philosopher Kierkegaard and more generally of the continental tradition of philosophy with its concerns for phenomenology, hermeneutics, and

Narrative Ethics Associated with virtue ethics is another school of bioethics, the school of narrative ethics, that again finds reliance on moral principles inadequate. Fundamental to bioethics in this approach is the narrative or story of

Feminist Ethics

Bioethics, Overview

existentialism. On a different continent, the East Asian Association for Bioethics was established in 1995 partly because bioethicists from Japan and China felt that Western approaches to bioethics were inappropriate as moral foundations for their own countries, where Buddhist and Confucian ethical norms so firmly underlie everyday morality, even in China where Maoist Marxism has had such a powerful social influence.

Conclusion While future developments in bioethics are unpredict­ able, one prediction can be safely made. Whether or not we go so far as to accept Gracia’s assertion to the International Association of Bioethics that ‘‘bioethics, I believe, is going to be the civil ethics of all our societies’’ (Gracia, 1993: 97), we can confidently predict that it will continue to provide a range of absorbing and important ethical concerns for which an ever expanding audience of interest can equally confidently be anticipated. See also: Environmental Ethics, Overview; Social Ethics, Overview; Theories of Ethics, Overview.

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Engelhardt HT (1986, 1996) The Foundations of Bioethics, 1st and 2nd edn. New York: Oxford University Press. Gillon R (1981) The function of criticism. British Medical Journal 282: 1633–1639. Gillon R (1986) Philosophical Medical Ethics. Chichester, UK: Wiley. Gillon R and Lloyd A (eds.) (1994) Principles of Health Care Ethics. Chichester, UK: Wiley. Gracia D (1993) The intellectual basis of bioethics in southern European countries. Bioethics 7(2–3): 97–107. Hare RM (1981) Moral Thinking: Its Levels, Method and Point. Oxford: Clarendon. Hargrove E (1989) Foundations of Environmental Ethics. Englewood Cliffs, NJ: Prentice Hall. Harris J (1985) The Value of Life. London: Routledge & Kegan Paul. Johnson L (1991) A Morally Deep World: An Essay on Moral Significance and Environmental Ethics. Cambridge, UK: Cambridge University Press. Jonsen AR and Jameton A (1995) Medical ethics, history of; The Americans; The United States in the twentieth century. In: Reich WT (ed.) The Encyclopedia of Bioethics, 2nd edn., pp. 1616–1632. New York: Simon & Schuster–Macmillan. Jonsen AR and Toulmin SE (1988) The Abuse of Casuistry: A History of Moral Reasoning. Berkeley: University of California Press. Lebacqz K (1995) Feminism. In: Reich WT (ed.) The Encyclopedia of Bioethics, 2nd edn., pp. 808–818. New York: Simon & Schuster– Macmillan. Lovelock J (1979) Gaia: A New Look at Life on Earth. Oxford: Oxford University Press. MacIntyre A (1981) After Virtue: A Study in Moral Theory. Notre Dame, IN: University of Notre Dame Press. MacIntyre A (1990) Three Rival Versions of Moral Inquiry: Encyclopedia, Genealogy, and Tradition. Notre Dame, IN: University of Notre Dame Press. Naess A (1989) Ecology, Community and Lifestyle: Outline of an Ecosophy. (Rothenberg D, trans.). Cambridge, UK: Cambridge University Press. Oakley J (1995) Medical ethics, history of: Australia and New Zealand. In: Reich WT (ed.) The Encyclopedia of Bioethics, 2nd edn., pp. 1644–1646. New York: Simon & Schuster–Macmillan. Parfit D (1984) Reasons and Persons. Oxford: Clarendon. Rawls J (1971) A Theory of Justice. Oxford: Oxford University Press. Reich WT (ed.) (1978) The Encyclopedia of Bioethics. New York: Macmillan. Reich WT (1994) The word ‘bioethics’: Its birth and the legacies of those who shaped it. Kennedy Institute of Ethics Journal 4(4): 319–335. Reich WT (ed.) (1995) The Encyclopedia of Bioethics, 2nd edn. New York: Simon & Schuster–Macmillan. Reich WT (1995) The word ‘bioethics’: The struggle over its earliest meanings. Kennedy Institute of Ethics Journal 5(1): 19–34. Sherwin S (1992) No Longer Patient: Feminist Ethics and Health Care. Philadelphia: Temple University Press. Singer P (1979) Practical Ethics. Cambridge, UK: Cambridge University Press. Taylor P (1986) Respect for Nature: A Theory of Environmental Ethics. Princeton, NJ: Princeton University Press. Veatch R (1981) A Theory of Medical Ethics. New York: Basic Books. Warren K (1990) The power and the promise of ecological feminism. Environmental Ethics 12(2): 125–146. Wulff H (1994) Against the four principles: A Nordic view. In: Gillon R and Lloyd A (eds.) Principles of Health Care Ethics, pp. 277–286. Chichester, UK: Wiley. Wulff H, Andur Pedersen S, and Rosenberg R (1986) Philosophy of Medicine – An Introduction. Oxford: Blackwell.

Bioinformatics and Ethics A Marturano, Catholic University of the Sacred Heart of Rome, Rome, Italy ª 2012 Elsevier Inc. All rights reserved.

Glossary Big Science A series of changes in science that occurred in industrial nations during and after World War II, as scientific progress increasingly came to rely on large-scale projects usually funded by national governments or groups of governments. Genetic information The heritable biological information coded in the nucleotide sequences of DNA or RNA (certain viruses), such as in the chromosomes or in plasmids. Human Genome Project A global, long-term research effort to identify the estimated 30 000 genes in human DNA (deoxyribonucleic acid) and to figure out the sequences of the chemical bases that make up human DNA. Findings are being collected in databases that researchers share. In addition to its scientific objectives, the project also aimed to address ethical, legal, and social issues (which the Project refers to as ELSI). Research findings are expected to provide a dramatically greater understanding of how life works

Introduction Bioinformatics is a multidisciplinary field of increasing interest in medicine, biology, and genetics. Bioinformatics can be also defined as an umbrella concept dealing with all the applications of information technology to the field of molecular biology. Surprisingly, discussions of ethical tensions and public policy choices in this field have not yet fully emerged. Indeed, all the ethical discussions in this field are histori­ cally confined to intellectual property and patents. We will argue that intellectual property and patents are only part of the ethical questions revolving around bioinformatics. Because of its multidisciplinary aspect, bioinformatics ethical problems go beyond simply intel­ lectual property rights discussions and explore other ethical aspects.

What is Bioinformatics? The term ‘bioinformatics’ was coined by Ben Hesper and Paulien Hogeweg in 1978 for the study of computing processes in biotic systems, but the history of

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and specifically how we might better diagnose and treat human disorders. Besides giving us insights into human DNA, findings about nonhuman DNA may offer new ways to control our environment. Information The attribute inherent in and communicated by one of two or more alternative sequences or arrangements of something (as nucleotides in DNA or binary digits in a computer program) that produce specific effects. Open source Refers to any program whose source code is made available for use or modification as users or other developers see fit. Open-source software is usually developed as a public collaboration and made freely available. Patent-and-publish regime The current methodological trend in virtue of which legal rights to the invention, discovery, or creation in academic settings are regulated. In particular the publication of an invention, discovery, or creation that should be first patented and then findings about its practical use.

bioinformatics is far older: computers emerged as impor­ tant tools in molecular biology during the early 1960s (with a notable exception in the field of protein biochem­ istry). A decade before DNA sequencing became feasible, computational biologists focused on the rapidly accumu­ lating data from protein biochemistry. Without the benefits of supercomputers or computer networks, these scientists laid important conceptual and technical founda­ tions for bioinformatics today. Still in 1998, the very definition of bioinformatics was a matter of some debate. According to Russ B. Altman, at that time some scientists interpreted bioinformatics nar­ rowly as the information science techniques needed to support genome analysis. Many had begun to use it syno­ nymously with ‘computational molecular biology’ or even ‘computational biology.’ Bioinformatics now entails the creation and advancement of databases, algorithms, com­ putational and statistical techniques, and theory to solve formal and practical problems arising from the manage­ ment and analysis of biological data. The primary goal of bioinformatics is to increase our understanding of biological processes. Important subdisciplines within bioinformatics include the development and implementa­ tion of tools that enable efficient access to and use and

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management of various types of information such as nanotechnologies and the development of new algorithms (mathematical formulas) and statistics with which to assess relationships among members of large data sets, such as methods to locate a gene within a sequence, predict protein structure and/or function, and cluster protein sequences into families of related sequences. In a famous statement, Manuel Castells claimed a theoretical convergence between the information and genetics fields. This proposition can be interpreted within the reductionist framework as a clear equivalence between genetics material and information, or even further an operational substitution of genetics material with information. According to Joel B. Hagen, it is tempting to trace the origins of bioinformatics to the recent convergence of DNA sequencing, large-scale genome projects, the inter­ net, and supercomputers. However, some scientists who claim that bioinformatics is in its infancy acknowledge that computers were important tools in molecular biology a decade before DNA sequencing became feasible. Although the pioneers of computational biology did not use the term ‘bioinformatics’ to describe their work, they had a clear vision of how computer technology, mathe­ matics, and molecular biology could be fruitfully combined to answer fundamental questions in the life sciences. Modern science relies to a very large extent on computer simulations, computational models and compu­ tational analyses of large data sets. Genetics, while it is usually considered a computer-independent science, since the Human Genome Project, as John Sulston repeatedly said, it has been strongly tied to computer technologies. The aim of the Human Genome Project (which can be seen as the turning point in the merging of computer technologies and molecular biology) was to use technologies of molecular biology to analyze the genetic structure of humankind, that is, to systematically put together genetic data (which are the basic units defin­ ing forms and functions of a human organism) and to speed up the cartographic and systematization processes of genes. To meet this goal, massive use of computer technolo­ gies was necessary, so molecular biologists had to rely increasingly on computer-aided sequence analysis tools. For example, they needed computer programs to com­ pare DNA and protein sequences, to search for coding regions in DNA sequences, and to predict the secondary and tertiary structure of DNA, RNA, and proteins: the Hunkapiller machines. These machines, implementing the so-called shotgun method for faster gene sequencing, are a clear example of how geneticists’ needs were ful­ filled only by using computer technology. Therefore, Antonio Marturano and Ruth Chadwick argued that there is no new genetics without computer

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technology. This statement (stronger than Castells’s) sought a wide-range merging – not just a mere theore­ tical convergence – of genetics and informatics, more in line not only with recent developments in bioin­ formatics, but also with its whole history. This history has seen the parallel growth between genetics and the availability of computer technology tools until they ultimately merged to form an institutionalized discipline. Finally, as Farris and Atkinson-Grosjean claim, bio­ technology is not a discipline with fixed boundaries, but it will evolve alongside the scientific projects that bioinfor­ maticians undertake. They may serve as the instruments of analysis, taking biological science beyond the mere processing of raw data into the realm of rethinking analy­ tical results. This continuing process of computational biological research inspired by technological develop­ ment, Farris and Atkinson-Grosjean conclude, may render current disciplinary boundaries obsolete.

The Idea of Information and the Question of Genetic Essentialism Since its infancy, bioinformatics scholars were interested in the ethical questions this newborn multidisciplinary discipline could raise. Russ B. Altman claimed that ethics should be one of the five components of an ideal graduate bioinformatics course: he argued that ethics should be designed to give students time to ponder the effects of technology on society, as well as covering issues of priv­ acy and security. However, in order to talk about the ethics of bioinfor­ matics, we should first understand whether genetic information has a special status that makes genetic infor­ mation differ from other types of information. This debate is usually related to that of genetic essentialism, which claims that the essence of a human being is defined by genes (we are our genes). If genetic essentialism is true, there then seems to be a fairly straightforward argument for the claim that genetic information is special. Moreover, answering this question involves some inquiry into the epistemological problems surrounding genetic information. The idea of genetic information, or better, of a code script into the cell, is ascribed to E. Schroedinger; the code script would be ‘‘a sort of cellular amanuensis, set to record the gross and microscopic features of the parental cell and pass the information thus obtained to the cell’s descendant’’ (Berlinski, 1976: 163). Other authors reject the idea that the concept of information applies to DNA because it presupposes a genuine information system, which is composed of a coder, a transmitter, a receiver, a decoder, and an information channel between them. No such components are apparent in a chemical system. Even

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if there were such a thing as information transmission between molecules, this transmission would be nearly noiseless (i.e., substantially nonrandom), so that the con­ cept of probability central to the physical-mathematical theory of information does not apply to this kind of information transfer. Some scholars claim that genetic information has some characterizing features, in particular, genetic information is intensely personal and affects not only biological exis­ tence but also social life: hence it must be treated with the greatest respect. This answer sees genetic information as morally different from other information as it impacts human life in a way (personal and social) that other types of informa­ tion cannot. This answer starts from a Kantian perspective as it focuses on the dignity of persons. Therefore, accord­ ing to this perspective, genetic information poses a threat to the dignity of persons that other types of information do not. Related to this idea of genetic essentialism is the idea that genetic information is special because it impacts the deepest level of human biology, a level that still requires extensive technological intervention to be brought into the open. On the contrary, another perspective sees nothing essential in genetic information when compared to other types of health-related information. According to Soren Holm, four claims are usually brought forward in support of genetic essentialism: genetic information is predictive, it can be transmitted to the offspring of a person; it is informative not only about a person, but also about other persons; and, finally, it is particularly sensitive and its disclosure is very problematic. Unfortunately, Holm concludes, many of those claims are actually shared with other types of health-related information. Nor is the combination of all four features unique or even special for genetic information. Congenital syphilis is at the same time predictive, transmissible to offspring, informative about others, and sensitive in the requisite sense. Three of the features happen to co-occur in the very common case of smoking (predictive, trans­ missible to offspring, and sensitive (at least in some countries)). Therefore, genetic essentialism, which assumes the uniqueness and independence of genetic information, does not provide a plausible argument for treating genetic information in a special category. The claim that genetic information is special compared to other kinds of health-related information is sometimes based on a further claim that there is some other kind of genetic information that makes it different. In particular, the argument that genetic information is predictive (usually the reason to consider genetic information unique) does not hold true. It is also worth pointing out that a great deal of genetic information is nonpredictive and much of nongenetic health-related

information is predictive. Knowing, for example, the LDL-cholesterol level in the blood of an individual can also predict that person’s risk of coronary heart disease. Such convergence between computational notions of information with the biological notion enables us to see that there really are not two different kinds of informa­ tion; information has the same meaning in information technology and in molecular biology. In each of these two contexts, we find signals that are expressed by ordering the states of physical substrates. Viewed in this light, the nature of substrates, whether they be silicon or carbon, is irrelevant; and it is irrelevant even if, in real-world situations, there seem to be contingent reasons for drawing differences. Finally, a third perspective sees ‘information’ in genetic information as used in both metaphorical as well as in literal senses. This perspective is different from those mentioned previously in this section (that argue for a moral uniqueness of genetic information). Indeed it moves from an epistemological debate (which dates back to Maynard Smith), whether genetic information is understood as semantic or syntactic. According to Griffiths, the idea that genetic information is a kind of information technology appears to be a weak argument: it can be represented as follows: 1. There is a genetic code. 2. In molecular developmental biology, there is talk of signals, switches, master control genes, etc. 3. Therefore, the information flowing in (2) is informa­ tion in the code of (1). In this blunt form, the arguments sound frivolous (or even a fallacy of equivocation over the concept of information), but many discussions of molecular biology, especially those for a nontechnical audience, describe something very close to this. Finally, according to Griffiths, beyond most informa­ tion talk in molecular biology there is a picturesque way to talk about correlation and causation. Such loose infor­ mation talk is equally applicable to nongenetic developmental factors. As S. Sarkar has noted: There is no clear, technical notion of ‘information’ in molecular biology. It is little more than a metaphor that masquerades as a theoretical concept and . . . leads to a misleading picture of possible explanations in molecular biology. (Sarkar, 1996: 187)

The present atmosphere, in which information talk is only applied to genes, makes this way of talking highly misleading. I have suggested here that it misleads people as to the forms of explanation in molecular biology. I also believe that the asymmetrical use of information talk partly explains the persistence of genetic determinism.

Bioinformatics and Ethics

Ethical Problems of Information Talk The notion of information as used in bioinformatics was basically an important operational instrument that helped and even boosted genetic research. Unfortunately, at one point, it collapsed or was naturalized, reducing a quite powerful heuristic model into the very research object. Such naturalization led to so-called essentialism and determinism in genetics. Those who defended that model (perhaps for mere business reasons) have even turned it into an untouchable dogma so that biological organisms were reduced to living computers, in particular with the way computers were understood in the early 1960s. In this way – paralleling RB Braithwaite’s famous statement on models – they dangerously transferred the logical necessity of some of the features of the chosen model (computers) into the theory (molecular biology). This danger is apparent when champions of genetic essentialism talk about genetic information; indeed, ‘information’ in this context must be understood with a metaphorical sense, at best with a mix of metaphorical and literal meaning. Therefore, any claim to an equiva­ lence between information and molecular biology, and in particular claims such as that biology ‘‘is, itself, an infor­ mation technology’’ (Economist, 1999: 97) is on a par with the claim that the planets compute their orbits around the sun. Taking information talk in biology too seriously is not merely a journalistic error. Many biologists, when asked to talk about their discipline in broad, philosophical terms, would represent it in the same light. This misunderstanding is not ethically neutral. It shapes public perception of science and therefore the way in which public and private funds are allocated. Moreover, such vulgarization of bioinformatics would be a misrepre­ sentation of its successes (even though the line between misrepresentation and good methodology is something ambiguous). Although we cannot determine whether we cannot know scientists’ motives or intentions in order to determine whether they are behaving improperly, some important business factors should be taken into account. In particular, until few years ago the entire field of genomics has had an aura of secrecy: during the Human Genome Project, American leaders wanted ‘‘the National Institutes of Health (NIH) to patent the human genome to prevent private entrepreneurs, and especially foreign capital, from controlling what has been created with American funding.’’ (Lewontin, 1993: 95). As a consequence of the Bayh-Dole Act (1980), researchers who were funded with public moneys were obliged to secure intellectual property rights on any commercially valuable discovery before putting the information in the public domain. The intent of the legisla­ tion was to encourage American companies to step in and develop products that would be protected by patent rights from pilfering by foreign competitors. After the successes

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of Celera Genomics under the leadership of J. Craig Venter (successes that included the announcement of the first draft of the human genome in June 2000 and a paper published on the human genome in the February 16, 2001, issue of Science), it could be argued that the actual patenting strategy now seemed focused on protecting the interests of the few corporations working in this field, strongly supporting the determinist paradigm. Finally, many scientists, supporters of the determinist paradigm, sit on the Board of Directors in many of bio­ technological companies. Such a conflict of interests, in my opinion, does not encourage the idea that they would be open to paradigm shifts in bioinformatics and molecular biotechnology: a paradigm shift in their discipline would mean reorganizing a well-established business (and consequently a loss of money), a change in public perception of science, or even a shift of power into other people’s hands. JC Venter’s personal story is very important: his different views on using the shotgun method for fast genome sequencing led to conflicts with James D. Watson, one of the two co-discoverers of the structure of DNA, when both were working at National Institutes of Health, and eventually to his own move to The Institute for Genomic Research (TIGR).

Ethical Problems in the Big Science: Openness The ethical problems discussed involving information talk are related to issues of openness. According to David B. Resnik, The principle of openness promotes the advancement of knowledge by allowing scientists to review and criticize each other’s work; science’s peer review depends on openness. . . . Openness prevents science from becoming dogmatic, uncritical and biased. Openness also contri­ butes to the advancement of science by helping to build an atmosphere of cooperation and trust in science and enabling scientists to use resources effectively. (Resnick, 1998: 88)

Openness is crucial in bioinformatics starting from the Human Genome Project. Indeed, what is called the race to genome was led by two main rival research groups: one supporting the patent-and-publish regime (the proprie­ tary regime) led by biologist J. Craig Venter and the open-source methodologies led by biotechnology Nobel laureate John Sulston. While the patent-and-publish regime aimed at strong secrecy around genomic data and research outcomes that considered business requirements first before being released publicly, the open-source methodologies apparently set up a series of standards for fulfilling the real idea of openness.

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The turning point of the competition between the two different research approaches was the publication in Science of the Celera Genomics paper detailing the results of data sequencing and how the academic commu­ nity would use this data. The material transfer agreement stated that academic users would be able to download up to one megabase per week from the Celera Genomics website, subject to a nonredistribution clause; if academics wanted to download more data, they would have to obtain authorization from a senior member of their institution guaranteeing that the data would not be redistributed. Members of the HGP community vigorously protested this agreement. Michael Ashburner, a former reviewing editor for Science, led the protest. He explained that such a strategy would be problematic for the future of genetics, because if the strategy employed by Celera Genomics was similarly adopted by other researchers in the field, ‘‘the data will fragment across many sites and today’s ease of searching will have gone, and gone forever. Science will be much the poorer, and progress in this field will inevi­ tably be delayed.’’ (quoted in Moody, 2004: 112) Others felt outraged that one of the fundamental principles of scientific progress – the publication of and free access to data – should be undermined by the way Celera Genomics wished to keep its data proprietary so that the complete database (including volumes of data on genetic variability in humans and the genomes of animals critical to biomedical research) available for data mining to any pharmaceutical company in exchange for money. Scientists were right to feel outraged: openness in science is one of the most important moral and technical traditional values: without openness we would have no scientific debate and therefore no advancement of science. Resnik has argued that in private industry, profit max­ imization is the primary goal and pursuit of this end frequently conflicts with openness. On the contrary, it is possible to claim that according to the stakeholder theory (dating back to RE Freeman, 1984), that does not hold true: profit maximization (i.e., the interest of a company’s shareholders) is not the real end of a business organiza­ tion. On the contrary, a business organization should take into account the interests of all people involved in that business.

Bioinformatics and Patents Openness is then not very compatible with the patentand-publish regime, as the latter undermines the growth of scientific discovery. An alternative to the patent-and­ publish regime was found in the bioinformatics field in the open-source philosophy. In popular and some scientific literature, open source refers to a vast and often incompatible set of phenomena

contrasting proprietary software: according to Stallman for both ‘‘the free software movement . . . and the open source camp . . . the enemy is proprietary (non-free) software.’’ (Stallman, 2009: 58) However, it is very impor­ tant to distinguish between open source and free software as their background and the implications are somewhat different. They share some practical projects but they have different views and outcomes. Their connection lies in their polemical target: proprietary software; the choice is rather between heavy licensing measures: patenting, in which everybody is excluded from exploring the new products, and new forms of copyright, in which no one is excluded, in principle, from exploring the new product. Whereas the free-software movement provides not only access to the source code but also the possibility to improve the source code, open source provides only access to the source code that, nonetheless, can be redis­ tributed within proprietary software. In the following, we will discuss their main differences. The Free Software Foundation (FSF) was started in 1983 to support the GNU project, which aimed at ‘‘creating a new software sharing community’’ (Stallman, 2009: 58) as a response to the growing industrial model of software development prioritizing software commercialization. The FSF sees free software as an ethical imperative, because only free software respects the users’ freedom. In other words, the FSF proposes a philosophy based on users’ freedom to cooperate. Free software here means not only that software must be freely available, but also there should be ‘‘freedom to run it, to study and change it, and to redistribute copies with or without changes.’’ On the other hand, the definition on the Open Source Initiative (OSI) considers issues in terms of how to make software better – in a practical sense only. The OSI website states that open source must comply with a series of criteria in order to fulfill its scope. In particular, the tenth and last protocol (‘‘The license must be technology-neutral’’ (Open Source Definition, version 1.9)) could suggest that the concept of open source ‘‘may be predicated on any individual technology or style of interface’’ (Open Source Definition, version 1.9) and, in particular, it explicitly cites genetics research. In protocol #6, indeed, it states: ‘‘The license must not restrict anyone from making use of the program in a specific field of endea­ vour. For example, it may not restrict the program from being used in a business, or from being used for genetic research.’’ (Open Source Definition, ver­ sion 1.9) The open-source philosophy therefore could be used as a model with applications to other spheres of technology because of its universality and neutral­ ity. Nor does it exclude business or commercial enterprises: ‘‘We want commercial users to join our community, not feel excluded from it.’’ (Open Source Definition, version 1.9)

Bioinformatics and Ethics

The major limitation of the OSI definition of open source is that it does not provide any restrictive clauses to address cases in which the protocol is broken. It is very difficult to predict what if any moral or legal coercion a violator would incur other than an implicit threat to be cast out from the open-source heaven. In other words, the OSI definition of open source accepts principles of dis­ tributive, contributive, and commutative justice but fails to mention retributive justice. This point, however, is a matter of debate; at the moment copyright attaches codes that are created, and copying or alteration of the code is then an infringement unless a license is granted to do so. Moreover, there is considerable debate over whether copyright is only compensatory or can be retributive. Certainly the state can prosecute copyright violations as a criminal matter, but this is not contemplated in OSI licenses. The most appealing feature, especially of the FLOSS philosophy for genetics and software research and there­ fore for bioinformatics, is the possibility for creating an open and virtually infinite research network based on the idea that the source code can be given away, enabling other researchers to fix and improve the software. Another positive feature is that open-source projects tend to generate much stronger communities than other types of projects. Because of its application to the Big Science phenom­ enon involving research centers from all over the world, the open-source philosophy seems to provide an explicit and updated ethical code reminiscent of Merton’s four rules for scientific practice aimed at ensuring the growth of certified knowledge: 1. Universalism: scientific truths are of an impersonal nature, that is, valid erga omnes, independent the scien­ tist and the place of discovery. 2. Communism: science is basically a social practice, based on past efforts influencing future efforts. 3. Disinterestedness: a scientist’s commitment to truth is his/her primary motivation. 4. Organized skepticism: the valuation of possible truths by means of open debate, peer review, and experimen­ tal replicability (Merton, 1996: 270). Such an ethical code may be utopian given its lack of any provision for coercive enforcement of these four idealistic principles and its failure to address the danger of the hacker attitude. The entire premise of the open-source philosophy is predicated on sharing knowledge of technological advancements broadly and creating and advancing such technological knowledge for the good of the community. As systems become more complex, calculations that are verifiable in principle, such as those used in genetics, are no longer verifiable in practice without public access to the code. It is therefore imperative for skeptical

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(or neutral) scientific inquiry that software used for simu­ lating complex systems be available in source-code form. Paul Rabinow maintains that the most important reward for scientists is the appreciation of their commu­ nity, including increased professional prestige. According to Merton, the trick in the system stems from the fact that scientists, while working for their own interests, are simultaneously collectively reinforcing the public good. But, according to K. Cukier, as the industry advances, there is a growing call among researchers to redraw the lines of intellectual property. Instead of simply learning to live with the current system, they want to upend it. In addition to graduate degrees, researchers are armed with moral arguments, evidence of economic efficiency, and a nascent spirit of solidarity, all of which are renewing (along Merton’s lines) the traditional ethos of cooperation found in the sciences and the academy. And the approach is gaining momentum: the open-source model comes from the neighboring industry of information technology. Its underlying principles are the communal development of a technology, complete transparency in how it works, and the ability to use and improve it freely provided improve­ ments are shared openly. Whereas proprietary software’s underlying code cannot be modified (and normally not even inspected) by customers, open-source products encourage users to engage in further product develop­ ment and improvement. According to M. Vicedo, the coordination of different tasks and cooperation among all the research groups proved to be two of the greatest challenges facing the HGP at its inception. Vicedo claimed: Some regulatory guide-lines could be established to secure the smooth functioning of the project, but the scientists concerned hold different views on this issue. J. Watson, for example, thinks that the groups will develop rules to co-ordinate their efforts as the investiga­ tions proceed. Other researchers, like Walter Gilbert (Harvard), think that clear rules should provide all parti­ cipating members access to the results. Others suggest that the need for groups to communicate to obtain mutual benefits will force them to co-operate. Elke Jordan believes that the HGP’s goals will be unattainable unless it is ‘built on teamwork, networking and collaboration.’ In his opinion, ‘This makes sharing and co-operation an ethical imperative.’ (Vicedo, 1992: 260)

Thus, the emerging patent-and-publish system between researchers and the pharmaceutical and biotechnologies industries that funded them (a merger of scientific research and business) raised concerns regarding cooperation. Although debate and discussion continue, a large biotech­ nology industry funded by a massive infusion of venture capital and an equally significant amount of capital from

284 Bioinformatics and Ethics large, often multinational pharmaceutical companies had become an established force. (Rabinow, 1999: 3)

The FLOSS rules – in particular those provided by the FSF – are explicit enough in terms of framing standardiza­ tion and supporting the traditional ethos of scientific research (as perceived by Merton) that they may be applied with minor modifications to genomic research. The hacker guru Eric Raymond claims that this philosophy promises a shift from an exchange economy to a gift economy, where status among peers is achieved by giving away things that are useful to the community. In particular, social aspects of science work in a similar way – activities such as publishing papers, giving talks, and sharing results help scientists obtain status among their scientific peers. Science, in this sense, is a sort of gift economy of ideas. The FLOSS model thus shares the basic nature of the Mertonian interpretation of the making of scientific research and simultaneously preserves the right of the scientist to recognition or attribution for her research or discovery. Some authors have criticized Raymond’s appli­ cation of a gift economy to open source. David Zeitlyn, for example, claims that Raymond’s idea of a gift economy is misleading at best. He considers such a concept a layman’s parable or metaphor. It is very difficult to establish whether Raymond’s concept of a gift economy is a good metaphor because it involves analyzing quite sophisticated concepts of the philosophy of science (such as metaphors and mod­ els) that go beyond the scope of this paper. According to Cukier, the Human Genome Analysis Group at the Sanger Institute in Great Britain contacted the father of the free-software movement, Richard Stallman, for advice even before the completion of the draft of the genome (which, controversially, received assis­ tance from the private-sector company Celera Genomics). Soon, draft license agreements and implementation plans were circulated, followed by a round of legal reviews. A ‘click-wrap contract’ was drawn up so that if a party refined a sequence by mixing the Human Genome Project’s public draft version with extra sequence data, they would be obliged to release it. ‘Protecting the sequence from someone taking it, refining it and then licensing it in a way that locked everyone in, was the primary objective,’ said Tim Hubbard of the Sanger Institute. (Cukier, 2003)

Hubbard is referring here to what is called the viral clause, central, as we saw before, in the GPL.

Conclusions The parallel in life sciences to the public policy debate about the balance between private land and public land is the debate over ownership of other natural phenomena,

such as the human genome, that represent a common good, according to John Sulston. ‘‘Progress is best in open source,’’ (Cukier, 2003) he concluded. Sulston was keen to use open-source methodologies for protecting the state-financed genomic data once Celera Genomics ‘‘was claiming to have ‘beaten’ us (the state-funded consortium) in the ‘race’ to the genome.’’ (Sulston and Ferry, 2002: 211) The idea was: . . . to put a note on the human genome data deposited in the public database by the G5 genome centres, say­ ing that anyone would be free to use the data in their own research or to develop products, and to redistri­ bute it in any form. However, anyone who did this would not be allowed to put in place new restrictions on its further development or redistribution. (Sulston & Ferry, 2002: 212)

Unfortunately, Sulston said the idea met with a chorus of disapproval from those at the public databases. Indeed, the main argument against the use of open-source access to the public database was that: It went entirely against the principle, hard won over the previous decades, that data deposited in the databases were completely free for anyone to use without restric­ tions. . . . They were vehemently opposed to encouraging the idea that anyone in the future who wanted to deposit data in the public databases could impose their own set of conditions . . . and finally . . . they foresaw it as a PR (property right) disaster, easily interpreted by Celera as an ill-intentioned spoiling tactic. (Sulston and Ferry, 2002: 212–213)

Therefore, Sulston and other leading members of the HGP dropped all discussion of open-source licensing or any other form of restrictions on the use of data from the public project.

See also: Biotechnology; Genomic Databases, Ethical Issues In; Human Genome Project; Intellectual Property Rights; Nanotechnology; Open Source Software; Patents.

Further Reading Altman RB (1998) Editorial. A curriculum for bioinformatics: The time is ripe. Bioinformatics 14: 549–550. Berlinski D (1976) On Systems Analysis: An Essay Concerning the Limitations of Some Mathematical Methods in the Social, Political, and Biological Sciences, Cambridge (MA): MIT Press. Bhardwaj M (2006) Looking back, looking beyond: Revisiting the ethics of genome generation. Journal of Biosciences 31: 167–176. Braithwaite RB (1953) Scientific Explanation. The Tanner Lectures. Cambridge: Cambridge University Press.

Bioinformatics and Ethics Castells M (2001) Informationalism and the Network Society. In: Himanen P (ed.) The Hacker Ethic and the Spirit of the information Age, pp. 155–178. London: Vintage. Cukier KN (2003) Open source biotech: Can a non-proprietary approach to intellectual property work in the life sciences? The Acumen Journal of Life Sciences 1. http://www.cukier.com/writings/ opensourcebiotech.html (accessed June 2010). Farris L and Atkinson-Grosjean J (2008) Mapping the boundaries of bioinformatics. Health Law Review 16: 16–18. Freeman RE (1984) Strategic Management: A Stakeholder Approach. Boston: Pitman. Griffiths PE (2001) Genetic information: A metaphor in search of a theory. Philosophy of Science 68: 394–412. Hagen JB (2000) The origins of bioinformatics. Nature Reviews Genetics 1: 231–236. Hesper B and Hogeweg P (1978) Interactive instruction on population interactions. Computers in Biology and Medicine 8: 319–327. Holm S (1999) There is nothing special about Genetic Information. In: Thompson AK and Chadwick R (eds.) Genetic Information. Acquisition, Access and Control, pp. 97–104. New York: Kluwer. Lewontin R (1993) The Doctrine of DNA, Biology as Ideology. London: Penguin. Marturano A and Chadwick R (2004) How the role of computing is driving new genetics’ public policy. Ethics and Information Technology 6: 43–53. Merton RK (1996) The ethos of science. In: Merton RK and Sztompka P (eds.) On Social Structure and Science, pp. 269–273. Chicago: University of Chicago Press. Moody G (2004) Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business. Hoboken, NJ: Wiley. Rabinow P (1996) Making PCR: A Story of Biotechnology. Chicago: University of Chicago Press. Rabinow P (1999) French DNA: Trouble in Purgatory. Chicago: University of Chicago Press. Raymond E (1998) Homesteading the Noosphere. First Monday; 3.10. http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/issue/view/97 (accessed June 2010). Resnik DB (1998): The Ethics of Science. London: Routledge. Sarkar S (1996) Biological information: A sceptical look at some central dogma of molecular biology. In: Sarkar S (ed.) The Philosophy and History of Molecular Biology: New Perspectives, pp. 187–232. Kluwer: Dordrecht. Schroedinger E (1944) What is Life. The Physical Aspect of the Living Cell. Cambridge: Cambridge University Press. Shannon C and Weaver S (1948) The Mathematical Theory of Communication Urbana, IL: University of Illinois Press. Stallman R (2009) Free Software, Free Society Selected Essays of Richard M. Stallman. Boston: GNU Press. Sulston JD and Ferry G (2002) The Common Thread: A Story of Science, Politics, Ethics, and the Human Genome. Washington, DC: Joseph Henry Press.

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Vicedo M (1992) The Human Genome Project: Towards an analysis of the empirical, ethical and conceptual issues involved. Biology and Philosophy 7: 255–277. Zeitlyn D (2003) Gift economies in the development of open source software: Anthropological reflections. Research Policy 32: 1287–1291.

Relevant Websites http://www.bioinformatics.org/ – Bioinformatics Organization. http://www.ebi.ac.uk/ – EMBL-EBI, European Bioinformatics Institute. http://www.ncbi.nlm.nih.gov/About/primer/ bioinformatics.html – National Center for Biotechnology Information. http://www.open-bio.org/wiki/Main_Page – Open. Bioinformatics Foundation Main page. http://www.opensource.org/docs/definition.php – Open Source Initiative, Open Source (Annotated). http://en.wikipedia.org/wiki/Bioinformatics – Wikipedia Entry on Bioinformatics.

Biographical Sketch Antonio Marturano (MA/BA Philosophy, La Sapienza, Rome; PhD, Philosophy of Law, State University of Milan) is adjunct professor at the LUISS universities and Sacred Heart Catholic University of Rome. He has an extensive research and teaching career across the Atlantic as he was Marie Curie Fellow at Lancaster University, Research fellow at the University of Exeter, and Visiting Lecturer at the Jepson School of Leadership, University of Richmond (VA, USA). He has published in many international journals; in particular he was or is editor for Bioethics, Business Ethics: an European Review (BEER), Ethics and Information Technology (ETIN), Information, Communication and Ethics in Society (ICES), Leadership Journal. He is on the board of Information, Communication and Ethics in Society, International Review of Information Ethics, and Integral Leadership Review. His research and teaching are focused on the ethical problems emerging by the intertwining of information technologies and molecular biology, and leadership and business ethics.

Biometric Technologies, Ethical Implications P McCarthy, (Formerly) Lancaster University, Lancaster, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Biometric A feature or characteristic, which can be physiological or behavioral, of the human body that can be used as a unique identifier. EURODAC European Dactyloscopy, a Europe-wide database collecting biometrics from asylum seekers. Designed to check individuals have not already applied for asylum status in another Member State.

Introduction The increased use of biometric technologies has been one of the more prominent developments of the twenty-first century. Biometric technologies are now a major indus­ trial sector and a major global market. The growth in the industry has been an important dynamic in terms of understanding not only the proliferation of technologies but also the increasing scope of biometric identifiers being targeted. This article highlights potential issues in bio­ metrics from an international perspective concentrating primarily on those areas where biometric deployments have been most prevalent, including Europe, Asia, and North America. To a lesser extent, mention is made of current deployments in the Middle East and South and Central America. However, utilizing comparisons between Asia, Europe, and the United States (although not suggestive of a direct correlation between other areas) is illustrative of the potential range in international issues with regard to biometric technologies. The field is sub­ stantially underresearched, and the dearth of empirical evidence concerning experiences with biometrics sug­ gests that little is definitely known about the implications of more widespread use of biometric tech­ nologies in terms of public reception. A dialog on international perspectives of the ethical dimensions of biometric technologies is also relatively nascent. As such, the contexts highlighted in this article may be seen as an explorative attempt to flag some neglected aspects.

Overview of Biometrics The simplest definition of a biometric is that it is a unique identifiable feature or trait linked to an individual. These can include behavioral, physiological, and biological

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US-VISIT United States Visitor and Immigrant Status Indicator Technology, one of the largest roll-outs of biometric technologies in the world. Now collects 10 fingerprints from all visitors to the UK. Biometric technologies Refers to either sensors or systems used to identify individuals through a biometric.

features, although variation in how much each biometric is a unique identifier remains limited by human charac­ teristics and technological capabilities. As such, whereas fingerprints are a good biometric in terms of identifying individuals, gait or hand geometry is less so, although it is believed that continued technological innovation will increase the effectiveness of these. Although biometric technologies have been associated with security issues, there are clear indications that the future of biometrics will be one in which they have spread beyond the ‘border’ to encompass various aspects of social life. Thus, this article explores not only the globalization of biometric technologies but also the implications of their continuing commercialization. The increased prominence of bio­ metrics has been especially visible in their use within such schemes as the US-VISIT program, which has been the largest rollout of biometrics internationally to take place to date. US-VISIT was one of a raft of bio­ metric deployments amid others introduced in Europe, Asia, and elsewhere. Primarily, these have been concen­ trated in airports or at other border points. There has also been an increased prominence in crime prevention and detection, such as the UK National DNA database set up in 1995, which expanded rapidly in size after 2000. These deployments have been accompanied by criticism concerning the privacy implications of the increased ‘digitalization’ and use of the human body as a means of identification. Since the terrorist attacks of September 11, 2001, however, they have been increas­ ingly seen as a vital component of the ‘war on terror.’ Biometric deployments have also made their way into schools, gyms, and computers, suggesting a widening scope of their potential usage. A problem faced by the industry and developers of biometric technologies, how­ ever, has been the pressure placed on them by policy makers who seem to view such technologies as a panacea

Biometric Technologies, Ethical Implications

for issues such as terrorism, crime prevention, and a wider goal of ensuring secure societies. Whether or not these goals are achievable are matters open to significant debate. Historical Uses of Biometrics If we see that biometrics is the use of bodily character­ istics as a means of uniquely identifying individuals, then archaeological evidence from a number of regions in the world show the long use of fingerprinting as a means of identification. In China where names are often found next to fingerprint impressions these were used to assign elig­ ibility and correct results for bureaucratic exams. Here, tablets have been discovered with impressions of finger­ prints being displayed alongside corresponding names of individuals. It has been reported that such measures were used to determine eligibility for civil service examina­ tions (and the assignment of the correct result) and were used in mercantile transactions. Such measures were crude, relying as they did on the ability of the naked eye to recognize or detect any patterns. There are a number of arguments regarding why an objectively sup­ ported identity of a person became important (e.g., the issuance of birth certificates and passports), which became prominent in the eighteenth and nineteenth centuries. These include the observation that urbanization wea­ kened traditional roots of identification in the community, that increased income allowed for indivi­ duals to travel between countries more frequently, and that the apparatus of state governmental and bureaucratic control required the identification of the population to allow for its management. However, as a number of his­ torical studies have demonstrated, mobility among populations before the industrial revolution may have been considerably underestimated. It is arguable that with the outbreak of World War I, citizenry documenta­ tion became increasingly important for participants in the war to control their borders from perceived threats such as spies. That this has parallels with states calling for the need to be able to control borders to detect terrorists is an interesting feature of current contexts. The spread of the use of an actual biometric to Europe can be seen in the adoption of fingerprinting as a major tool in forensic and criminal investigations at the turn of the twentieth century. Fingerprinting became quickly established as one of the main tools in the criminal justice system in the United Kingdom and other countries. The work of Sir Edward Henry, building on Galton’s work, was likewise instrumental in developing refined means of being able to uniquely identify individuals from their fingerprints. In terms of both investigation and the subsequent retention of fingerprints in crude early ‘data­ bases,’ this was a precursor for the automated systems that have become part and parcel of biometric deployments.

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Fingerprinting indeed supplanted the even cruder Bertillonage system of measuring body parts by the early twentieth century. The addition of DNA finger­ printing to the repertoire of criminal investigative tools is unsurprising, given the critical role of identification and particularly forensic identification within criminal justice settings. The Henry system indeed still plays a central role in the AFIS (Automated Fingerprint Identification System) that police forces internationally utilize, further reinforcing fingerprinting’s continuing role in criminal justice settings. The case of fingerprinting and its strong evidence base in terms of being a successful tool for criminal investiga­ tions, with the caveat that for the most part its utility is only as great as the database of existing fingerprints accompanying it, can also be linked with the further development of biometric technologies. It is the biometric we arguably will on a personal level have most experience with both to date and in the future. Internationally, it is also familiar, with many Asian countries using finger­ prints in identity cards and other official documents. Much of the current drive in the development of bio­ metric technologies can reasonably be said to be aimed at replicating these successes, albeit with proprietary devices and identification algorithms that can sustain or create new markets utilizing new biometric features.

Biometrics and Ethics: Historical and International Perspectives Fingerprinting was applied systematically in early crim­ inal justice systems and colonial administrative systems, with physical impressions of fingerprints being kept in large manually administered databases. With the advent of automated electronic, storage, retrieval and analysis of biometric features, powered by developments in comput­ ing biometric technologies have come of age. Since then, developments have been characterized by a number of recurring features:

• • •

Biometrics becoming automated (with advances allowing for new types of measurements) Increased storage (database infrastructures support­ ing enhanced biometric capabilities) More rapid analysis (increasing range of potential biometrics being used with wider applications). It should be remembered, however, that these trends are linked to the ethical and social challenges of biometric technologies. Developments in each of these trends reflect continued technical successes regarding the capabilities of biometric technologies, which leads to calls for their increased use, leading to more concerns regarding wider use and the problems posed by increased capabilities.

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Automation, Storage, and Analysis: Ethical Implications of Technical Advances Modern deployments of biometrics can be grouped by a number of functions that they perform. These are identi­ fication, verification, authentication and authorization. Furthermore, the type of matching performed using bio­ metric technologies is often grouped into one-to-one searches (in which a biometric, for example, is stored and matched with a template carried in a document or card by the individual) or one-to-many searches in which individual biometrics are scanned and compared against those contained in a database. These functions are not merely a technical issue; rather, because they reflect the manner in which biometric technologies are used, they are clearly linked to the types of ethical issues that are currently being debated. Given, for example, that random searches and identification using biometrics require data­ bases of ever increasing size and scale. Also, the existence of databases often leads to the issue of function creep, which is seen as one of the more problematic issues associated with biometric-related databases. Function creep is when a system, device or service’s original pur­ pose is changed after it has been established or during its operation. Function creep is often associated with tech­ nological advancement, in that technologies are used in new ways after they have been deployed. Function creep can also be a result of poorly defined policy objectives, for example, arguments were often made in respect of the UK’s proposed Identity Card that its purpose was not clearly stated nor what limitations there would be on agencies and government departments utilizing any linked databases. Similar concerns have been expressed in relation to the Dutch Passport Act, where the purposes for the creation of a centralized database are so vague as to render its potential usage almost completely open ended. In summation, advances in each of these three trends often seem to be accompanied by the logic that if we are able to do something, we clearly should, and that in terms of policy, setting limits of potential uses of the technology should be avoided. This demonstrably has clear implica­ tions for issues of consent autonomy as well as privacy. Advances in automation are also clearly linked to the identification of new potential biometric identifiers being targeted, so much so that it can be reasonably argued that we are now on the cusp of the emergence of a new generation of biometric technologies. First generation biometric technologies have been focused on recognizable bodily characteristics and features derived from the face, speech, hand geometry or ears. Second-generation biometric systems are focused on more intricate behavioral patterns indicated by the body (gait and movement) or biological traits, states, and conditions of the body (heat, ECG, DNA, and smell). Developments in these forms of biometrics encompass what have been called ‘soft’

biometrics as well as the idea that individual actions and behaviors can be predicted. Soft biometrics, as opposed to hard biometrics, seek only to generate a partial identity of an individual, such as gender, ethnicity, or age, rather than being a solely uniquely identifying feature of the indivi­ dual. However, these create a number of problematic issues because a key area of their proposed deployment is in profiling. The less dystopian view can see these technolo­ gies being deployed in a commercial setting–for example, tailored advertising from interactive billboards and screens to determine if someone is male or female. The predictive qualities that biometrics may or may not have represent a new area, the success or failure of which is not yet known in terms of the implementation of particular technologies. Automation is not only a feature of new types of biometrics being used but also a trend in the replacement of the human element in terms of identification. Thus far, this has primarily occurred at ‘borders,’ leading to ques­ tions regarding how intelligence will be realized with automated technologies and devices making decisions about and for individuals. An overreliance on technology for routine or critical decision making is likewise of con­ cern. The reported instances of difficulties for people mistakenly being placed on threat databases, for example, illustrate one way in which the technology is perceived to never ‘lie.’ Developments such as the Internet of Things and Assisted Living Technologies are also spurring research and development in biometric technologies. Biometric technologies will be critical to these develop­ ments, as devices that can recognize who we are, how we are, effectively and unobtrusively, will create for seamless ICT-enabled environments that can detect us, identify us, and respond to our desires and needs. The embedding of biometric technologies in these futures has not been explored in detail in the literature, but would appear to be even more challenging in examining the potential ethical implications. This continued expansion of a possible infrastructure of a biometrics future has, arguably, gone relatively unno­ ticed in the literature, given the overwhelming focus at times on how biometrics are being used to control travel movements and immigration. Such trends are also clearly welcomed by the industry because the spread of bio­ metrics into other fields will necessarily mean new markets, and the larger these markets are, the greater commercial viability there will be for these companies in the future. Such trends display an interesting set of characteristics when biometrics are considered interna­ tionally because whereas the focus in the West has been on issues related to security, in countries such as Japan and Singapore, the commercial uses of biometrics have been as important as their use in security contexts. The position of biometrics in these contexts – for example, in what has been termed the vanguard of the emergence of a cashless society – presents a wholly different set of

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concerns, albeit still rooted in the technical capabilities of biometrics. For example, the most popular biometric, the fingerprint, is an effective identifier in most cases. However, elderly people have a natural degradation of fingerprints as they age, as do those engaged in manual labor, young children are also unable to give a proper fingerprints. As such the use of fingerprinting solely excludes some from using the devices. The argument can, and is, made though that multi-modal solutions (where different biometrics are combined) will solve these issues, but this seems to be a continuation of the design turn, where we create/adapt technologies to solve problems caused by technologies in the first place. The subsuming of these issues into merely technical debates is both inadequate and unsatisfactory in terms of a consid­ ered evaluation of the implications of such a society. The increased level of storage associated with bio­ metric deployments is staggering in scale, with retention of biometric samples increasing exponentially with new uses. US-VISIT has tens of millions of fingerprint images, with no sign that the amount of retention will slow, albeit it can be expected that a number of these are duplicates due to people traveling on more than one occasion to the United States. Similarly, the amount of sensors and sur­ veillance devices, such as Closed-Circuit Televisions (CCTVs), Global Positioning System (GPS) trackers, and other devices, recording or detecting potential bio­ metric information has expanded at a phenomenal rate. Indeed, a number of projects and technologies exist that can further adapt this existing surveillance infrastructure in order to incorporate and take advantage of advance­ ments in biometric technologies, such as the creation of smart CCTV cameras (e.g., the SAMURAI project). These types of developments, if successful in terms of the technical challenges to be overcome, suggest an adap­ tation of current surveillance infrastructures that raises challenging issues for society and individuals. The increased storage capacities associated with biometric deployments are themselves linked with trends in ICT more generally, which has allowed for ever more massive databases to emerge. It is beyond the scope of this article to discuss in detail the revolution that has occurred in ICT during the past two decades. Suffice it to say that the applicability of biometric technologies in different fields and contexts has been almost wholly dependent on advances in computing power. This is a feature of auto­ mation, the ability to store linked to the creation of ever larger databases and the ability of biometric technologies to make analysis quicker; indeed, many biometrics can now be analyzed in real-time situations. This is important for the shift to new types of biometrics technologies used for potential real-time analysis of behavioral and predic­ tive biometrics. Increased speed is also important for determining whether particular biometrics will have uti­ lity; for example, for DNA analysis, reductions in analysis

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time will increase its applicability in more situations. Real-time analysis, or analysis in a short period sufficient for critical applications, is currently unrealizable for many biometrics, but given advancements thus far, it is not unlikely that much faster identification utilizing a wider range of biometrics will be possible. If we consider automation storage and speed of analysis together, then it is clear that continued advances in these are the infrastructural requirements for the emergence of a biometric future. Although questions of accuracy remain, the burgeoning ability of ICT to allow for biometric tech­ nologies to meet various requirements that governments or other actors set for them suggests that the technologies will not disappear. With regard to whether capability alone should determine whether or not particular technological applications are pursued, it is clear that these trends go to the root of key issues with biometric technologies as advances continue to support the use of biometrics in more settings. Given the previous discussion, we now turn to consideration of some of the key issues in terms of the international implications of the use of biometric technologies. Note that this is not an exhaustive account of the potential issues, given the diversity in social contexts when considering biometrics internationally. Liberty and Security In Western contexts, biometric technologies have thus far been seen primarily as a means of achieving security, particularly in relation to threats such as terrorism. As a result, debates have been framed by the idea that individual liberty must be set against the needs of society in terms of ensuring security. Ethical debates have likewise primarily, but not exclusively, been shaped by the ramifications of these twin concerns. Perhaps one of the most recurring features of these debates has been the notion that to ensure security, individual liberty must be sacrificed or, vice versa, that the more individual liberty is emphasized, the more security will suffer. This is of critical importance with regard to biometric technologies because it means debates are polarized between extreme oppositional positions that would appear to be very difficult to reconcile in policy. These difficulties often coalesce around the relationship between citizens and states and even between citizens and citizens and between citizens and ‘noncitizens.’ A debate that exists in terms only of a polarization of viewpoints can arguably never be said to reflect a true and accurate picture of how societies operate, and it is also as a result difficult to find a balanced appraisal or middle ground in debates. It must be stressed, however, that outside the European Union (EU) and the United States, it remains very unclear the degree to which this polarization of debates exists in other contexts. Some Southeast Asian countries, such as China, are not democratic states, and it is reasonable to assume that the relationship between citizen and state is

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very different from that in the EU and the United States. However, it is also arrogant to assume that within the EU and the United States, the definition of the relationship between state and citizens is as strong as we assume it to be in terms of the protection of individual liberty against ‘excesses’ of the state. In relation to ‘noncitizens,’ how this is defined in different areas of the world can often be said to be reflected in the nature and purpose of particular bio­ metric deployments. These, in turn, are also linked with the particular detection of ‘threats’ of different kinds. Biometric technologies are often a source of control, used in security, migration, and technological imple­ mentations they are nearly always driven by political imperatives with little alternative debates on options other than these technologies being used. Other uses in relation to noncitizens in these areas include the control of regular labor migration; for example, biometric sys­ tems operate in Israel at the border with Palestinian areas and form a part of its control over labor movements and the political agenda in relation to Hamas and the blockade. Singapore operates a similar system, albeit less intrusive, in order to monitor daily migrant workers crossing into its territory. Likewise, a similar system has been deployed at the border between Hong Kong and mainland China, again to regulate daily and other migrant flows. Such deployments are ostensibly on a par with other developments in biometrics in other areas of the world. The degree to which these uses of biometric technologies are shaped by concerns such as those expressed in debates on ‘Fortress Europe’ is unclear because, for example, in the case of Singapore and Hong Kong, both these states require daily migrant flows from neighboring areas for labor purposes. There is a significant difference between the totalizing and intrusive European approach and the notion of a seam­ less, quick, and efficient processing that characterizes the uses of biometrics in these examples. In Europe and the United States at least, debates on biometric technologies and deployment of the technolo­ gies have centered mostly on concerns raised by the ‘war on terror,’ but these concerns are often reflected in pres­ sure being placed on countries in other areas to introduce systems to aid in this war. For example, the United States decided to revoke visa-free status for countries that did not implement biometric passports subsequent to the commencement of the US-VISIT program. Indeed, inci­ dences of terrorist attacks attempted or successful have led to what can reasonably be labeled knee-jerk imple­ mentations of technologies. One example is the introduction of ‘body scanners’ in airports in the United Kingdom and other European airports in light of the 2009 attempted bombing of a flight to Detroit. That doubts were expressed regarding the ability of such scanners to detect the type of attack involved in this incident (with

explosive materials being woven into the would-be bom­ ber’s clothing) did not impede a rapid deployment of the technology. Likewise, concerns expressed regarding the impact of such scans on human dignity were arguably not given proper consideration with regard to how the devices would be implemented, further suggesting a poor decision-making process in relation to these tech­ nologies. On the other hand, set against this might be the exploration of the argument that such scanners might be welcomed by individuals, removing as they do the need (in instances in which nothing is highlighted by the scan) for people to be ‘patted down.’ However, this remains as unsubstantiated as the claim that individuals believe their dignity is violated by the scanners. Of more concern might be continued instances of misuse, such as that reported at Heathrow, and individuals being denied travel due to an unwillingness to undergo these scans. This suggests a reliance and enforcement of being subjected to a technological regime of surveillance and detection technologies related to biometrics that raises substantive questions regarding issues of social justice and dis­ crimination. The degree to which these debates are homogeneously repeated when we consider the interna­ tional and global dimensions of biometrics is very unclear. This feeds into debates about the global applicability of ethical standards and perspectives on biometric technologies. The centrality of the body in biometric systems in a technical sense is matched by its centrality in terms of the cultural and ethical perspectives. In some instances, such as the case for fingerprints, we can further state that these have been shaped by historical experiences. It is beyond the scope of this article to survey the extensive literature on conceptualizations of the body within var­ ied disciplines such as sociology, anthropology, or ethics. Any reading of this extensive and expansive literature would suggest that there are critical differences inter­ nationally in how individuals and communities within different cultures relate to the body and issues involving the body. One striking example of the range of potential differences can be seen in approaches and perspectives in relation to the use of fingerprints. Evidence suggests that fingerprinting remains, at least in the West, bound up in the stigma associated with its use in criminal settings. The legacy of the British Empire in utilizing a fingerprint in ID cards continued in most Asian coun­ tries, illustrating some of the fundamental differences in contexts between nations in the use of biometrics. Indeed, the United Kingdom’s new coalition govern­ ment has sought to repeal the previous government’s biometric ID card, citing the widespread public opposi­ tion to its introduction. Machines (sensors, readers, and detection devices) are the principal ‘readers’ of bio­ metrics, as opposed to the naked eye. Identification and detection is also automated. Automation occurs in terms

Biometric Technologies, Ethical Implications

of collection, storage, and analysis of biometrics. It is notable that a report from the UK government in 1914 rejected the expansion of fingerprinting in the United Kingdom due to its association with criminality and subject peoples in the Empire. Privacy and Data Protection Linked with the framing of debates in terms of liberty and security have been extensive debates in relation to bio­ metric technologies regarding the issues of privacy and data protection. In Europe, these debates have been par­ ticularly prominent, dealing with the framework of data protection through various directives in place in the EU. However, these directives do have an influence beyond Europe, either by governing how data is handled when sent from Europe to other countries, or by serving as a model for other countries to follow (i.e., India’s recent enactment of data protection laws). Although it would be disingenuous to say that privacy is not an issue in Asian countries, it remains to be seen whether the Western conception of privacy has any resonance or the European model of data protection has any applicability. Indeed, one might argue that current efforts in the Asian bloc to develop a data protection what framework for protecting privacy will be applicable internationally. Certainly, this could be strongly argued to be the case for India, whose push to develop a robust data protection framework is expressly framed in terms of the increased outsourcing of data to the country. Likewise, it could also be argued that privacy in terms of challenges from biometric technologies is not a press­ ing issue. Many supporters of the technology point to the fact that it is not an actual image of a body part that is being identified and stored but, rather, algorithmicderived templates. This in turn, they suggest, negates one of the more pressing concerns with the use of bio­ metrics as an identifier in that unlike passwords or pins, they cannot be changed if they are compromised or sto­ len. Indeed, drawing on this, Ann Cavoukian proposed biometric encryption as both a secure way of using bio­ metrics and a means of enhancing privacy for individuals. Biometric encryption would work by generating a unique encrypted template each time an individual wanted to use some service. This would replace passwords and pin number, for example, with secure means of identification utilizing a biometric given by an individual. It is clear, however, that in this instance a division needs to be made between public and private commercial uses of biometric technologies. Whereas commercial ven­ dors refer to the use of templates in terms of measures for protecting privacy, the same cannot be said for a growing number of public databases. In particular, where bio­ metrics are used in security contexts, or criminal justice settings, there is a growing trend for the retention of full

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images (US-VISIT and EURODAC) or samples (such as in the case of the UK National DNA Database). Ostensibly, this is done to increase the effectiveness and accuracy of these systems. Likewise, it could also be argued that a main feature of the use of templates is the reduced cost in terms of data storage by virtue of the fact that templates are of a smaller size. Given continued advances in storage capability, it could be reasonably assumed that more biometric uses will be accompanied by full retention of either the image or the sample. Such trends as noted previously dramatically increase the potential chances of biometrics being compromised, an outcome not wholly unrealistic given successive different governments’ experiences in losing critical and large amounts of data on citizens. Trust and Dependability Although these are undoubtedly important issues, it is unclear the extent to which these issues are as prominent in other areas of the world. For example, one issue less prominent at least in Europe is concern regarding the sanitation of biometric devices. In Asia, for example, memories of the SARS epidemic (and others) has meant much more focus on sanitizing experiences with bio­ metric technologies. Allaying fears for individuals from coming into routine physical contact with devices being used by large amounts of people on a daily basis. Likewise biometric deployments in Asia have often been much more commercially minded, either in retail (stores in Japan), housing, and leisure (Singapore). Trust and dependability have technical as well as social implica­ tions, in the former, systems must be continuously effective. By this it is meant that there is a need for the technologies to be reliable and consistent in terms of identifying individuals. Such notions in the technical lit­ erature are reflected by concerns regarding various types of failure rates, such as failure to enrol, false match rate, and false nonmatch rate. These error rates refer to an inability of individuals to give a ‘good’ biometric, an individual being wrongly identified as another individual, or an individual not being identified by the biometric system. Such technical jargon, however, subsumes a number of critical points regarding the use of biometric tech­ nologies and suggests a number of ethical concerns that have thus far in policy and industry not been ade­ quately addressed. These in turn will increase in terms of impact with both increasing proliferation at the national level and increased use within interna­ tional contexts. One example that has been a source of controversy in European countries is the Muslim practice of wearing burkas. Although the burka itself is a symbol merely of women covering parts of their body, this cultural practice in relation to the body has

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been controversial with the deployment of body scan­ ners. There have been instances of these intrusive measures inhibiting people’s ability to travel. Indeed, as the body scan is now compulsory at some European airports, those that refuse are denied boarding. Cultural confusion regarding the potential and role and usage of biometrics in a variety of settings is also a concern. For example, it is not unreasonable to suggest that utilizing a biometric to make a payment might be attractive to elderly persons due to the fact that they are not required to carry cash and render themselves vulner­ able to theft. However, this in turn needs to be set against the difficulties in providing a fingerprint the older one gets (with similar problems for children). These observations must also be set against the further observation that it is not inconceivable that new types of crime will emerge if biometrics form the gateway to financial reward in terms of illicit and illegal activities.

Social Implications of Biometric Technologies Although technological developments have provided a key impetus for the expanding proliferation of biometric technologies, an associated mission has been to create the legislative and operational infrastructure to enable an international biometric framework to develop. This has been an area fraught with political and ethical ten­ sions. The imposition by the United States of a more robust system of monitoring travelers to and from the United States is a case in point. In addition to the US-VISIT program, the United States called for the collection of passenger name records (although this remains a misnomer because more information that sim­ ply a name is asked to be collected, such as bank account details). The European Commission, with the support of a number of member states, sought to comply, but this was later struck down by the European Court of Human Rights. For Europe, this had the potential to be a damaging affair because individual member states such as the United Kingdom indicated that bilateral agreements bypassing the EU would be sought with the United States. Although it may be seen as a quintessential European disagreement, the incident highlighted the pro­ blem that biometric systems of identification are only as strong as the weakest point of entry into the system. That is, although robust procedures of identifying an individual exist in many Western countries (e.g., birth certificates, witnesses, and registrars), this is not a uniform system. Plan International, a development agency committed to promoting universal birth registration, estimated that in 2005 approximately 92% of births were registered in central and eastern Europe compared to just 36% in

South Asia, indicated that potentially millions of children have no formal state-recognized identification docu­ ments. Although this issue in terms of its impact goes beyond the realm of biometrics and it can be strongly argued that formally proving one’s identity within national contexts is a vital necessity (and an internation­ ally enshrined right), it suggests that global introduction of biometrics-based travel documents will exclude mil­ lions, especially as a hardening of attitudes toward immigration in general increases, and still prove to be insecure by the strictures and framing of said biometric systems in terms of counterterrorism activities, for example. In comparison to forced use of biometrics, commercial systems that offer some benefits appear to be well received within particular sections of society, such as the success of trusted traveler programs. Trusted traveler schemes currently operate at a number of international airports. One of the more established systems is the Privium system, which has operated at Schiphol airport for a number of years. The basic premise of such systems is that for a fee (often annual), individuals can go through a series of vetting checks and biometric registration on the airport’s databases. This allows the traveler to then avail of quick check-ins and avoid long queues at traditional border checking points by making use of a specially biometrically equipped aisle. Such developments poten­ tially highlight an important yet troubling trend for how biometrics might emerge as a result of their continued commercial proliferation. In this sense, we may clearly see a future in which divides emerge between those who are ‘trusted’ within the biometric system (paying for the privilege in many instances) and are able to avail them­ selves of a higher quality of service or avoid troublesome and intrusive security measures and those who are not trusted, who will be subjected to an ever increasing and varied means of biometric identification, surveillance, and detection. These kinds of potential developments have been highlighted in some literature in which the focus concerns the manner in which persons with disabilities, diseases, or those of a certain age might be excluded due to an inability to provide a biometric that can be a unique identifier. The potential that enrollment in biometric schemes will provide all of the benefits to those who pay for said services and will become present internationally in much the same way as airport lounges for first-class travelers points to worrying possibilities for discrimina­ tion and exclusion that are overlaid on traditional patterns of inequality. In terms of humanitarian operations, biometrics are likewise a potential concern. After the earthquake in Haiti, fears concerning children being abducted led to calls for mobile DNA databases to be established in order to prove the identities of children’s surviving rela­ tives. Similar actions to combat child abduction in China,

Biometric Technologies, Ethical Implications

where DNA databases have been established, can be set against the furor caused by such systems, for example, in the United Kingdom. Likewise, in humanitarian opera­ tions, in which strong national governmental operations and the voices of civil society opposition may likewise be muted, these measures are often met with minimal resis­ tance and there is minimal oversight of their operation. Again, there are commercial developments utilizing simi­ lar technologies for which individuals pay to avail themselves of such a service. One example is the creation of a DNA database by an Indian company that provides identification of bodily remains in the case of natural disasters as well as acts of war or terrorism. A focus solely on the use of biometrics by the state would then seem to be limited in considering the potential variety of organi­ zations making use of biometrics, generating a set of issues further compounded by the potential range and scope of legislative environments in which such organizations might be operating. The specter of profiling raises a number of substantive ethical issues. Profiling refers to a system in which indi­ viduals are categorized according to a number of criteria, such as race, gender, or age. Soft biometric behavioralbased profiling adds to the potential repertoire of cate­ gories by its ability to identify suspicious behaviors and suspicious elements to behaviors, such as loitering for too long in one place or entering an airport without luggage. The understanding here is that not all behaviors may be suspicious but that through a system of flagging particular elements, a more sophisticated risk management of places and locations can be achieved. However, as in other areas of biometrics, deployment profiling may not be solely a security and safety measure. Biometric technologies within commercial settings, for example, building on established techniques associated with the Internet (e.g., through cookies), can serve to create an individual profile of a person suitable for targeting particular adver­ tisements or targeting particular goods for said individual to purchase. It is also arguable that these forms of profiling may not be viewed in the manner in which profiling for security is conducted. There is growing evidence that there is a demand for biometrics on the part of individuals as end users of these systems, such as with trusted traveler schemes. Here, the ability to pay being linked with the body and further linked with utilizing the body in a manner that leverages increased access to premium ser­ vices or determines trustworthiness in terms of commercial areas is of grave concern. It suggests the emergence of preferred bodies reflecting preferred custo­ mers with others being subjected to intrusive measures on the basis of automatic profiles established for them. The potential emergence of a cashless society associated with biometric deployments is a further concern in this respect.

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Conclusions Biometrics has become associated primarily with issues concerning national security and its use is associated with places of international transport, such as airports. These can be seen as but one element of what might be con­ strued as a fundamental shift in how people identify each other and identify with one another. The construction of the ethical issues concerning biometrics primarily in terms of privacy, data protection, or the manner in which state and individual interests are balanced in the name of national security are, in the international sense, arguably misguided in terms of the numerous points that are missed in what might be a Western bias for issues that might be seen as important. The imposition of particular standards, however, is an issue that will arguably continue for the foreseeable future. This is clearly indicated by the almost universal adoption of biometric-based passports in the Northern Hemisphere. However, as discussed pre­ viously, the weakness of particular links in the chain suggests that faith in the ability of a biometric-based global travel system to truly combat the ills designated for it to assuage may be misplaced. If the effectiveness of these systems can then be questioned, it becomes perti­ nent to ask why they are being utilized: Mere technical refinements of the systems would not appear at first glance to be a workable solution to some of the issues addressed here. As such, is it then technology for the sake of technology and surveillance for the sake of surveillance (a feature of the UK’s obsession with CCTVs)? Likewise, there is relatively little empirical evidence regarding how biometrics are being received by individuals. In fact, it can be observed that those who are already marginalized within societies and interna­ tionally will be further subject to ever more increasingly intrusive biometric technologies as part of a framework of surveillance and detection technologies. Here, resistance to particular deployments of biometric tech­ nologies is muted or not present, in tandem with a general malaise in wider public opposition. The target­ ing of migrants, refugees, and asylum seekers by the full range of such technologies in this manner raises key ethical questions regarding how security has become a discriminatory and polarizing framework for those on the fringes of societies. In considering the commercial deployment of biometric technologies, similar questions are raised, albeit from a different point of origin in terms of their concerns. Here, it is increasingly apparent that biometrics will be just one more tool of discrimination in terms of those who do not have the ability to pay for particular services that will become associated with being a trusted individual as evidenced by bio­ metric enrolment within these services. The notion of a gated community will be expanded with our very bodies,

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with our ability to purchase being linked to our bodies, determining our position inside or outside this society. See also: Computer and Information Ethics.

Further Reading Bennett CJ and Lyon D (eds.) (2008) Playing the Identity Card: Surveillance and Identification in Global Perspective. New York: Routledge. Caplan J and Torpey J (eds.) (2001) Documenting Individual Identity: The Development of State Practices in the Modern World. Princeton, NJ: Princeton University Press. Lyon D (2001) Surveillance Society: Monitoring Everyday Life. Buckingham, UK: Open University Press. Lyon D (2007) Surveillance Studies: An Overview. Cambridge, UK: Polity. Sprokkereef A and De Hert P (2007) Ethical practice in the use of biometric identifiers in the EU. Law, Science and Policy

3(2): 177–201.

Van Der Ploeg I (2005) The Machine-Readable Body: Essays on Biometrics and the Informatization of the Body. Maastricht, The Netherlands: Shaker.

Biographical Sketch Paul was the Academic Fellow in Health Care Resources at the Centre for the Economic and Social Aspects of Genomics (Cesagen) RCUK, until February 2010. Since then he has con­ tinued as a Lecturer in Sociology and Research Fellow in Cesagen. Paul is Co-Theme Leader in Cesagen for Theme 2 ‘Therapies and Enhancement’ with Professor Ruth Chadwick at Cardiff University. Paul is also responsible for Cesagen’s European Union Framework Programme projects. Cesagen’s Theme 2 research programme ‘Therapies and Enhancement’ involves a number of researchers at Lancaster and Cardiff University. The theme is subdivided into three linked research areas, these are Genomics, Food and Agriculture (where projects on Nutrigenomics and in vitro meat). Translating Research, (where projects on Orphan Diseases and Mitochondrial Genetics, Tissue Engineering, Stem Cells and Regenerative Medicine. Genomics and Convergent Technologies, (work on forensic uses of DNA).

Biopower (Foucault) G Arnason, Leibniz University of Hannover, Hannover, Germany ª 2012 Elsevier Inc. All rights reserved.

Glossary Anatomo-politics of the human body Strategies and technologies to make human bodies docile and useful; one of two forms of biopower. Biopolitics (of the population) Strategies and technologies to manage human populations; one of two forms of biopower.

Biopower Power as it concerns human life, specifically with regard to the human body or human populations. The repressive hypothesis The hypothesis that sexuality was repressed during the nineteenth century and then liberated in the second half of the twentieth century. Techniques of power Systematic ways to affect how people act.

Introduction

Background: Power and Knowledge

Michel Foucault (1926–84) coined the term ‘biopouvoir’ (‘biopower’) to describe power as it concerns human life, in particular with regard to the human body on one hand and human populations on the other. The term itself was not much used by Foucault; in fact it appears only in one of the books he published in his lifetime (the first volume of the History of Sexuality) and there it is used only a few times within the space of six pages. The term is, however, both memorable and useful. The term also captures an area that was central to Foucault’s work on power and knowledge during the 1970s. In applied ethics, Foucault’s concept of biopower has been little developed, at least in the English-speaking literature. His more general concept of power and its relation to human populations and bodies, although rarely referred to as biopower, has found some use, primarily in discussions of topics that are taken to be closely tied to power relations within society, for example gender issues, sexuality, disability, and race. Since the use of Foucault’s concept of power invites social analysis of power rela­ tions, rather than conceptual analysis, it has been much more used by researchers within the fields of sociology, anthropology, and political science than by researchers within the field of philosophical ethics. Biopower is, how­ ever, relevant to a wider range of topics in applied ethics than gender issues, sexuality, disability, and race, and it does have its use for philosophical approaches to these topics. In what follows, I will first lay out the background to the concept of biopower, namely Foucault’s analysis of power and knowledge in his Discipline and Punish and The History of Sexuality (vol. 1). I will then discuss the particular case of biopower, and finally consider the meaning and application of the concept for applied ethics.

During the early 1970s, Michel Foucault wrote two books, whose central theme was power. Discipline and Punish was a study of the origin of the modern prison, and the first volume of the History of Sexuality was con­ cerned with the transformation of sexuality in the eighteenth and nineteenth centuries. The two books were originally published in France as Surveiller et punir: Naissance de la prison and Histoire de la sexualite´ I: La volonte´ de savoir in 1975 and 1976, respectively. Both studies are concerned with historical configurations of power and knowledge, and their transformations. In these books, and in various essays published at the time, Foucault developed a concept of power, which was not merely a new way of thinking about power but a new sort of power altogether. This new sort of power, Foucault argued, historically emerged in Western socie­ ties in the seventeenth and eighteenth centuries. This power is not the familiar hierarchical, top-down power symbolized by the sovereign or the oppressor. It is a horizontal network of power relations. This power is not something that the powerful have and the powerless lack, it only exists in action; it exists precisely in acts that have effects on other acts. Power is not only, or even primarily, mediated through laws, rules, and regulations, but through techniques, strategies, and tactics. The main characteristic of this power is not that it is constraining or repressive, which it can be, but that it is creative and productive; it is not only about control but also about resistance. It is about conflict and struggle. Another essential aspect of Foucault’s concept of power is that power is always closely tied to knowledge. There is no power without knowledge, and no knowledge without power. Knowledge and power are not, however, the same thing. Rather, knowledge has effects of power, and power requires knowledge. Foucault’s studies of the

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prison and sexuality show how the transformation of the practice of punishment and the transformation of sexual­ ity brought about more efficient means to manage populations and at the same time lead to not only an expansion in the production of knowledge but to whole new sciences. Many of Foucault’s critics complained that since power seems to permeate all human relations and actions, it is impossible to escape, and therefore there is nothing we can do. It may seem that Foucault’s power/knowledge analyses are paralyzing. But this is only so if one thinks of power as something inherently bad, as something that needs to be fought as such and in all its forms. Foucault does not present power as bad or good as such. Power involves danger and new forms of power present new sorts of danger. When we do find ourselves disadvan­ taged, or in danger of some sort, because of certain relations or formations of power, or because of the power effects of a certain kind of knowledge, we can resist and seek to alter the power relations in question or escape those particular power effects. Understanding the history, nature, and effects of a certain power formation or power relation can be an enormous step to resist or change it. Foucault-style power analysis should not lead to paralysis but, as Foucault once put it, to ‘‘hyper- and pessimistic activism’’ (Foucault, 1997: 256). Discipline and Punish Discipline and Punish opens with two fragments of text, written in the same place within a century of each other, yet worlds apart. First there is a grisly description from 1757 of a public execution in Paris, then we encounter a time table from 1838 regulating in detail the daily activ­ ities of young prisoners in Paris. The accepted historical view was, roughly, that punishment in the Western World was barbaric until the late eighteenth century, when the practice of punishment became more humane and civi­ lized through a series of reforms. Foucault turns this story around, both in terms of the nature of this transformation and its causes. The rise of humane punishment does not explain the transformation; it is rather merely one of its effects. The real transformation of punishment was not the replacement of torture and public spectacles with the relative comfort and privacy of incarceration and swift, painless executions. The main transformation was from punishing the body to punishing the soul. Instead of being inflicted with bodily pain, the convicted criminal lost a right, in particular the right to freedom or the right to life. Furthermore, the chief role of punishment changed from being retribution by the sovereign and deterrence of further transgressions by his subjects, to being a treatment and reformation of the criminal. The transformation of penal practices, according to Foucault, was a part of a radical reconfiguration of the

whole system of power within Western societies. The way society had happened to evolve had made the concen­ trated, brute, irregular power of the monarch clumsy and ineffective. A wider, deeper, finer distribution of power was required. And so the main objectives of the judicial reforms were, in Foucault’s words, ‘‘not to punish less, but to punish better’’ (Foucault, 1978: 82). Foucault describes these objectives as belonging to an overall strategy, which was formed out of a multitude of local needs, strategies, and objectives. Hence these objectives were not set by anyone in particular, and they were hardly recognized by anyone at the time. It is possible, however, to see in retrospect how the various local and particular plans, strategies, and objectives fit together in a global strategy: a new economy of power. The new economy of power may be more humane, and Foucault is not denying that at all, but this humanity is not central to the transformation – it is merely a by-product. Foucault does not start at the top with the general legitimization of punishment and then look at its applica­ tion. Rather, his analysis starts at the point where the power to punish is exercised, in the smallest details of how the body and soul of a person is subjected to punish­ ment, and then looks for plans and strategies, which add up to a larger picture of the practice of punishment. Foucault’s story about the transformation of penal prac­ tices is therefore not one of progress and rationality, of changes in legislation, changes in common views on crime and punishment, and the justification given for these changes. It is not a story about progress, but a story about how the power structure was transformed from monarchical hierarchy to a horizontal network of power, with not one center or top but a plethora of nodes and relations. This is not a story about regress either, it just makes the history of punishment on one hand more complicated and on the other hand it does away with teleological history, that is, history as having an inevitable aim and endpoint, good or bad. Foucault’s power analysis concerns the manifold relations within the network, that is, the minute details of where power is exercised, the minute details which are the component parts of the power network. It concerns such details as who is pun­ ished, for what, how, and through what procedures, the strategies of controlling the prisoners through surveil­ lance and structuring of daily activities, the planning of buildings to facilitate control, and how these organiza­ tions, procedures, and strategies of power are to be found not only in the prison but also in the school, the factory, the army barracks, and the hospital. It also concerns the production of knowledge around punishment: the need to find out what types of criminals and delinquents there are, what they are like, and how they became that type of a person. Knowledge about particular individuals is also required, that is, it becomes necessary to understand

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how the particular criminal became that type of person he or she is, in order to punish properly. The History of Sexuality, Vol. I In the first volume of The History of Sexuality, Foucault turns another commonly accepted story on its head. The accepted story is that sexuality was quite visible and unhidden until the early eighteenth century; but then, in the eighteenth and particularly the nineteenth centuries everything sexual was silenced, hidden, and repressed. Only in the twentieth century did we begin recovering from Victorian prohibitions and repressive Puritanism, finally becoming sexually liberated, little by little, as manifested by our relentlessly ‘frank’ discourse about sex and sexuality. Foucault calls this story ‘‘the repressive hypothesis’’ (Foucault, 1978: 10). Foucault does not deny that sexuality was repressed; sexuality was indeed repressed, but that repression was not at the center of the transformation of sexuality in the eighteenth century. Foucault’s rival hypothesis is that the overall effect of the transformation on ‘sex talk’ has not been restrictive, but it ‘‘has been subjected to a mechanism of increasing incitement’’ (Foucault, 1978: 12). There was no reduction of the techniques of power applied to sex; on the contrary, they gave rise to different kinds of sexuality and multiplied their number. Furthermore, the taboo of sex did not prevent studies of it, but it rather led to a science of sexuality. Sex talk was restricted in everyday language and all sorts of rules and prohibitions developed regarding who could talk about sex with whom and under what circum­ stances. The explosion of talk about sex was on the level of institutions. Foucault discusses, for instance, the Catholic church and how the sexual confession devel­ oped, from being detailed and explicit to being prudent, indirect and vague, but at the same time the sexual con­ fession became more important: ‘‘everything had to be told’’ (Foucault, 1978: 19). Another example is that of secondary schools in the eighteenth century: although talk about sex was surely censored and forbidden, the question of sex was a constant preoccupation. Foucault points to the layouts of the rooms, the rules of the house and the schools’ organization, and notes how sex was constantly and explicitly taken into account. Foucault suggests that the great control over sexuality and sex talk was not primarily to silence it but to sub­ jugate it and make it useful. This silencing may have been a precondition of the rise of the multiplicity of discourses about sex, that is, sex was silenced in some areas so there would be more of it in other areas. Through the power mechanisms our existence was sexualized, from our bodies to children to family relationships and social rela­ tions. Sex was not to be talked about, but at the same time it became a constant preoccupation in all sorts of relations.

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Usually, sexuality is thought to have a basis in the biolo­ gical function of sex. Foucault claims that this is not so. On the contrary, sexuality came first and gave rise to the notion of sex as a sort of a theoretical entity needed for the operation of sexuality. The story Foucault tells in the History of Sexuality is about sexuality in eighteenth century and Victorian times, and the implications for what Foucault thought was the mistaken belief that the so-called sexual revolu­ tion in the twentieth century was liberating in any way. On the contrary, it left the relevant power networks, and their deployment of sexuality, largely intact. It is an analysis of the emergence of a power network, which transforms sexuality to make it useful. In this context, Foucault discusses the need to manage populations, which arose with industrialization. Populations them­ selves, as something to be studied, emerged in the eighteenth century. The workforce had to be managed and organized in order to maximize its use for production, to maximize the potential of the society. The issue of sex became central for the management of the population and gave rise to scientific discourses and knowledge focused on sex. It is therefore with an increased and more effective governance of the social body that sexuality becomes an issue, primarily as a part of managing birth-rates but also as something that needed to be managed for its own sake. This management of sexuality is an important example of biopower, both with regard to the management of popu­ lations and with regard to the disciplining of the body. Sexuality is exactly where the discipline of the body and the management of populations intersect.

Biopower Historically, biopower emerged with the transformation of power formations in Western societies starting in the seventeenth century, but the most drastic transformation took place during the nineteenth century. Gradually the sovereign’s right to take life or let live, symbolized by the sword, was transformed into society’s power to manage life, both by caring for the life of people and by limiting it, even to the point of terminating life. This transformation consisted of various techniques of power, of various ways of administering life. Foucault claims that this new power over life, that is biopower, evolved in two forms, which he called anatomo-politics of the human body and biopoli­ tics of the population. They were distinct in the eighteenth century, but were eventually linked together through a multitude of relations and merged into a coher­ ent, new technology of power in the nineteenth century. The first form of biopower, the anatomo-politics of the human body, began to emerge in the seventeenth century with the rise of industrial societies, but its main

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development took place during the eighteenth century. As the anatomo-politics of the human body developed, it focused on the body as a machine and sought ways to discipline it, to make it both useful and docile, as it was integrated in the new economic system of industrialized societies. This is what ‘discipline’ means in Foucault’s Discipline and Punish. At first, the main institutional field of the anatomo-politics, or discipline, of the human body were the school and the army, but this aspect of biopower soon operated also in prisons, hospitals, and factories. Although these were the institutional fields discussed by Foucault, there were other fields as well. Although the discipline of the human body reaches far beyond mere physical exercise, this can serve as an exam­ ple, since unfit bodies tend to be less useful than fit ones. From the late nineteenth century, biopower is clearly manifested in sport and physical exercise in its various forms, both within institutions such as athletic youth organizations, athletic clubs, and gyms, and in less orga­ nized forms as sport movements or types of individual exercise. Even running, which appears on the surface to be a very simple, free, and noninstitutionalized form of exercise, is today a field of prolific knowledge production, power effects, and economic activities, focused on disci­ plining the body – not just the body of the competitive runner but every running body. This area of biopower includes scientific and medical experts; dissemination of scientific literature ranging from specialized science jour­ nals to popular magazines, websites, and blogs; techniques and equipment to monitor and measure certain physiolo­ gical values such as pulse, maximum heart rate, the concentration of lactate in the blood, and the maximal oxygen uptake (VO2 max) (and all the knowledge about the meaning of such information and what to do with it); diagnosis, treatment, and therapies for running injuries; the development and circulation of training plans, infor­ mation, and advice; websites that are a combination of a training diary, a social network, discussion forum, and an online store; a vast array of specialized shoes, clothing, and accessories; public events for everyone from the beginner to the ‘elite runner’; structures and strategies for recruiting beginners (running groups aimed at begin­ ners, so-called C25k training plans promising to advance the novice from sitting on the couch to running 5 km without a pause, etc.); and support, motivation, and encouragement from many corporations, employers and the state. The runner is constantly told what to do, what to eat, what to drink, what to buy, and what that kind of a person is or is becoming. Foucault’s analysis of power and discipline in Discipline and Punish, was an analysis of anatomo-politics of the body, but focusing of course on the penal system, on prisons and punishment. Already there he points to the wider use of the disciplinary techniques, for instance in schools, hospitals, military barracks, and so on. Foucault

gives a particularly striking example of the transformation of the soldier from the early seventeenth century to the late eighteenth century. In the early seventeenth century, the soldier was a certain kind of person – not because of his training but because of his natural strength, courage, and grace. One could recognize soldier materials by such characteristics. In the late eighteenth century, on the other hand, the soldier was someone who had been formed through training and discipline; almost anyone could be made into a soldier thanks to the new techniques of disciplining the human body. Similar fields of biopower have grown to surround patients, school children (and preschool children), as well as workers. Vast, complex networks of power and knowledge work to make their bodies useful and docile. This does not happen through any organized conspiracy of the government of industrialized societies, but it is rather the aggregate result of countless plans and strate­ gies at various points throughout society during industrialization and up to this day. The second form of power, the biopolitics of the population, emerged during the eighteenth century. It was concerned not with the human body but with the human species or human populations. Managing popula­ tions means managing reproduction, births and deaths, behavior, and health and sanitation. Biopolitics of the population consists in all sorts of techniques to intervene in and control populations. These interventions require the collection of enormous amounts of data about popula­ tions, analysis of the data and, finally, production of knowledge. This knowledge production led directly to the birth of demography and statistics in the eighteenth century. The concept of biopower is relevant today for various topics in applied ethics, most obviously for topics related to the cases studied by Foucault: punishment and sexu­ ality. The concept is also highly relevant for a great variety of other topics, for example reproduction, transformation of the body (from genetic and pharma­ cological enhancement to body-building, cosmetic surgery, and body art), public health, medical practice, biomedical sciences, race, and disability, to name just a few. The management of bodies and populations, and the sciences involved in that management, are so ubiquitous, that most topics in applied ethics may seem to invite an analysis of the mechanisms and micro-relations of power and knowledge. Still, it may not be clear to what extent such an analysis is relevant to ethics. That question in turn depends very much on our view of ethics. A power/knowledge analysis does not help us much if we are mostly interested in weighing risks, harms, and benefits. It is, on the other hand, extremely useful if we care about how we are managed and how we can resist the effects that that management has on us. We cannot escape power relations altogether, unless

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we leave society behind, but we can improve our stand­ ing in the power relations, defend ourselves against their effects, and open up new possibilities for action and being. See also: Human Nature, Views of; Poststructuralism.

Further Reading Arnason G (2011) Politics of Truth, Lefthanders and Icelanders. Amsterdam: Rodopi. Burchell G, Gordon C, and Miller P (1991) The Foucault Effect: Studies in Governmentality, with Two Lectures by and an Interview with Michel Foucault. Chicago: The University of Chicago Press. Couzens Hoy D (ed.) (1986) Foucault: A Critical Reader. Oxford: Basil Blackwell Ltd. Dreyfus H and Rabinow P (eds.) (1983) Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd edn. Chicago: The University of Chicago Press. Foucault M (1978) Discipline and Punish. New York: Random House. Foucault M (1978) The History of Sexuality. New York: Random House. Foucault M (1980) Power/Knowledge: Selected Interviews & Other Writings 1972–1977, Gordon C (ed.). New York: Pantheon Books. Foucault M (1994) Dits et e´crits, 1954–1988, 4 vols. Defert D and Ewald F (eds.). Paris: Gallimard.

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Foucault M (1997) Ethics: Subjectivity and Truth, Rabinow P (ed.). New York: The New Press. Foucault M (2003) Abnormal: Lectures at the College de France 1974–1975, Marchetti V and Salomoni A (eds.). New York: Picador. Foucault M (2008) The Birth of Biopolitics: Lectures at the College de France 1978–1979, Senellart M (ed.). New York: Palgrave Macmillan. Gutting G (ed.) (1994) The Cambridge Companion to Foucault. Cambridge: Cambridge University Press. May T (2006) The Philosophy of Michel Foucault. Montreal: McGill­ Queen’s University Press. Mills S (2003) Michel Foucault. London: Routledge. Rabinow P and Rose N (2006) Biopower today. BioSocieties 1: 195–217.

Biographical Sketch Gardar Arnason is assistant professor (wissenschaftlicher Mitarbeiter) at the Institute of Philosophy, Leibniz University of Hannover, Germany. He has a Ph.D. in philosophy from the University of Toronto, Canada. He has previously held posts as researcher at the University of Manchester, UK, and the University of Helsinki, Finland, and as lecturer at the University of Central Lancashire in Preston, UK. His research interests include neuroethics, bioethics, and the philosophy of science.

Biotechnology A Briggle, University of North Texas, Denton, TX, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Genetically modified organisms The organisms that result from the rDNA process. In vitro fertilization The technique of fertilizing eggs outside of the womb. Nuclear transfer or cloning The process of injecting the nucleus from a cell into an enucleated egg in order to create an embryo that is a genetic duplicate of the nucleus donor.

Definition and Historical Roots Both broad and narrow definitions of biotechnology exist. Broadly defined, biotechnology is the human manipula­ tion of living organisms or their parts in order to provide desired outcomes. This definition casts biotechnology as an age-old human activity. Humans have always hunted and used furs and other animal parts for clothing, cere­ mony, and shelter. They have also long used fire as a tool for manipulating ecosystems to better suit their game and crops. Humans have a long history of controlling their own fertility through various contraceptive techniques. For centuries, microorganisms have been used to make beer and wine, bread, and cheese. Artificial selection and domestication techniques brought about the Neolithic agricultural revolution, which birthed world civilizations. The term ‘biotechnology,’ however, more commonly receives a narrower definition, one that locates its origins much later in history. For example, the Organization for Economic Co-operation and Development defines bio­ technology as ‘‘the application of scientific and engineering principles to the processing of materials by biological agents to provide goods and services.’’ This indicates that biotechnology is not a collection of indivi­ dual techniques or crafts, each addressing a specific problem, but the systematic and large-scale use of modern scientific knowledge to control life. Thus, according to the more common definitions, biotechnology has its historical roots in the birth of modern science in the seventeenth century and its industrial applications throughout the twentieth century. In the late eighteenth century, the chemist AntoineLaurent Lavoisier remarked that ‘‘life is a chemical process.’’ Indeed, according to the modern scientific under­ standing, living things are fully explicable in terms of their

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Preimplantation genetic screening Techniques for screening the genetic makeup of embryos prior to their implantation in the womb. Recombinant DNA or rDNA The process of splicing genes from an organism of one species into an organism of another species. Xenotransplantation The transplantation of organs or tissues across species boundaries.

nonliving, chemical components. These components behave according to regular laws that operate the same everywhere. It is a mechanistic account of life. Renee Descartes, for example, argued that animals do not really act but, rather, ‘‘it is nature that acts in them according to the arrangement of their organs, just as we see how a clock, composed merely of wheels and springs, can reckon the hours.’’ Thus, the scientific understanding of life came to focus on natural laws that transcend all particulars and kinds. Life is matter in motions ordained by these laws. By contrast, the long-dominant Aristotelian tradition had understood natural laws as unique to each kind, or as the telos, end, or purpose of creatures of that kind. It is the nature of the tadpole to become the frog and inhabit both land and water. The frog is the result of an orderly coming to be, reaching an internally determined end. It is com­ posed of parts each with specific functions that contribute to its wholeness and its direcetedness toward a particular way of being with its own goods. For Aristotle, the ‘‘that for the sake of which’’ or function was an indispensable part of understanding living things (just as it is indispen­ sable for understanding machines). ‘Nature’ was the distinguishing functional features of a given species, whereas with modern science ‘nature’ became the opera­ tion of regular laws on matter. With Darwinian natural selection in particular, living nature is depicted as blind and dumb, the aimless interaction of random variations and wandering circumstances. This new view of life and nature was, from the begin­ ning, understood technologically. Descartes’ new science aimed for humans to become ‘‘masters and possessors of nature.’’ Complaining of the vain speculations of the ancients, Francis Bacon urged ‘‘that knowledge be used not as a courtesan, for pleasure and vanity only . . . but as a spouse for generation, fruit, and comfort.’’ The

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production of knowledge would culminate in ‘‘the con­ quest of nature for the relief of man’s estate.’’ Modern science upholds an intimate alliance between knowing and changing the world, as Bacon argued: ‘‘The nature of things betrays itself more readily under the vexations of art than in its natural freedom.’’ This established the vision of nature necessary for bio­ technology to emerge, but the term itself was not coined until the twentieth century. It was prefaced by the work of nineteenth-century organic chemists who successfully synthesized urea, quinine, and organic dyes. This bypassed the expensive and laborious processes of extracting natural products that are often rare and irregularly available. Biotechnology emerged more directly from the nine­ teenth-century field of zymotechnology, or the integration of the craft of alcohol production with the emerging science of biology, particularly Louis Pasteur’s work on the micro­ bial basis of fermentation. Zymotechnology was instrumental in the development of biotechnology because it strove for the systematic application of science on the industrial scales required for mass production of beer and other food products; it linked science and commerce. Gradually, the microbiological industry grew into a coherent, scientific approach to living systems rather than merely a variant of brewing. Furthermore, biological per­ spectives began to rival the dominance of chemistry as the basic science guiding industrial applications. In the late nineteenth century, biological science was advancing rapidly due to a threefold convergence. First, cell theory established cells as the basic building blocks of life, and cell biologists were characterizing cellular contents and processes. Second, gene theory was clarifying the laws that govern how traits are passed from one generation to the next, and geneticists were beginning to understand chromosomes as composed of genes that are instructions for making proteins. Third, Darwinian evolutionary the­ ory explained the origin of species through natural selection, suggesting that all species are related to one another through common ancestors. In 1917, the Hungarian agricultural engineer Karl Ereky coined the term ‘Biotechnologie’ as part of a sweeping plan to steer what he considered a backward, rural, peasant society into the age of industrial agricul­ ture. For Ereky, the key difference between an industrial and a peasant approach to pig farming was not the use of automated feeding and electrical pumps. Rather, it was the underlying scientific approach and vision that config­ ured pigs as machines converting carefully calculated inputs ever more efficiently into outputs. This vision of life was in ascendance at this time, as evidenced by the biophysicist Max Delbru¨ck’s 1884 lec­ ture beginning with the phrase, ‘‘Yeast is a machine.’’ In the early twentieth century, the biologist Jacques Loeb adopted an influential engineering approach to biological development that eroded the lines between the animate

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and the inanimate. Loeb argued that scientists must suc­ ceed in the artificial production of living matter. However, the term ‘biotechnology’ was also shaped by those espousing neovitalist models, according to which biological systems are endowed with some organizing character not available to human-made systems. For example, in the 1920s, the botanist Raoul France´ advo­ cated for a holistic and spiritual vision of biotechnology based on the notion that living things are controlled by more than mere physical and chemical laws. Thus, found­ ing visions of biotechnology sharply contrasted the mechanical and the vital, the utilitarian and the spiritual. Despite such clashes, many visions shared in the meta­ phor of a new industrial revolution. Biotechnology promised a life-centric alternative to the chemical industry that was poisoning air and water and the physical industry that was, after the development of atomic weapons, threa­ tening the very existence of life. For example, the historian Lewis Mumford contrasted ‘biotechnics’ to ‘megatechnics.’ Whereas the latter is market driven and expansive, the former seeks to mimic life in being balanced and selfregulating. The zoologist Lancelot Hogben saw biotech­ nology as an entire socialist and aesthetic alternative to polluting mechanical technologies. It culminates in a ‘bioaesthetic’ utopia of small-scale communities based on rational principles of the life sciences. The biologist Rachel Carson offered biological pest control as the solution to the health and environmental problems caused by chemical pesticides. She sketched a picture of biotechnology based on an ecological science more concerned to harmonize with and mimic nature than to dominate it. Biotechnology remains a term with contested bound­ aries informed by conflicting visions. Yet, in the main, it now denotes the knowledge and techniques employed in rendering the processes and products of life more readily available or better suited to a given desire. To rely on unaided nature to yield food, medicines, and energy is to be subject to limitations, imperfections, and unpredictable variability of supply. Biotechnology liberates humans from such limitations. As Francis Galton wrote in 1911: ‘‘What Nature does blindly, slowly, and ruthlessly, man may do providently, quickly, and kindly’’. But there are constraints on this power set by the natural potentialities available in wild plants, fungi, bacteria, and animals. However, contemporary biotechnologies further extend human powers, perhaps to the point – as some proponents hope and opponents fear – where nature or the naturally given can be dispensed with entirely.

Contemporary Biotechnology Microbiology continues to be a major component of the biotechnology industry. For example, hundreds of anti­ biotics and other pharmaceutical agents are derived from

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fungal fermentation. However, in the second half of the twentieth century, a deeper knowledge of genetics and molecular biology gave humans greater powers over the living world. The resulting techniques for genetic engi­ neering and the genetically modified organisms (GMOs) those techniques produce comprise the core of contem­ porary biotechnology. Its key activities include the isolation, identification, manipulation, storage, and even creation of genes. The 1953 discovery of the double-helical structure of DNA by James Watson and Francis Crick was the key precursor to this development. This helped make possible the 1973 development of technologies for recombinant DNA (rDNA) by Herbert Boyer and Stanley Cohen. rDNA entails the use of restriction enzymes to cut a specific genetic sequence out of one cell and insert that sequence into another, usually a bacterial, cell. As the recipient cell divides, it produces copies of the recombi­ nant (newly inserted) DNA. It also produces the protein coded for by the inserted piece of DNA. For example, in 1982, the U.S. Food and Drug Administration approved the use of human insulin produced in genetically mod­ ified bacteria. Decoding sequences of DNA was time-consuming and tedious until the development of automated sequencing techniques. Most important, in 1984 the biochemist Kary Mullis perfected the polymerase chain reaction (PCR) technique. PCR amplifies a single piece of DNA across several orders of magnitude, readily producing millions of copies of the original. An important application of PCR is DNA sequencing, which is the determination of the order of nucleotide bases in a molecule of DNA. Determining this order is necessary for identifying individual genes and the proteins that they code. In short, PCR permits the rapid processing of information contained in any strand of DNA. This and related techniques were essen­ tial to the successful completion in 2000 of the Human Genome Project, an international scientific endeavor to identify and map the genes comprising the human gen­ ome. Many researchers on this project have since shifted focus to the human proteome in order to characterize the complete set of proteins expressed by the genome. Another common procedure in contemporary biotech­ nology is DNA probing, which is used to map the position of a gene on a chromosome and screen for the presence of particular genes. DNA probes are also used in DNA profiling or fingerprinting, most often used in criminal investigations to identify individuals on the basis of their unique genetic profile. Genetic engineering entails the direct manipulation of an organism’s genes, unlike the indirect or mediated manipulation entailed in selective breeding. Furthermore, rDNA bypasses species boundaries, allowing genes to be transplanted from any species to any other species. At the molecular level, every organism functions in the same

way. Living things are not butterflies and frogs, aspens and maples. Rather, they are packages of information or patterns that perpetuate themselves and can be trans­ mitted as a message. Thus, with its focus on genes, contemporary biotechnology compliments the metaphor of life as machine with life as information. DNA is a blueprint or a program composed of digital information. Biotechnology becomes the activities of reading, copying, and rewriting that information. Not surprisingly, contemporary biotechnology is increasingly integrated with computer and other informa­ tion technologies. ‘Biocomputing’ refers to the use of organic systems for controlled computation or informa­ tion processing. ‘Bioinformatics’ denotes the application of information technologies to molecular biology and genetics. Bioinformatic activities include the mapping and analysis of DNA and protein sequences as well as the creation of biological databases such as gene banks that store the germplasm of extinct plants and biobanks that archive the genetic material of humans. The combination of biology and information is also apparent in synthetic biology, the latest instantiation of biotechnology. Synthetic biologists use gene sequencing information and rDNA not just to read and manipulate existing genes but also to synthesize new genes (creating strands of DNA that do not exist in nature) that could reconfigure the metabolic pathways of cells to perform entirely new functions. For example, in 2003, scientists inserted genes from three different organisms into the Escherichia coli bacteria to create a new metabolic pathway that produced the anti-malaria drug artemisinin. Scaling such processes to industrial scales requires the creation of standardized biological parts modeled on the plug-and-play design of electronic systems. By deleting a few genes and inserting a few others, the same E. coli cell could be used to produce a biofuel. The integration of biology and information is so thorough in contemporary biotechnology that it is common for scientists to use computing metaphors such as ‘reprogramming’ cells and ‘booting up’ organisms once rDNA or artificial DNA is inserted. Other revolutionary techniques of contemporary bio­ technology involve reproductive processes and the isolation and manipulation of gametes. Two procedures are especially important. First, in vitro fertilization (IVF) is a process whereby egg cells are fertilized by sperm out­ side the womb. In 1978, the first human to be conceived through IVF was born. Second, nuclear transplantation or cloning involves removing the nucleus from an egg cell and inserting the nucleus taken from any cell (including somatic cells). The egg with the transplanted nucleus then develops into a new organism genetically identical to the one that supplied the nucleus. In 1953, this technique was first successfully used to clone frogs. In 1996, the first cloned mammal, Dolly the sheep, was born.

Biotechnology

Goals Private and public investments in biotechnology are typi­ cally aimed at five broad goals, namely improvements in (1) food production (agricultural and food biotechnology), (2) environmental health (environmental biotechnology), (3) materials production (industrial biotechnology), (4) human health (biomedical technology), and (5) security and national defense. Biotechnology firms are also moti­ vated by the goal of wealth, which can be achieved if their products are widely used in the service of these other goals. The link between biotechnology and these goals lies at the heart of proponents’ arguments in favor of biotechnology and opponents’ arguments against it. The predominant goals of agricultural biotechnologies are given urgency by several trends, including population growth, rising standards of living and consumption levels, climate change, persistent malnutrition and hunger, and dependence on toxic pesticides. Key objectives of agri­ cultural biotechnology are designed to accommodate and in some cases reverse these trends. They include increas­ ing crop yields, decreasing crop vulnerabilities to environmental stressors (e.g., flood, drought, and poor soil conditions), increasing nutritional qualities of crops (e.g., vitamins and minerals), reducing dependence on pesticides, and producing novel substances (e.g., insulin and vaccines). Genetically engineered or transgenic crops were first commercially grown in 1996. By 2008, 25 countries planted such crops covering more than 800 million ha. World leaders are the United States, Argentina, Brazil, India, and Canada. Most crops are grown in North America, Latin and South America, and in other devel­ oping countries, including three in Africa. The three largest biotech crops are soybeans, maize, and cotton. The vast majority of foods in North America contain genetically engineered ingredients, whereas foods found in most of Europe, due to stricter regulations, have fewer such ingredients. One of the most common genetic alterations to crops confers pesticide and herbicide resistance to crops (e.g., Roundup Ready soybeans produced by Monsanto). Approximately 100 000 ha are planted with Bt crops that contain a gene from the bacterium Bacillus thuringensis that codes for a natural insecticide. Transgenic animals are commonly created to produce human hormones, drugs, or other useful substances in practices sometimes referred to as ‘pharming.’ In the United States, the recombinant hormone rBGH (bovine growth hormone) is widely given to dairy cattle to increase milk production. Growth hor­ mones have also been used to create larger, faster growing varieties of fish. Food biotechnology largely aims at improving food quality and taste. The Flavr Savr tomato, for example,

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was genetically altered to reduce spoilage during shipping and storage. Functional or medicinal foods are those possessing health-promoting or disease-preventing prop­ erties beyond the supply of nutrients. This includes vitamin, mineral, and oil fortification. Environmental biotechnology aims at three main goals: cleaning up pollution and waste, monitoring envir­ onmental health, and producing energy and materials in environmentally friendly ways. Ananda Chakrabarty of the General Electric Company developed the first patented form of genetically engineered life. It was a microbe that had been modified to digest petroleum in order to help clean up oil spills. This is an example of bioremediation, or the use of microorganisms to return a natural environment altered by contamination to its pre­ vious state. Bacteria engineered for bioremediation are also often engineered with bioluminescence so that researchers can monitor their effects. ‘Ecosystem engi­ neering’ denotes the combination of basic knowledge, problem-solving techniques, and monitoring in the ser­ vice of ecosystem functioning. Biofuel research and production is driven by growing global energy demands and dependence on polluting, finite fossil fuels. Biofuels can be generated from landfill off-gassing and recycled oil, as well as from crops high in sugar, starch, or oil that can be burned to yield energy. They can be derived from food crops, non-food crops, or algae. Industrial biotechnology involves the use of cells or cell components to manufacture industrially useful pro­ ducts. The production of bioenergy or biofuel is often classified in this category, and indeed it overlaps with all types of biotechnology insofar as they entail industrial processes. Industrial biotechnology focuses primarily on the creation of enzymes and proteins that are useful in a variety of products and sectors from laundry to textiles and tanning to the processing of food, beverages, and animal feed. In some of its earliest manifestations, biotechnology was linked to eugenics or various interventions in repro­ duction to improve the qualities of the human species or a particular population. From the mid-twentieth century, the focus of biomedical technology shifted to the tradi­ tional goal of medicine to improve the health of individuals, although it also poses refined eugenic appli­ cations. Biomedical technologies are used across the spectrum of medical activities: screening, diagnosis, mon­ itoring, therapy, and interventions that enhance or go beyond therapy. The vast array of biomedical technologies can be roughly grouped according to three predominant goals: extending life, controlling reproduction, and modifying human capacities and behaviors. The first goal is the broadest because it encompasses much of the traditional aim of medicine to cure disease. It includes many pharmaceuticals and the emerging field of

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pharmacogenomics, which is the study of the relationship between an individual’s genome and drugs. The goal is to design drugs, using computer models, that are adapted to specific individuals. The resulting ‘personalized medi­ cine’ also pertains to techniques for determining a person’s predisposition to a particular disease or condi­ tion. Many other biotechnologies serve the goal of life prolongation, including respirators, pacemakers, and arti­ ficial and transplanted organs and tissues. The related fields of biomaterials, tissue engineering, and regenerative medicine all strive to develop biological substitutes that restore, maintain, or improve tissue or organ function. Transgenic animals have also been created in service of the broad goal of extending life. For example, mice have been given human genes associated with cancer for use in experiments and drug trials, and pigs have been given human genes in order to create more compatible organ donors for xenotransplantation. Cloning and IVF are examples of techniques in the service of controlling reproduction. Both techniques cre­ ate embryos and potentially embryonic stem cells that can be used in biomedical research. Another important tech­ nique is preimplantation genetic diagnosis or screening (PGD or PGS). PGS permits pregnancy to begin using only those embryos that carry desired genetic traits. It is most commonly utilized by couples at risk of having a child with a chromosomal or genetic disease. However, it can also be used to serve the goals of sex selection and selection of embryos that will develop into a compatible bone marrow or umbilical cord blood donor for a sick sibling. Biomedical technologies in the service of the third goal include artificial limbs, which can restore physical capa­ cities with increasing precision and ease of use. Other important examples are cognitive intervention such as deep-brain stimulation; brain–computer interfaces; and psychotropic drugs that can restore motor functionality, improve communicative capacities, relieve anxiety, and otherwise alter mood and behavior. The biomedical man­ agement of capacities and behaviors can often be in the service of goals that go beyond therapy. Examples include the use of anabolic steroids, mood brighteners, and mem­ ory boosters. Finally, biotechnologies often serve the goals of secur­ ity and national defense. This, too, is a cross-cutting category because biotechnologies in the service of other goals often have security implications. There are two general categories. First, bioweapons use pathogens for the purpose of killing or harming a person or group of people. The weaponization of biological agents has a long history, but contemporary biotechnologies can create more lethal weapons through the creation of novel or more virulent pathogens. Second, biodefense or biosecur­ ity refers to techniques for monitoring bioweapons, deterring and protecting people from biological weapons

attacks, and responding to such attacks. Examples include vaccines against anthrax and other weaponized agents. Biosecurity also encompasses certain biometric technolo­ gies for recognizing individuals based on physical or behavioral traits (e.g., retinal scans). These are often used to restrict access to classified information or materials.

Ethical Issues: Failures Biotechnology has sparked a great deal of ethical criti­ cism. This often frustrates proponents of biotechnology because the goals outlined previously seem so obviously good and so obviously advanced by biotechnology. One way to begin thinking through the variety of critical positions that have been staked out is to make distinctions with respect to these goals. First, some are concerned that biotechnologies have not or will not succeed in achieving the goals. Second, some are concerned that biotechnolo­ gies may achieve the goals but they will do so only in conjunction with unacceptable trade-offs or unintended consequences that will ultimately undermine the goals. Third, some are concerned that biotechnologies will secure the goals for some but not for others or at the expense of others. Fourth, some argue that biotechnolo­ gies have and may continue to succeed in achieving the goals, and that this success itself constitutes cause for concern. The first three concerns can be treated together because ultimately they all contend that biotechnology is objectionable because of its failures. It fails outright, fails to realize the goals within tolerable levels of risk, or fails to realize the goals in ways that are equitable and respectful of individual liberties. The fourth concern is unique because it contends that biotechnology is objec­ tionable because of its successes. Thus, it is treated in the following section. The best example of the first objection relates to the claim that agricultural biotechnologies can help alleviate world hunger. Critics respond by arguing that starvation and malnutrition are most often the result of political and social circumstances, rather than food shortages, and thus are not amenable to technological fixes. The Green Revolution (the mid-twentieth century worldwide expansion of modern agricultural technology), from this perspective, did not lift people out of poverty but only subjected them to new forms of corporate and technolo­ gical control, new environmental problems from mechanization, and new vulnerabilities to world markets. Another example is the argument that creation of trans­ genic animals to study human diseases is bound to fail because of remaining differences that make extrapolation to human cases unreliable. Biotech proponents, however, have challenged both positions. For example, the

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argument that food production is not related to famine has several faults, and many positive outcomes of the Green Revolution can be cited. The second critique, centered on safety, is more com­ mon and essentially amounts to the claim that the power of biotechnology disrupts the complex balance of living nature in ways that are likely to be harmful. Critics argue, for example, that GMOs may lead to gene flows that cause wild relatives to mutate into ‘superweeds.’ GMO genes can also contaminate non-GMO crops and threaten biological diversity. Some believed that Bt crops harmed non-pest insects such as the Monarch butterfly. The rule of unintended consequences was also evident in the way that mass production of biofuels contributed to increases in food prices. Critics also raise human health concerns about GM plants and animals, especially their potential for causing allergies and exacerbating antibiotic resis­ tance. They further challenge biomedical techniques that may alter human physiology in unpredictable ways. Another area of concern within the second critique is the dual-use dilemma, which arises when the same research project has the potential to be used for harm as well as for good. For example, in 2005, the complete genetic sequence of the 1918 influenza A (H1N1) virus was published in Science. This knowledge could help scientists identify and combat the next pandemic. However, it could also be used by bioterrorists to cause the next pandemic. In light of such concerns, critics often espouse some version of the precautionary principle, arguing that biotechnologies should be considered risky until definitively proven otherwise. It is difficult to say what constitutes definitive proof, but there is no evidence that anyone has become sick from eating genetically modified foods, and no obvious envir­ onmental disaster has occurred. Indeed, U.S. federal agencies have relaxed some regulatory measures and con­ curred with the biotech industry that genetically engineered plants are not substantially different from those derived from traditional breeding techniques. Furthermore, in scenarios in which threats exist, propo­ nents of biotechnology can argue that oversight and regulatory regimes will prevent harms. Nonetheless, suc­ cessfully averting past disasters is no guarantee that future problems will not emerge. The third critique has two related facets. Liberty and rights are ethical issues for those concerned that biotech­ nology will give some people power over others. Justice is an ethical concern for those who argue that biotechnology gives the rich and unjust advantage over the poor or that the benefits and burdens of biotechnology will be unfairly distributed. Critics have claimed that biotechnology raises a host of individual rights and liberties issues: Government-spon­ sored eugenics programs threaten procreative liberties, genetic screening and biobanking threaten rights to

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privacy and raise fears about discrimination by employers or insurers, life support systems pose new challenges to the ‘right to die,’ the nonlabeling of GM foods under­ mines one’s right to know, and the use of DNA evidence in the courtroom must occur in the context of a defen­ dant’s right to an independent expert. It could also be said that restrictions on biotechnologies would undermine the new personal liberties or rights that they make possible. For example, one could argue that PGS gives one the right to choose the sex or other genetic aspects of one’s children. As long as one’s own personal use of PGS or other biotechnologies does not harm others, the argument goes, then it should not be restricted. Intellectual property and the patenting of biotechnol­ ogies is a central issue for both liberty and justice. Patents encourage and reward inventiveness by giving an inven­ tor the exclusive rights to an invention’s use and sale. They are morally justifiable, proponents claim, because they are fair. In the absence of patents, a competitor can quickly and cheaply reverse engineer the inventor’s pro­ duct and sell it at a low cost. This competition would make it impossible for inventors to recoup costs and be compensated for their original work. Furthermore, with­ out patents, the argument runs, innovation would dry up because there would be no incentives and protections for innovators. Critics may grant this argument in the abstract, but they argue that in reality biotech corporations utilize intellectual property as a mechanism for domination. Some argue that patents reduce supplies, increase prices, and limit choices for small farmers. Others claim that patents on living creatures (altered or not) found in the developing world constitute ‘biocolonialism’ or ‘biopi­ racy,’ the pilfering of genetic resources and traditional knowledge. This undermines a people’s right to selfdetermination or their rights to profit from their own resources. Supporters of the commercialization of tradi­ tional medicines use the term ‘bioprospecting,’ noting that intellectual piracy only refers to acts where the knowl­ edge in question was already protected by domestic patent law, which is not the case in most developing countries. Bioprospecting can also refer to the search for previously unknown compounds not used in traditional medicines.

Ethical Issues: Successes The fourth critical position maintains that the very suc­ cesses of biotechnology are often cause for concern. That is, a given biotechnology could be implemented in a way that is safe, freely chosen, and fairly distributed but none­ theless remain morally objectionable. Thus, this position seeks to identify and defend a wider set of ethical con­ cerns with regard to biotechnology beyond the typical

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focus on risks, liberties (understood as absence of coer­ cion), and justice. This often involves appeals to concepts such as nature, human nature, wisdom, dignity, and play­ ing God. Those who oppose this critical position do so in two ways. First, they can marshal such concepts in support of further biotechnological success. For example, in reply to claims that biotechnology is ‘unnatural,’ they can argue that because intelligence is humanity’s replacement for instinct, engineering is a natural, even a biological, phe­ nomenon. In reply to claims that biotechnology is dehumanizing, they can argue that it is ushering in a superior post-human era. Second, opponents can argue that such concepts are meaningless or too vague to guide moral decision making. For example, they can note that appeals to ‘playing God’ can be used to justify both limit­ ing and expanding biotechnology. Also, they can argue that ‘human dignity’ is too vexed and murky to serve as a guide to biotechnology policies. The locus classicus for the critique of biotechnological successes is the 1932 dystopian novel Brave New World by Aldous Huxley. From this perspective, what is troubling about the world depicted by Huxley is not its social stratification. After all, members of every caste are equally content with their lots. Everyone has their needs met and desires fulfilled. Rather, the problem is that these needs and desires are flattened. Humans have only shallow attachments and stunted aspirations. This suggests that the goals noted previously are not exhaustive. People can have ample freedom, health, food, high-tech materials, and security but nonetheless lead debased lives. Four cases will serve as useful illustrations of concerns about success. First, in the case of human cloning for reproduction, concerns about failure focus on the riski­ ness of the procedure or the possibility that it may be employed coercively or distributed inequitably. A con­ cern about the success of cloning is that it blurs the line between procreation and manufacture, or begetting and making. It fundamentally alters the nature of reproduc­ tion from the erotic coupling of two to the controlled copying of one. The relationship between generations may be debased or corrupted when a child is regarded no longer as a mysterious gift but as a product of parental will, to be perfected by designs in accord with the desires of the present generation. Second, concerns about allowing commerce in organ transplantation typically focus on the implications for freedoms (e.g., to sell one’s kidney) and justice (e.g., financial incentives may lead to exploitation of the poor). Yet a wider concern is about the implications of regarding the human body as a commodity and as alien­ able property and what this means for concepts of identity and personhood. This concern also applies to the

commodification of embryos, or their conceptualization as resources to be mined. Such practices may coarsen the sensibilities of a society that adopts them as natural and unproblematic. Third, in the case of performance enhancers such as steroids, concerns usually focus on health risks and unfair advantages. However, wider concerns pertain to the separation of doer and deed as performance becomes alienated from the effort and experience of training. Steroids call into question the nature of human identity and agency because the athlete performs better by being less responsible for the action and thus less fully himself or herself. He or she is performing in the sense of acting, separating who one is from what one does. Fourth, concerns about the environment typically focus on the risks posed by pollution and resource deple­ tion or the unjust distribution of such risks. Yet a wider concern is that biotechnology will, even through pro­ cesses that are safe and fair, replace the natural environment with one that is wholly an artificial con­ struction. Future generations will adopt an image of nature not as something into which they are born but, rather, as something that they program. This may even increase the diversity of the living world. However, the concern is that this image of nature is impoverished, and that without some enduring otherness, humans are deprived of meaning, orientation, or awe. These examples suggest that from this perspective, biotechnologies are not simply means to the goals identi­ fied previously. Rather, they shape how those goals are understood and pursued. As the saying goes, to one armed with a hammer everything looks like nails. To a society armed with biotechnology, everything begins to look like problems caused by a lack of control over living nature. With children, what were mysterious gifts become raw material for improved designs. With organs, what were once inalienable parts of the human whole become sources of revenue. With performance, what were once limits against which to test one’s mettle become tasks for the engineer. With nature, what was once the given and other becomes a system to be managed. With sadness, discontent, or aggression, what were once expressions of the human psyche become pathologies to be pharmaco­ logically managed. The question is whether these new ways of under­ standing the human self and the natural world are appropriate or better ways. For many critics of biotech­ nological success, the technological way of understanding nature is worse because it is grounded in scientific objec­ tivity, which abstracts from life as concretely lived and experienced from within. Thus, the successful attainment of this vision drains life of what makes it meaningful simply because such aspects are not visible from the

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objective standpoint. All such critics argue that the ques­ tion of how to properly conceive of and relate to living nature should be openly addressed rather than assuming that new ways are automatically better ways or that safety, liberty, and justice are the only goods at stake.

Governing Biotechnology Overarching all of these ethical critiques is the central question of governance of science and technology: Who should have the authority to make which decisions? In contemporary biotechnology, this question quickly rose to the forefront with the 1975 Asilomar Conference. Scientists working with rDNA became concerned that their new powers may inadvertently lead to the creation of biological weapons or genetically engineered organ­ isms that escape control or develop antibiotic resistance. In an unprecedented call for self-restraint, leading scien­ tists called for a temporary moratorium on rDNA research and a conference to discuss the issue of risk. The formal task of the Asilomar Conference was to iden­ tify hazards and ways to minimize them. However, the informal task was to regulate rDNA technology in such a way that satisfied the public and, most important, allowed the science to be self-governing. The legacy of Asilomar is controversial. Some claim that it represents an elitist process in which scientists marginalized social and ethical concerns in order to legit­ imize rDNA technology and justify self-governance. Others claim that the whole process was too alarmist. It went against growing scientific consensus about the safety of rDNA and raised public suspicion that threatened beneficial uses of the technology. Yet others claim that the process was a commendable blend of scientific selfinterest and self-restraint, and that the resulting guide­ lines have evolved to strike a proper balance between scientific freedom and public involvement. Asilomar was an important step in the explicit integra­ tion of biotechnology with its social and ethical contexts. Such integration can occur upstream through funding decisions and the formulation of guidelines prior to the conduct of research. It can also occur downstream through regulation and technology transfer policies. The problem with upstream governance is that the potential costs and benefits of a particular biotechnology are often uncertain. It can be unclear which lines to follow and with what level of precaution. The problem with downstream governance is that once a technology is already devel­ oped, it may be too late to effectively modulate its trajectory to better align with social values. The midstream governance of biotechnology may avoid both of these problems. The most important

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example of this is the Ethical, Legal, and Social Issues (ELSI) initiative that was part of the Human Genome Project. Between 3 and 5% of the annual budget for this project was devoted to research on the ethical, legal, and social implications of the mapping of the human genome. Ideally, such midstream research could identify potential ethical problems and effectively intervene to modulate its trajectory. The ELSI initiative, however, was criticized for being disconnected from the scientific and engineer­ ing research. It may have served less to criticize and alter the project than to provide a legitimizing patina of pseudo-scrutiny designed to give the illusion of criticism without actually impacting the science or technology. Effective governance, then, will need to integrate ethics and biotechnology rather than set them along parallel tracks that do not converge. See also: Agricultural Ethics; Biobanks; Biometric Technologies, Ethical Implications; Biopower (Foucault); Bioterrorism; Cloning; Cyborgs; Development Ethics; Eugenics; Functional Food and Personalized Nutrition; Gene Therapy; Genetic Counseling; Genetic Engineering of Human Beings; Genetic Screening; Genomic Databases, Ethical Issues in; Human Enhancement; Human Genome Project; Intellectual Property Rights; Life, Concept of; Playing God; Preimplantation Genetic Diagnosis; Reproductive Technologies, Overview; Sex Selection; Transhumanism; Xenotransplantation.

Further Reading Bud R (1993) The Uses of Life: A History of Biotechnology. Cambridge, UK: Cambridge University Press. Diamond J (1997) Guns, Germs, and Steel: The Fates of Human Societies. New York: Norton. Fukuyama F (2002) Our Posthuman Future: Consequences of the Biotechnology Revolution. New York: Farrar, Straus, & Giroux. Fumento M (2003) Bioevolution: How Biotechnology Is Changing Our World. San Francisco: Encounter. Grace E (2006) Biotechnology Unzipped: Promises and Realities, 2nd edn. Washington, DC: Joseph Henry. Kass L (1985) Toward a More Natural Science. New York: Free Press. Kass L (2002) Life, Liberty, and the Defense of Dignity. San Francisco: Encounter. McKibben B (2003) Enough: Staying Human in an Engineered Age. New York: Times Books. President’s Council on Bioethics (2003) Beyond Therapy: Biotechnology and the Pursuit of Happiness. New York: HarperCollins. Rifkin J (1983) Algeny. New York: Viking. Rifkin J (1998) The Biotech Century: Harnessing the Gene and Remaking the World. New York: Penguin Putnam. Ruse M and Castle D (eds.) (2002) Genetically Modified Foods: Debating Biotechnology. Amherst, NY: Prometheus. Sherlock R and Morrey JD (eds.) (2002) Ethical Issues in Biotechnology. Lanham, MD: Rowman & Littlefield. Silver L (1997) Remaking Eden: Cloning and beyond in a Brave New World. New York: Avon. Yount L (2004) Biotechnology and Genetic Engineering. New York: Facts on File.

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Biographical Sketch Adam Briggle is Assistant Professor in the Department of Philosophy and Religion Studies at the University of North Texas (UNT). He teaches and researches at the interdisciplin­ ary confluence of science, technology, ethics, and politics. He is author of A Rich Bioethics: Public Policy, Biotechnology, and the Kass Council (University of Notre Dame Press, 2010) and co-author

with Carl Mitcham of Ethics and Science: An Introduction (Cambridge University Press, 2011). He has a Ph.D. in Environmental Studies from the University of Colorado, Boulder, and he served for 3 years as a post-doc in the Philosophy Department at the University of Twente, The Netherlands. He is also a fellow at the UNT Center for the Study of Interdisciplinarity and member of the executive edi­ torial board for the Springer journal Philosophy & Technology.

Bioterrorism M J Selgelid, The Australian National University, Canberra, ACT, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Anthrax A noncontagious bacterial infectious disease caused by Bacillus anthracis. Anthrax has advantageous properties for biological weapons because it forms hardy spores that survive adverse environmental conditions that would usually kill bacteria. Dual-use research Research that has legitimate/ beneficial applications but that may also be used for harmful purposes by malevolent actors. Of particular concern is biotechnology research with implications for biological weapons development. Infectious disease Disease caused by pathogenic microorganisms, such as viruses or bacteria. Infectious diseases are often, but not always, contagious (i.e.,

Introduction Bioterrorism involves the politically motivated use of bio­ logical weapons to cause fear, panic, and/or social disruption. Biological weapons generally involve infectious diseases and/or toxins produced by infectious diseases. Infectious diseases are caused by pathogenic microorgan­ isms (e.g., bacteria and viruses). Many, but not all, infectious diseases are contagious. Smallpox, anthrax, and plague are usually considered to be the three most feared biological weapons agents. However, there is a long list of biological weapons agents, including staphylococcal enterotoxin B, tularemia, Q fever, Venezuelan equine encephalitis virus, botulinum toxin, glanders, Marburg virus, and brucellosis. Many of these are deadly, but some (e.g., brucellosis and Q fever) are incapacitating – that is, ‘nonlethal.’ Some writers emphasize the importance of distin­ guishing biological weapons agents from the weapons or weapons systems of which they form a part. In many cases, weaponization requires dispersing biological agents via bombs, bomblets, and/or aerosolization sys­ tems, and much biological weapons research has focused on dispersal mechanisms in particular. (One challenge for biological weapons makers is to develop dispersal systems that do not kill or deactivate biological weapons agents, which can be highly sensitive to things such as heat and light.) In the case of highly contagious infec­ tious diseases, however, no weapon system is necessarily required to cause a major disease outbreak: A suicide

transmissible between members of the same and/or different species). Pathogen A disease-causing agent. Plague A deadly contagious infectious disease caused by Yersinia pestis bacteria. The plague was responsible for numerous catastrophic epidemics in previous centuries, including the Black Death, which eliminated one-third of the European population during the course of 4 years in the mid-fourteenth century. Smallpox An infectious disease caused by the variola virus. Smallpox is highly contagious and kills one-third of its victims. Although smallpox is believed to have killed more people than any other infectious disease in history, it was declared eradicated in 1980 following a massive worldwide vaccination campaign.

terrorist could spark an epidemic by infecting himself with the disease and then coughing on others at airports and so on. In such cases and in others in which no sophisticated dispersal mechanism is required – for example, some toxins or microorganisms may simply be poured into a food or water supply – the biological agent can itself be considered a weapon (when released with hostile intention). Fears of bioterrorism are partly associated with the fact that some biological weapons agents, such as smallpox and anthrax, could cause the devastation expected to result from nuclear weapons. In comparison with nuclear weapons, however, biological weapons are usually consid­ ered to be much easier and less expensive to produce. Because they involve tiny/microscopic agents, and because they are not radioactive, they are also much easier to transport undetected. This exacerbates dangers of prolif­ eration of biological weapons agents (e.g., from statesponsored biological weapons programs). Bioterrorists may thus have better access to biological weapons than other weapons of mass destruction. Furthermore, develop­ ments in the life sciences (e.g., genetic engineering, synthetic genomics, and synthetic biology) can be expected to facilitate the development of more dangerous biological weapons than previously would have been possible. Biological weapons may be attractive to terrorists because they are especially likely to promote fear, panic, and social disruption. Contagious diseases can lead to wide­ spread epidemics; and some noncontagious biological

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weapons agents (e.g., anthrax and botulinum toxin) could likewise have catastrophic consequences in terms of mor­ bidity and mortality. The fact that biological weapons involve invisible/microscopic agents, which may be surrep­ titiously deployed, also leads to fear of the unknown. Finally, because there can often be a substantial time lag between the deployment of biological weapons and their consequences (i.e., in the case of infectious diseases with long incubation periods, where the onset of symptoms may not take place until days or weeks after exposure/infection), the recognition of a biological attack may not be possible until long after the attack has taken place, thus making it easier for perpetrators to escape detection and/or apprehension.

Biological Weapons History Although concerns about biological weapons and bioter­ rorism have increased dramatically since the terrorist attacks of September 11, 2001, and the subsequent anthrax attacks in the United States, the use of biological weapons is not a new phenomenon. The earliest examples of bio­ logical weapons’ use date back to ancient times. Ancient Greeks and Romans, for example, poisoned the wells of enemies with carrion, and it is believed that Alexander the Great catapulted dead bodies over walls of attacked cities in order to spread disease and cause terror. On the Crimean Peninsula in the mid-fourteenth cen­ tury, the Tartars catapulted dead bodies of plague victims over the walls of Caffa to Genoese adversaries. The latter’s subsequent return home on plague-infested ships is the standard explanation of how the Black Death reached Europe in 1346, sparking an epidemic that killed one-third of the European population during the course of 4 years. Other salient historical episodes involve the use of smallpox as a weapon in the New World. During the French and Indian Wars, for example, Sir Jeffrey Amherst famously made the request, ‘‘Could it not be contrived to Send the Small Pox among those Disaffected Tribes of Indians? We must, on this occasion, Use Every Stratagem in our powers to Reduce them.’’ Colonel Bouquet replied that he would ‘‘try to inoculate . . . by means of some blankets that may fall in their Hands.’’ The British Army was also accused of using smallpox against the colonial army during the Revolutionary War, and U.S. government agents were accused of giving smallpoxinfected blankets to Plains Indians during the 1800s. Early twentieth-century examples include Germany’s use of anthrax and glanders against enemy livestock dur­ ing World War I. In 1925, the use of biological weapons was banned by the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bateriological Methods of Warfare, which

was signed by 29 nations. The idea that such a ban would not have been established unless biological weapons indeed had substantial military potential was part of the motivation behind Japan’s subsequent development of a major biological weapons program that involved horrific research with hundreds of human subjects (who were forcefully infected and/or killed by numerous biological weapons agents, including plague, anthrax, typhus, small­ pox, tuberculosis, and cholera), the contamination of more than 1000 wells in Chinese villages with typhus and cholera, and the aerial bombing of China with pla­ gue-infested fleas during World War II. U.S. Biological Weapons Program The United States signed but never ratified the Geneva Protocol, which ruled out the use, but not research and development, of biological weapons. The United States was secretly engaged in offensive biological weapons research, development, and production (often in colla­ boration with the United Kingdom and Canada) from 1942 from 1969, when President Nixon called for a ban on offensive biological weapons research. Among others, the U.S. program developed and/or mass produced bio­ logical weapons involving anthrax, tularemia, brucellosis, Q fever, Venezuelan equine encephalitis, botulinum toxin, and staphylococcal enterotoxin B. Dispersal mechanisms were tested numerous times via covert release of (supposedly) harmless biological agents in American cities, and Seventh Day Adventist human-sub­ ject volunteers were intentionally exposed/infected with Q fever (which is not usually lethal) in an experiment called ‘Operation Whitecoat.’ Much like the initial drive to develop atomic weap­ ons, the U.S. biological weapons program was initially largely motivated by the belief that Nazis were devel­ oping such weapons during World War II. (As with atomic weapons, it was later determined that the Nazis did not make much progress with biological weapons.) During much of the history of its biological weapons program, the United States never planned to use such weapons preemptively. A motivation behind the pro­ gram was the thought that it would be necessary to respond in-kind if the United States was itself subjected to biological attack. However, National Security Council regulation NSC 5062/1, adopted in 1956, chan­ ged U.S. policy to allow for the possibility of a first strike with biological weapons. According to this directive, ‘‘To the extent that the military effectiveness of the armed forces will be enhanced by their use, the United States will be prepared to use chemical and bacteriolo­ gical weapons in general war. The decision as to their use will be made by the President.’’ The proffered reasons behind President Nixon’s 1969 ban on biological weapons included the fact that

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biological weapons are very unpredictable and difficult to control. When released in the air, for example, their dispersal is subject to wind and other weather conditions. In this and the case of contagious diseases, the worry is that they may end up infecting a country’s own troops and/or citizens as well as (or perhaps rather than) those of the enemy. An additional rationale relates to the fact that biological weapons are so much easier to produce than other weapons of mass destruction – the idea being that this was not a good area in which to spark an arms race because biological weapons have the potential to serve as poor countries’ weapons of mass destruction (whereas nuclear weapons were only available to rich/powerful nations).

Biological Weapons Convention Such thinking soon led to the Convention on the Prevention of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, which was signed in 1972 and came into effect in 1975. Commonly known as the BTWC, this treaty requires in Article I that Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile, or otherwise acquire or retain: 1. Microbial or other biological agents, or toxins what­ ever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes; 2. Weapons, equipment, or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Although the BTWC also requires that any already exist­ ing biological weapons be destroyed or diverted to peaceful purposes, it allows for possession of and research on biological agents for defensive purposes. A widely acknowledged weakness of the BTWC is that its prohibi­ tions ultimately turn on the intentions of researchers. Although defensively motivated research is permitted, the pathogen research that might (arguably) be important for defense is often indistinguishable from that which would be used for offensive purposes. The worry is that the treaty is unenforceable to the extent that intentions are extremely difficult, if not impossible, to verify. An additional critique regarding enforceability holds that the BTWC lacks teeth because it fails to call for verification measures to begin with. Attempts to strengthen the BTWC via addition of verification/inspection measures (similar to those required by the Chemical Weapons Convention) have been blocked by the United States on the grounds that such measures would be infeasible and/ or unduly intrude upon trade secrets of pharmaceutical

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and/or other biotechnology companies involved in legit­ imate research. Soviet Biological Weapons Program Perhaps (partly) as a result of this weakness, the BTWC failed to bring an end to biological weapons development. Although signatory to the BTWC, the former Soviet Union secretly ran an enormous biological weapons pro­ gram called ‘Biopreparat’ until its fall in the early 1990s. Developing and producing a large number of biological weapons agents, at peak the Soviet Union had the capa­ city to produce 1500 metric tons of tularemia, 4500 metric tons of anthrax, 150 metric tons of Venezuelan equine encephalitis, 1500 metric tons of plague, 100 tons of smallpox, 2000 tons of glanders, and 250 metric tons of Marburg virus (which causes hemorrhagic fever similar to Ebola) yearly. Soviet research and development efforts supposedly included a project aimed at engineering a hybrid combination of smallpox and Ebola, with the goal of producing a virus as contagious as the former and as deadly as the latter. The sinister nature of the Soviet biological weapons program is partly revealed by the suggestion that smallpox was considered to be a ‘strategic weapon’ with a specific purpose within its weap­ ons arsenal – that is, to mop up survivors (of enemy nations) remaining after nuclear holocaust. The Soviets reportedly succeeded in engineering a vaccine-resistant strain of anthrax and multi-drug-resistant strains of anthrax, glanders, and plague. These and other details were revealed by former Deputy Director of Biopreparat Ken Alibek, who defected to the United States and reported such activities to the Central Intelligence Agency and then to the public in a book titled Biohazard: The Chilling True Story of the Largest Covert Weapons Program in the World – Told from the Inside by the Man Who Ran It. Although some doubt the truth of Alibek’s testimony, many of his claims have been corro­ borated by circumstantial evidence and/or revelations of other defectors. Destruction of many Soviet biological weapons, including intercontinental missiles loaded with smallpox, has never been verified. The whereabouts of most of the 60 000 Biopreparat scientists and technicians – who would make attractive recruits for, or potential suppliers of, ‘rogue nations’ or terrorist organizations interested in biological weapons – are currently unknown. Smallpox The possibility of smallpox proliferation is especially troubling. This disease, for which there is no known treatment, is highly contagious and kills one-third of its victims. Smallpox is believed to have killed more people than any other infectious disease in history and 300–500

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million people during the twentieth century alone – that is, three times more people than were killed in all the wars of that period. Because routine smallpox vaccination ended worldwide when eradication was declared in 1980, and earlier in many industrialized nations, the world population now lacks smallpox immunity. Most people have never been vaccinated against smallpox, and the immunity of those who have been vaccinated has likely worn off with time. Experts believe that if smallpox is used as a weapon, this could spark a global epidemic causing the devastation expected from (perhaps a series of) nuclear attack(s). That the United States takes such threats seriously is revealed by its post September 11, 2001, stockpiling of smallpox vaccine, its mandatory vaccination of hundreds of thousands of military personnel against smallpox, and its failed attempt (starting in 2003) to have 10 million first responders (i.e., health and emergency workers) vacci­ nated on a voluntary basis. The latter program failed because so few health and emergency workers volun­ teered to be vaccinated due to fears about vaccine side effects, uncertainty about the extent to which compensa­ tion would be provided if such complications were suffered, and because specific details regarding smallpox proliferation – and thus the likelihood of a smallpox attack – remained largely unknown. Recent Incidents Current concern about bioterrorism can also be partly explained by a number of more recent incidents involving biological weapons use. In 1984, for example, the Rajneeshee cult poisoned salad bars with Salmonella in The Dalles, Oregon. Their aim was to test the idea that they might thus win an election by sickening those who would vote for political opponents. Another cult organi­ zation called Aum Shinrikyo – perhaps most famous for the sarin gas attack of the Tokyo subway in 1995, killing 13 people and injuring 5000 – attempted numerous unsuccessful attacks in Japan with anthrax and botulinum toxin (and perhaps other agents including Q fever) from 1990 to 1995. The most recent high-profile incident involved the anthrax attacks in the United States soon after September 11, 2001. In this case, anthrax powder sent through the mail to government and media offices led to 22 infections, 5 deaths, and significant social dis­ ruption. The FBI’s prime suspect in this case was Bruce Ivins, a U.S. Army scientist who was involved in anthrax vaccine research. Ivins committed suicide in 2008 soon after learning that he would be indicted on charges of murder. Although none of these incidents caused large-scale casualties, they reveal terrorists’ willingness to use biolo­ gical weapons to cause death and disorder. The fact that there have been no enormously devastating bioterrorism

events to date does not imply that such an event never will or could occur. Most experts agree that it is a ques­ tion of where and when, not if, a major bioterrorist attack will take place.

Dual-Use Research One cause of heightened concern regarding bioterrorism is the recognition that rapid advancements in the life sciences may facilitate development of a new generation of biological weapons. During the twenty-first century, one of the most controversial ethical and policy issues regarding biological weapons and/or bioterrorism has been the dual-use phenomenon, whereby the very same scientific research that has beneficial applications (e.g., in medicine) may often also be used by malevolent actors for nefarious purposes (e.g., in bioterrorism). Much of this debate has focused on three especially controversial experiments. First, Australian scientists employed routine genetic engineering techniques to insert the interleukin-4 gene into the mousepox virus. Their aim was to thereby develop an infectious contra­ ceptive that would serve as a means of pest control. To their surprise, they discovered that they had accidentally produced a superstrain of mousepox in the process. The altered virus killed mice that were naturally resistant to and also mice that had been vaccinated against ordinary mousepox. They published their findings, along with a description of materials and methods, in 2001. In a second study, American researchers artificially synthesized a poliovirus from scratch. Following the map of the RNA poliovirus genome, which is published on the Internet, they bought (via mail order) and stitched together corresponding DNA sequences. The addition of the synthesized genome to solution containing key pro­ teins led to the production of a live poliovirus that paralyzed and killed mice. In a third study, American scientists used similar techniques to reconstruct the 1918 flu virus, which killed 20–100 million people in one of the worst epidemics in human history. The polio study was published in 2002, and the flu study was published in 2005. Both articles included a description of materials and methods. In each of these cases, the publications led to public outcry. Critics complained that publication of these arti­ cles alerted bioterrorists to new ways of making biological weapons and provided them with explicit instructions about how to do so. It was argued that such studies should not have been published or, at least, that the description of materials and methods should have been omitted from the published articles. The first two studies have implications for smallpox in particular. The concern about the mou­ sepox study is that the very same genetic engineering technique may enable production of vaccine-resistant

Bioterrorism

smallpox or more virulent forms of other pox viruses that affect humans. The concern about the polio study is that similar techniques could be used to artificially synthesize smallpox (the genome of which is also published on the Internet) or other potential biological weapons agents (e.g., Ebola) that terrorists might not otherwise be able to access easily. The scientists and journal editors involved, however, defended their actions. In the case of the first two studies, they argued that publication was necessary to inform the scientific community about new dangers revealed so that new protections can be developed. In the case of the flu study, it was argued that the potential medical benefits of research with the reconstructed virus (e.g., aimed at developing new vaccines and treatments) outweighed risks of bioterrorism, especially given current concerns about pandemic influenza. In all three cases, it was argued that it is necessary to include a description of materials and methods in scientific publications because this is crucial to scientific methodology regarding verification and replication. In response to such controversy, a number of impor­ tant science journals stated that they would start screening submitted papers for dual-use dangers prior to publication. Other developments have included the 2004 establishment of the U.S. National Science Advisory Board for Biosecurity to advise the government about matters pertaining to dual-use research. Critics com­ plained Much attention has focused on the need to increase education of scientists about the dual-use poten­ tial of their research, the need for new science codes of conduct that include reference to the social responsibility of scientists in the context of dual-use research, and the need to strengthen institutional research oversight pro­ cesses by including systematic monitoring of dual-use dangers of research in addition to human (and animal) subject protection and biosafety. One of the most controversial issues is the question of who should have ultimate authority to decide whether or not any given experiment with dual-use potential should take place and/or be published. With regard to publica­ tion, the scientific community is strongly opposed to the possibility of governmental censorship of research find­ ings (at least in the case of research that is not classified or funded by government) with dual-use potential. It is questionable, however, whether scientists themselves have adequate security expertise for assessing the risks of publication in difficult cases. Most scientists have never received formal training in security studies. Furthermore, in the case of the mousepox study the risk of publication was partly related to the likelihood of smallpox prolifera­ tion, because bioterrorists would need access to the smallpox virus in order to apply the relevant genetic engineering technique to it. All of the world’s remaining samples of smallpox are officially supposed to be held

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under tight security at only two facilities worldwide – the Centers for Disease Control and Prevention in the United States and a similar facility in Russia. As indicated previously, however, the Soviets produced tons of small­ pox for weapons purposes, and proliferation is a dangerous possibility. Specific details about (the likeli­ hood of) smallpox proliferation, meanwhile, involve classified information that is not available to ordinary scientists. An additional reason for questioning whether scientists should be free to make their own decisions about whether or not to publish potentially dangerous discoveries is that conflicts of interest may arise insofar as career advancement in science is largely determined by publication record. Biodefense Research It is widely acknowledged that one of the best protections against bioterrorism is a strong public health system. In the aftermath of September 11, 2001, and the subsequent anthrax attacks in the United States, the U.S. government allocated billions of dollars to biodefense spending. Although many hoped that such funds would be used to strengthen public health systems in general – thus provid­ ing protection against natural outbreaks of infectious diseases as well as those that might result from bioterror­ ism – a large proportion of this funding has been devoted to classified research that may arouse suspicion (in other countries) that the United States is itself involved in biological weapons research. As noted previously, it is often the case that the research required for biodefense is indistinguishable from research that would be con­ ducted by those with offensive intentions. Biodefense research provides some of the clearest examples of dualuse research. Critics argue that, in addition to failing to use more biodefense funding to strengthen the public health system in general, this major U.S. biodefense research initiative may drive a new biological arms race. History is full of examples in which the motivation behind one country’s biological weapons program involved suspicion that other countries were involved in similar efforts.

Public Health Response In the event of a bioterrorist attack involving a contagious infectious disease, coercive public health measures may be called for in order to prevent the spread of infection. Such measures could include surveillance, mandatory clinical examination, reporting cases of infection to authorities, notification of third parties, mandatory treat­ ment and/or vaccination, isolation, and/or quarantine. Although such measures may (depending on the disease) be effective in preventing the spread of infection, they

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each involve infringement with widely acknowledged basic human rights and liberties. Surveillance, mandatory examination, reporting, and third-party notification infringe on the right to privacy; mandatory clinical exam­ ination and mandatory treatment and/or vaccination conflict with the right to informed consent to medical intervention; and isolation and quarantine conflict with the right to freedom of movement. Although such rights are important, they are not usually considered to be absolute. When the threat to society is sufficiently great, it is commonly thought that individual rights must be compromised in the name of the greater good. A difficult ethical question is thus how to strike a balance between the goal to protect the good of society and the goal to protect individual rights and liberties. This kind of ques­ tion arises in the context of infectious disease control in general, whether or not bioterrorism is involved. Numerous authors have proposed frameworks for establishing the ethical permissibility of coercive public health measures such as isolation and quarantine. Among other things, it has been argued that: 1. liberty restriction in the name of public health pro­ tection should be based on evidence that the intervention in question would in fact provide an effective means of public health protection; 2. the least restrictive (i.e., least liberty-infringing) alternative should be employed to achieve the public health goal in question; 3. extreme liberty-infringing methods such as isolation and quarantine should not be employed unless the public health consequences would otherwise be severe; 4. liberty-infringing interventions should be used in an equitable (i.e., nondiscriminatory) manner and/or the bar for imposing such measures should be highest (with regard to the evidence required or the utility threatened) when those being considered for confinement are mem­ bers of the worst-off groups of society; 5. liberty infringement should be minimally burden­ some (e.g., so that those confined receive basic necessities and are made as comfortable as possible); 6. those whose liberty is violated should be compen­ sated in return; 7. implementation of liberty restrictions should involve due (legal) process, and those confined should have a right to appeal; and 8. relevant policy making should (insofar as possible) be democratic and transparent. Similar principles may also apply to the other public health measures discussed previously. Although these may be plausible principles, unan­ swered questions remain. If the use of coercive measures requires evidence of their effectiveness, for example, then how strong must the evidence be – and what should be done in the case of novel or unknown

pathogens (when little or no evidence is yet available)? The third principle holds that such measures are only called for if the public health consequences would otherwise be severe. However, how great must the public health threat be – for example, in terms of poten­ tial disease burden – for a given amount of liberty infringement to be justified? In the context of bioterrorism in particular, an addi­ tional question is whether or not the bar for employing such measures should be lower (e.g., with regard to the evidence required and/or the public health consequences at stake) for the employment of such measures to be justified. One might argue that because a public health response to a bioterrorist event involves a fight against crime and/or evil as well as a fight against disease – and the protection of security as well as health – the condi­ tions under which such measures may be employed need not be so stringent when responding to a bioterrorist event as opposed to a naturally occurring infectious dis­ ease outbreak.

Ethical Issues Facing Health Care Workers Education The increased threat of bioterrorism poses significant ethical challenges and duties for health care workers. Physicians should be on the alert for unusual symptoms in patients and report suspect cases to authorities (in accordance with local guidelines), for example, because reduction of impact in the event of a biological attack will depend on early recognition of disease outbreak. In order to recognize diseases most likely to result from biological attack, those working in health care would need to famil­ iarize themselves with the nature and symptoms of (perhaps rare or exotic) diseases with which they would otherwise not likely have experience. The first duty of health workers related to the bioterrorist threat is thus educational. Primary care physicians must increase their own awareness of the bioterrorist threat, the kinds of diseases likely to be used in (or as) biological weapons, and the ways in which such diseases would likely present in clinical cases. Triage In the event of a massive disease outbreak that could potentially result from a successful biological attack, it is possible that hospitals and the health care system will lack capacity to provide care for everyone who needs it. If there are not enough medical personnel, drugs, or other resources such as beds to provide for everyone in need, then a different – and more severe – kind of triage than

Bioterrorism

that usually employed in hospital emergency rooms will be required. Whereas standard emergency room triage involves making decisions about the order in which patients will be treated based on the urgency of patients’ needs, in a catastrophic situation that could result from a bioterrorist attack, triage may require decisions that some patients will not receive treatment at all. If there are not enough resources for everyone, then some must unfortu­ nately be turned away and/or left to die. Although familiar to military medical personnel on battlefields, ordinary domestic health workers will not have faced this kind of situation on such a scale before. In contrast to the ethical basis of other aspects of health care – where there is an emphasis on things such as the primacy of each patient and patient autonomy – the ethics of triage is commonly considered to be inherently utilitarian. If this is correct, then triage decisions should aim to achieve the maximum (health) benefits with the limited resources available. Insofar as the importance of each person’s health is given equal weight in utilitarian triage calculus, an egalitarian element is central to the ethics of triage. A difficult question, however, is the extent to which social utility should be taken into account when making deci­ sions about who will receive limited medical resources. Should special priority be given to health care workers themselves, for example, when allocating limited drug and/or vaccine supplies? Because the health of such personnel is a precondition of others receiving treat­ ment, this kind of priority would often be called for. Insofar as possible, however, relevant policy should be debated and formulated ahead of time via public, trans­ parent processes in order to increase public trust in both the capacity and the fairness of the health care system. Duty to Treat Because bioterrorism may involve the release of conta­ gious diseases, provision of care to infected patients may pose risks (of infection) to health care workers. Numerous professional codes of conduct state that health workers should care for patients even when such risks arise. Analogous to firefighting, health care provision is an inherently dangerous business – and one arguably con­ sents to face such dangers when taking on this kind of employment. Some argue that a health care worker’s duty to care for patients in such circumstances is based on a social contract. Health care workers receive exclusive training and other special privileges from society; but society expects them to provide health care, when neces­ sary, in return. Even if there is such a duty, however, it presumably has limits. One should not expect a health care worker to provide treatment to a patient even in circumstances

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in which this would almost certainly be a death sen­ tence for the health care worker. An important ethical question that asks, What are the limits to the duty in question – how much danger should a health care worker be willing to face? Should health care workers be willing to face greater dangers in the context of bioterrorism than in the context of naturally occurring infectious diseases?

See also: Bioethics, Overview; Biotechnology; Censorship; Infectious Diseases; Military Ethics; Nuclear Warfare; Public Health Ethics; Scientific Publishing; Terrorism; Warfare, Codes of.

Further Reading Alibek K and Handelman S (1999) Biohazard. New York: Random House. Drexler M (2003) Secret Agents: The Menace of Emerging Infections. New York: Penguin. Gross ML (2006) Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War. Cambridge, MA: MIT Press. Henderson DA, Inglesby TV, and O’Toole T (eds.) (2002) Bioterrorism: Guidelines for Medical and Public Health Management. Chicago: AMA Press. Kellman B (2007) Bioviolence: Preventing Biological Terror and Crime. New York: Cambridge University Press. Miller J, Engelberg S, and Broad W (2001) Germs: The Ultimate Weapon. London: Simon & Schuster. Miller S and Selgelid MJ (2008) Ethical and Philosophical Consideration of the Dual-Use Dilemma in the Biological Sciences. Dordrecht, The Netherlands: Springer. Moreno JD (ed.) (2003) In the Wake of Terror: Medicine and Morality in a Time of Crisis. Cambridge, MA: MIT Press. Regis E (1999) The Biology of Doom: The History of America’s Secret Germ Warfare Project. New York: Holt. Selgelid MJ (2003) Smallpox revisited? American Journal of Bioethics 3(1): W5–W11. Selgelid MJ (2007a) A tale of two studies: Ethics, bioterrorism, and the censorship of science. Hastings Center Report 37(3): 35–43. Selgelid MJ (2007b) Bioterrorism, society and health care ethics. In: Ashcroft RA, Dawson A, Draper H, and McMillan JR (eds.) Principles of Health Care Ethics, 2nd edn., pp. 631–637. Chichester, UK: Wiley. Selgelid MJ, Battin MP, and Smith C (eds.) (2006) Ethics and Infectious Disease. Oxford: Blackwell. Tucker JB (2001) Scourge: The Once and Future Threat of Smallpox. New York: Grove Press. U.S. National Research Council (2004) Biotechnology Research in an Age of Terrorism. Washington, DC: National Academies Press.

Relevant Websites http://www.opbw.org – The Biological and Toxin Weapons Convention Website. http://www.bwpp.org – BioWeapons Prevention Project. http://www.brad.ac.uk/acad/bdrc – Bradford Disarmament Research Centre. http://www.cdc.gov – Centers for Disease Control and Prevention. http://www.cidrap.umn.edu – Center for Infectious Disease Research and Policy, University of Minnesota.

316 Bioterrorism http://www.publichealthlaw.net – The Centers for Law & the Public’s Health. http://ecdc.europa.eu/en/Pages/home.aspx – European Centre for Disease Prevention and Control. http://cns.miis.edu – James Martin Center for Nonproliferation Studies. http://www.nbacc.net/index.html – National Biodefense Analysis and Countermeasures Center. http://www.biosecurity.edu.au/ – National Centre for Biosecurity, Australia. http://www3.niaid.nih.gov – National Institute of Allergy and Infectious Diseases. http://www.sipri.org/yearbook/2009 – Stockholm International Peace Research Institute. http://sunshine-project.org – The Sunshine Project. http://www.synbioproject.org – Synthetic Biology Project. http://www.usamriid.army.mil – U.S. Army Medical Research Institute of Infectious Diseases.

http://www.brad.ac.uk/bioethics/ – Dual-Use Bioetheics. http://oba.od.nih.gov/biosecurity – U.S. National Science Advisory Board for Biosecurity.

Biographical Sketch Michael J. Selgelid earned a B.S. in Biomedical Engineering from Duke University and a Ph.D. in Philosophy from the University of California, San Diego. He is a Senior Research Fellow in the Centre for Applied Philosophy and Public Ethics at the Australian National University, where he is also Director of a World Health Organization Collaborating Centre for Bioethics and Deputy Director of the National Centre for Biosecurity. He has held previous appointments at the University of Sydney and the University of the Witwatersrand in Johannesburg, South Africa.

Border Control M E Price, Washington, DC, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Asylum Most essentially, protection against expulsion to one’s state of origin. Asylum seeker A person who seeks protection against expulsion from a foreign state by claiming to be a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees, or by claiming to be otherwise eligible for asylum under that state’s asylum law. Non-refoulement The legal prohibition, set forth in Article 33 of the United Nations Convention Relating to the Status of Refugees, against returning a refugee ‘‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’’

Introduction In recent years, hundreds of thousands of people each year, largely from the developing world, have sought asylum in North America, Western Europe, and Australia. Some are escaping imprisonment and torture by oppressive governments; others are fleeing the chaotic violence that accompanies state breakdown or civil war; still others are seeking greater economic opportunities and a better life. Asylum in the industrialized West offers its recipients the chance to build their lives in physical security, to access advanced economies, and in most instances to gain permanent residence and ultimately citizenship. What are the moral duties of a state faced with requests by asylum seekers to enter? A number of subsidiary ques­ tions are implicated. The first set concerns whether a state ever has a duty to receive asylum seekers, and if so, how extensive that duty is. Must a state receive everyone who seeks asylum? What if the number of asylum seekers were 1 million, or 10 million, or 100 million? Is there some numerical threshold beyond which the force of any duty to receive is diminished? Suppose that a state has a duty to admit some asylum seekers, but that the duty also has some limit. A second set of questions concerns the desi­ derata for determining which asylum seekers should be accepted and which rejected. How should their various claims be prioritized? The current international law

Refugee Most narrowly, the term ‘refugee’ refers to a person falling within the definition of ‘refugee’ provided in the United Nations Convention Relating to the Status of Refugees and its subsequent Protocol: namely, a ‘‘person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’’ More broadly, in common parlance, the term ‘refugee’ refers to any person who has fled his or her home because of a threat to well-being, regardless of the reason.

framework governing asylum (laid out in the United Nations Convention Relating to the Status of Refugees and its implementing Protocol) prioritizes asylum seekers who have a well-founded fear of persecution on account of their race, religion, national origin, membership in a particular social group, or political opinion. But why should persecuted people receive preferential treatment? An alternative scheme would prioritize those who are in greatest need of protection – a group that may include some persecuted people but that may also include people suffering from extreme poverty; the very sick but curable; people who, although not targeted for any harm, none­ theless lack physical security due to generalized violence against which the state is unable to provide protection; and victims of natural disasters like tsunamis or earth­ quakes. Does a need-based desideratum make more sense, morally speaking, than a persecution-based one? A third set of questions arises from the fact that, in an age of restrictive immigration law, asylum is often the only avenue of access to the West for people from the develop­ ing world. The result is that many people file asylum claims despite being manifestly ineligible. Their claims can of course be denied; but denial takes time, and in the meantime, the mere filing of a claim can enable claimants to gain admission and legal presence or to postpone depor­ tation. Such claims promote public skepticism and undermine support for asylum. Policymakers thus face a tension between two goals: on the one hand, remaining

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open to asylum seekers with valid claims for protection, and, on the other hand, deterring people from filing claims in bad faith. How should asylum policy strike the balance between these two goals, and what ethical principles should inform that balance? For example, to what extent is it permissible for states to place asylum seekers in detention pending adjudication of their claims? Should states require asylum seekers to corroborate their stories with documen­ tary evidence in order to discourage dissembling? And when an asylum seeker’s claim is denied, how extensive should appellate review be? Although these questions and others like them have received little attention from moral philosophers and political theorists, they have great impor­ tance, and it is vital that answers be informed by ethical considerations. Decisions regarding issues of institutional design like these can, as a practical matter, make asylum an illusory promise.

How Many? The most obvious ethical question to ask about asylum policy is quantitative: How many asylum seekers, if any at all, is a country obligated to receive? The quantitative question arises because asylum seekers and the states that receive them have conflicting interests. The former want to be able to move unhindered by border controls and immigration quotas, and to justify their request for admis­ sion, they typically point to the very difficult circumstances they would face were they to return home. The latter want to retain control over their borders for a variety of reasons – some economic (e.g., protecting the jobs of local workers from dislocation; limiting social service expenditures), some cultural (e.g., preserving the dominance of the local language or the local way of life; xenophobia), and some institutional (e.g., protecting a national health insurance system from being overrun by sick foreigners who have not paid in). These conflicting interests reflect conflicting moral theories. Whose inter­ ests should prevail and why?

special duties of care that lead us to treat our compatriots with greater concern than nonmembers. For example, members of a national community may be motivated by these special duties of care to redistribute income among themselves or to make health care available to all mem­ bers, without doing so as well for those living outside its boundaries. Belonging to a national community also instills in its members communal moral values, and thereby provides a moral context or framework within which members make choices and live their lives. Being morally anchored in this way is, according to some nationalists, a necessary component of moral agency. Because national belonging is important to our sense of self and our moral agency, it is important that national communities and cultures be maintained, nurtured, and protected. It follows, the argument goes, that national communities, acting through their states, may restrict the entry of outsiders to preserve their distinctive char­ acter and way of life. Although the nationalist position holds that compa­ triots owe more to each other than they do to outsiders, most nationalists also recognize a limited set of moral duties owed to all persons, regardless of national mem­ bership. Thus, most nationalists reject an absolute right to restrict the entry of foreigners. Many acknowledge that a community’s right to protect its way of life is tempered by a duty of humanitarian assistance: When a person urgently needs assistance to avoid serious harm, and one can provide that assistance at minimal cost or risk to oneself, one has a moral duty to do so. For example, if one were to pass a child drowning in a shallow pond, she would have a moral duty to assist, even if it might make her late for an appointment. The danger faced by the child is extreme and urgent, and the cost and risk of assistance are very low. The same could be said of refugees – at least when the number seeking refuge is fairly small. Thus, many nationalists acknowl­ edge that, in at least some narrow set of cases, a refugee’s interest in admission can be sufficiently strong that it can overcome a state’s interest in closure.

The Nationalist Position One answer sometimes given is that the state’s interest in closure is never overcome by an individual’s circum­ stances. Call this the nationalist position. The argument usually begins by noting that feelings of connectedness to others are necessary in order to live a meaningful life. Such special relationships give rise to special duties of care and responsibility. The quintessential examples are the special duties owed by parents to children, or siblings to one another. According to the nationalist position, membership in a nation is also an important source of these feelings of connectedness and a key ingredient in one’s identity. Thus national belonging also gives rise to

The Cosmopolitan Position A second answer to the question of whose interests take precedence – those of the foreigner seeking to enter or those of the state seeking to exclude – holds that an individual’s interest in free movement always trumps a state’s interest in controlling access to its territory (except when such movement would create serious public disor­ der). This cosmopolitan position begins with the assumption that all human beings, no matter where they live, must be treated with equal moral concern. Restrictions on movement, the argument continues, are inconsistent with that moral presupposition. Like a caste

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system or feudal birthright, closed borders protect the privilege of those with the good fortune to have been born in wealthy, peaceful countries; and they consign to a life of misery those unfortunate enough to have been born in poor, disease-ridden, and war-torn regions. It seems manifestly unjust for one’s life chances to be so dictated by the happenstance of birthplace. It follows, the argument concludes, that a just set of rules governing the global order would recognize a right to free movement across borders. Some have criticized the cosmopolitan approach for offering little traction in addressing the ethical questions raised by asylum policy and border controls in the real world. Indeed, the very existence of the modern asylum regime is premised on mostly closed borders. It distin­ guishes between the ordinary migrant on the one hand, for whom legal channels of immigration are largely fore­ closed, and the refugee on the other, who has a special right to admission by virtue of the harm he would face were he forced to return home. If borders were open, asylum would be largely superfluous – the asylum seeker could simply move, just like the ordinary migrant. But in a world of mostly closed borders, the hard moral question raised by asylum policy concerns when a person should be permitted to avail himself of this loophole in the fabric of immigration controls. Moreover, these critics continue, a moral theory cali­ brated to address the real-world problems raised by asylum policy must take account of actual political dynamics. When the public perceives that an asylum system is being exploited by ordinary migrants for whom it was not designed, public support for asylum as a whole is undermined. This dynamic was in part respon­ sible for the dramatic curtailing in the early 1990s of what had been a broad constitutional right to asylum in Germany. And, in the early 2000s in the United Kingdom, it arguably aided the adoption of a raft of measures designed to prevent asylum seekers from reach­ ing UK territory where they could lodge a claim. The Humanitarian Principle Matthew Gibney suggests that a realistic cosmopolitan and a moderate nationalist will converge on the humani­ tarian duty described previously: States have an obligation to assist refugees when the refugees face grave harms and the costs of assistance are low. The term ‘cost’ is considered broadly, as encompassing not only economic costs, but also environmental and demo­ graphic constraints, and, importantly, political feasibility and public support for asylum. Thus, Gibney says, whether costs are low is dependent on the social and political context. We must ask not only how many refu­ gees a state can reasonably be expected to integrate given its demography and finances, but also how many refugees

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it can integrate given its political climate, before risking a backlash that would undermine public support for refugee assistance and possibly for foreign aid more generally. For the realistic cosmopolitan, the humanitarian principle is appealing only because it is the best that can be achieved. For the nationalist, the principle is appealing because it accommodates the view that the interests of a national community take precedence over the interests of foreign migrants. The fact that costs must be assessed in light of the political climate means that there is no general answer to the question of when costs are low. The public’s will­ ingness to incur costs to help refugees is dynamic. It will change over time and from refugee crisis to refugee crisis. For example, the political will to resettle refugees is often strongest when the refugees have familial or cultural connections with citizens of the host state. In such situa­ tions, the political cost of reception is lower, and states are ethically required to do more. Political support for asylum programs can also be influenced by political entrepre­ neurship. It follows, Gibney explains, that politicians have a duty to foster a political climate that is more hospitable to asylum seekers and refugees. While cosmopolitans and nationalists may agree (at least given real-world constraints) about the humani­ tarian principle that governs states’ duties toward asylum seekers, they may well disagree about how that principle should be applied in practice. A nationalist is likely to take a dimmer view than the cosmopolitan of what is possible financially and politically, and is likely to assign greater importance to the changes refugee integration can bring to a community’s culture and way of life. Nonetheless, the humanitarian principle does useful work because it defines the sphere of deliberative disagreement. It focuses debate on a variety of factors that everyone can agree are relevant – such as population density, wealth, economic projections, financial stability, natural resource availabil­ ity, conditions in local housing and labor markets, the ability of a given group of refugees to integrate easily, and public attitudes toward asylum seekers – even if views may differ about, for example, the degree to which the state’s balance sheet can handle the burden of additional refugees, the threat posed by public disap­ proval to the viability of the asylum system, and the relative significance of the various factors just discussed. Another important issue to consider is the possibility of coordination among states to share the burden of refu­ gee claims. Sometimes, a small number of states are bombarded with a large number of asylum claims. For example, in the early 1990s, Germany bore the brunt of refugees fleeing the Balkan wars, and the United States was overwhelmed by Haitian asylum seekers. Faced with large influxes, it is tempting for affected states to throw up barriers, like interdiction on the high seas, to prevent additional asylum seekers from filing claims. And it is

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tempting for unaffected states to deny any responsibility for resolving the crisis; under international law, a state’s duty to protect refugees is only triggered by the refugee’s entrance into that state’s territory. In such situations, however, many have argued that a bystander state’s moral obligation is more extensive than its legal obliga­ tion: States should participate with other states in burdensharing schemes, referring asylum seekers to one another when appropriate. Such schemes can help to resolve situations of mass influx in an orderly manner, ensuring that as many refugees as possible receive protection with­ out placing undue stress on the asylum system in any single country. Asylum in Context In assessing the extent to which a state must receive asylum seekers – as well as the proper desiderata for prioritizing their claims – some have insisted that one must also consider asylum within the context of a com­ prehensive refugee policy. Asylum, after all, is only one of many tools used by states to help refugees. For example, states also provide crisis-based financial or logistics aid to intergovernmental organizations (like the United Nations High Commissioner for Refugees (UNHCR)) and nongovernmental organizations; they provide such aid directly to foreign governments; they provide long-term development aid to remove root causes of refugee flows; they can provide military aid to address physical insecur­ ity and political instability and in extreme cases intervene militarily to establish safe havens; and they can help to establish temporary shelter close to asylum seekers’ home regions in order to facilitate repatriation once a tempor­ ary danger has passed. Some states also have overseas refugee resettlement programs, which identify refugees who remain in their regions of origin and then transport them to refuge abroad. Of course, asylum is not perfectly interchangeable with these other refugee policy tools. Asylum provides a refugee with protection abroad, and does so without requiring any cooperation from the state of origin. It follows that asylum may be uniquely well-suited to situa­ tions in which it would be impossible or ineffectual to try to assist the refugee at home. For example, when con­ fronted with asylum seekers fleeing persecution, as in the case of the religious minority or political dissident, asy­ lum may be the only possible policy response. The needs of many refugees, however, can often be met by a number of different refugee policy tools. And, the argument continues, when evaluating whether a state has met its humanitarian duty to assist refugees, it makes sense to consider the suite of refugee policy tools the state has used, and not merely its asylum policy. Imagine, for example, a state that devotes an unusually large share of its gross domestic product to crisis-based and long-term

foreign aid and that operates a large-scale refugee reset­ tlement program. One might conclude that the state has thereby satisfied its humanitarian duty to aid refugees – regardless of whether it also offers asylum. Conversely, imagine a state that sends little aid abroad and does not have any overseas refugee resettlement program. One might conclude that, to satisfy its humanitarian duty, such a state would need to adopt an unusually open asylum policy. This point is controversial, however: International law imposes the same duty of non-refoulement – the legal pro­ hibition in Article 33 of the UN Convention against returning refugees to countries where their lives or free­ dom would be threatened – on every state, without regard to what other things states do to assist refugees; and many view non-refoulement as a sacrosanct moral principle. Nonetheless, there may be good moral reasons to think that states ought to place greater emphasis on refugee policy tools other than asylum when they seek to meet their humanitarian duty. For one thing, asylum suffers from a proximity bias: That is, to be eligible, one must present oneself at the border, or inside the territory, of the country from which one wishes to claim asylum. If for some reason one cannot make it to that country’s doorstep – for example, one lacks the physical strength to traverse an ocean or desert or the financial resources to pay smugglers – asylum will not be any help. Unsurprisingly, asylum tends to favor young males and to disfavor the elderly, children, women, and the very poor. In other words, asylum neglects the people who may be most in need of help. By contrast, various forms of in situ aid as well as overseas refugee resettlement programs may better address the needs of the worst off. Asylum also has an ‘expatriate bias’: That is, asylum seekers have their claims adjudicated, and asylum recipi­ ents receive the benefits of asylum, in the state of refuge. Running an asylum adjudication system and providing various kinds of benefits designed to foster integration – including (depending on the state of refuge) housing assistance, living stipends, employment training, and health care – is an expensive proposition. Although cost estimates are hard to come by, in 2003, Western states are estimated to have spent more than $10 billion adminis­ tering their asylum programs. The same year, the United Kingdom alone spent about £1 billion to support 93,000 asylum seekers – not counting the cost of adjudicating their claims. By contrast, the entire UNHCR budget in 2003 – intended to provide assistance to over 20 million refugees and internally displaced persons – was only $1.2 billion, of which the UK donated about $47 million. Given the reality of limited budgets and limited political will, asylum is unlikely to be the most cost-effective way to help the world’s refugees. In a world of unlimited resources, perhaps states would both open their borders to asylum seekers and send large

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amounts of money overseas to help those left behind. But in the real world, asylum’s proximity bias and its expense relative to other refugee policy tools might prompt even the cosmopolitan to ask: Why shouldn’t states end their asylum programs in favor of other, more cost-effective forms of refugee assistance? One strong argument for the enduring importance of asylum as a refugee policy tool – and for a legal duty of non-refoulement – is ultimately practical in nature, not moral. The norm of non-refoulement is widely accepted and widely followed, and it has deep roots in the culture and history of Western states. It appeals to the moral intuition (widely felt, even if regarded as dubious by some philosophers) that turning away refugees at the border is morally worse than failing to assist them when they are further away. And it is numerically unbounded. States have continued to adhere to the norm despite rising numbers of asylum applications, and despite efforts to reduce those numbers through other means, such as off­ shore interdiction of asylum seekers, visa requirements, and other mechanisms to prevent applications from being filed. In the end, although refugee policy tools other than asylum may be fairer (by favoring the most needy rather than the most mobile) and more cost-effective (saving more lives per dollar spent), the argument concludes that refugees on the whole may be best off with a widely respected norm of non-refoulement, supplemented by other refugee policies. The duty to assist all refugees, and not only those who appear on our shores, is not as deeply rooted in Western tradition and history. And other refugee policy tools necessarily require politicians to make discretionary choices about which refugees to assist. These facts make other refugee policy tools more vulner­ able to downward budgetary pressure and more prone to political manipulation. By contrast, respect for the prin­ ciple of asylum serves as a guarantee that at least some refugees will always be able to find shelter.

Prioritizing Asylum Claims Assuming that a state’s duty to admit asylum seekers has some limit, the next question is how their claims should be prioritized. Who has the strongest claim to entry? The most obvious answer looks to the gravity and urgency of a foreigner’s need for protection – whether that need results from persecution, civil war, famine, extreme poverty, or some other cause – as the key to prioritizing asylum claims. The more serious and urgent the need for protec­ tion, the stronger the asylum seeker’s claim to refuge. The ethical appeal of such a principle is obvious: If the purpose of asylum is to protect people from harm, it makes sense to prioritize those people who urgently face the most serious harm. Such an approach, however, would mark a

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major departure from the governing international legal framework, which holds that asylum is meant to protect those who have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Many people in need of protection – for example, the very poor, those caught in the cross-fire of civil war or gang violence, and those displaced by famine, earthquake, or tsunami – are not persecuted. What, if anything, can be said for limiting the scope of asylum in this fashion? The best argument for limiting asylum to persecuted people is premised on the observation that there are many ways to help refugees. Recall the previous discussion of asylum’s proximity bias and expatriate bias. If the goal is to assist people with a grave and urgent need for protec­ tion, such assistance often can be provided more fairly and efficiently through refugee policy tools other than asy­ lum. It arguably follows that asylum is best suited for a more modest task, namely, sheltering those refugees who could not be helped in other ways – the paradigmatic example of which is persecuted people. When a state wishes to do harm to its citizens, there is usually little that outsiders can do to help them other than to offer shelter. Of course, one might object, it is not always possible to help a refugee at home even when the state of origin is well-intentioned. Political instability and civil conflict can take years to work through, and poor infrastructure and corruption may make it hard, after a famine or natural disaster, to satisfy the refugee’s basic needs at home. Sometimes, people fleeing such situations, like persecuted people, can only be helped abroad. The answer given is that states have a number of policy frameworks for offering shelter to refugees abroad, of which asylum is only one. States also offer what is sometimes called ‘humanitarian protection’ to nonperse­ cuted refugees who need shelter abroad; such protection is usually temporary, in contrast to asylum, which is often presumptively permanent. The argument for reserving asylum for persecuted people, and relying on other forms of protection to assist nonpersecuted refugees, is that persecuted people face a distinctive kind of harm that calls for a distinctive response. They do not merely experience insecurity; they are effectively expelled from political membership. They are not only refugees, but also exiles. Asylum, the argument continues, responds to the dis­ tinctive situation of the refugee-exile in a fourfold manner: First, like other refugee tools, asylum provides the refugee protection from harm. Second, in recognition of the distinctive kind of harm that persecuted people suffer, asylum offers a distinctive remedy: not merely protection, but also presumptive political membership (permanent protection) in the state of refuge. Third, unlike other refugee policy tools that are focused solely

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on meeting a refugee’s needs, asylum reflects a moral judgment about another state’s actions. The term perse­ cution connotes illegitimate harm. Limiting asylum to persecuted people reflects the moral distinction between, on the one hand, violence perpetrated by the state for political ends, and, on the other hand, harm that can befall people despite their state’s best efforts to prevent it. Fourth, asylum seeks to end the persecution that forced the refugee-exile to flee by expressing condemnation of the regime responsible. Asylum is thus intertwined with other foreign policies that promote the rule of law and human rights abroad, such as diplomatic overtures; expul­ sion from international organizations; economic and trade sanctions; criminal prosecution in an international tribu­ nal; sponsorship of nongovernmental organizations and opposition groups; and in the extreme case, direct mili­ tary intervention. Asylum is a means to remedy on an individual level misconduct by foreign states that, if suffi­ ciently widespread, would justify one of these more intrusive forms of external interference. And, the argu­ ment concludes, asylum serves as a warning to a persecutory state that, unless it changes its ways, more coercive intervention may follow.

Adjudicating Asylum Claims Regardless of whether the proper criterion for granting asylum is need, exposure to persecution, or something else entirely, policymakers will inevitably face a dilemma: They must strike the right balance between policies that avoid false positives (mistakenly granting asylum to peo­ ple who do not qualify) and policies that avoid false negatives (mistakenly denying asylum to people who do qualify). If a system produces too many false positives, it will be overrun by fraudulent claimants: Asylum, after all, is one of the few ways that people from the developing world can legally enter and remain in Europe, North America, and Australia. And recent experience suggests that support for asylum will be undermined if the public perceives that the asylum system is being exploited by ordinary immigrants to circumvent border controls. This political dynamic means that accurate asylum adjudica­ tion is a moral imperative; without it, public support for the system will be undermined and its viability will be threatened. Conversely, if a system produces too many false negatives, the result is that genuine refugees are shipped back to torture and death – clearly, a moral catastrophe. The difficulty for policymakers is compounded by two other considerations: First, many procedural mechanisms that can be used to weed out unmeritorious claims (e.g., requiring asylum seekers to corroborate their claims with documentary evidence) will also result in the denial of meritorious claims (e.g., claims by

persecuted people unable to produce any evidence beyond their own testimony). Second, many procedural mechanisms designed to avoid mistaken denials (e.g., thorough appellate review) will increase the time required for a complete adjudication and thereby create incentives for migrants to file bad-faith asylum claims in order to delay deportation as long as possible. Consider three principles that have been advanced to guide policymakers’ response to these issues. The first is selectivity, according to which policymakers should adopt policies that selectively discourage unmeritorious claims, rather than policies that reduce the number of such claims by shrinking the total number of asylum applications. Satisfying the principle of selectivity ensures that states remain open to genuine refugees even as they attempt to combat fraudsters and to shore up fragile public support. Many of the policies adopted by states over the last two decades fail on this score. For example, states have employed a range of policies designed to prevent asylum seekers from reaching their territory, and thus, from applying for admission. These policies include visa requirements, sanctions on common carriers such as air­ lines and ship lines for transporting passengers without proper documentation, and the interdiction and return of asylum seekers on the high seas. Because such policies prevent genuine as well as unmeritorious claims from being made, they violate the principle of selectivity. The second principle is hospitality, according to which states should not attempt to deter bad faith claims by imposing unreasonable burdens on asylum seekers. That is, asylum seekers should not be forced to prove their bona fides by submitting to serious hardship, like a med­ ieval trial by ordeal. Many policies adopted by states in recent years fail this principle as well. For example, some states have declined to support asylum seekers while they await the adjudication of their claims, and they have placed asylum seekers in detention pending adjudication. One rationale for these policies is that when applying for asylum is made less attractive, or in the case of detention, when it is made positively burdensome, bad-faith clai­ mants will be deterred from filing applications. But the onus of such policies falls on genuine refugees for whom the alternatives – going back to a country where they may face torture or death – are even worse. According to the principle of hospitality, it is unfair to shift the cost of asylum fraud onto the very people for whom asylum is intended. The third principle is caution. Although states must design adjudication procedures that weed out unmeritor­ ious or fraudulent claims, the principle of caution dictates that their first priority should be to minimize mistaken denials of asylum rather than mistaken grants – at least to the extent possible given public sentiments. Again, many recent policies arguably violate this principle. For exam­ ple, as mentioned previously, some states permit asylum

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adjudicators to require documentary corroboration by asylum seekers of their stories. Such a requirement obviously makes it more difficult to win asylum on a fraudulent claim; but for many genuine refugees, forced to flee their homes at a moment’s notice, such evidence is very difficult to obtain. The UK proposed taking DNA samples from asylum seekers to verify nationality in order to prevent fraud; however, the program was suspended when critics pointed out that DNA sampling could not precisely pinpoint a person’s country of origin, and that the program would thereby risk excluding genuine refu­ gees whose ancestors had come from elsewhere. To take another example, a number of states have imposed filing deadlines, which prevent undocumented migrants who have resided in a country for a long time from using the asylum process as a tactic to delay depor­ tation. However, filing deadlines also burden genuine refugees. Many fail to apply within the designated time (1 year, in many states) because they hope that conditions in their home country will improve enough to allow them to return. For others suffering from posttraumatic stress disorder, the task of assembling the necessary paperwork may seem like an insurmountable hurdle. Many asylum seekers do not speak the language in the place they arrive, and some have no family or other support network in place. They also may not know how to apply for asylum or to find representation. For them, even a 1-year filing deadline might be unrealistic.

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See also: Communitarianism; Cosmopolitanism; Global Ethics, Overview; Human Rights; Mobility (Migration).

Further Reading Carens JH (1995) Aliens and citizens: The case for open borders. In: Beiner R (ed.), Theorizing Citizenship, pp. 229–253. New York: SUNY Press. Carens JH (1997) The philosopher and the policymaker: Two perspectives on the ethics of immigration with special attention to the problem of restricting asylum. In: Hailbronner K, et al. (eds.), Immigration Admissions: The Search for Workable Policies in Germany and the United States, pp. 3–50. Providence, RI: Berghahn Books. Gibney MJ (2004) The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees. Cambridge: Cambridge University Press. Hathaway JC and Neve RA (1997) Making international refugee law relevant again: A proposal for collectivized and solution-oriented protection. Harvard Human Rights Journal 10: 115–211. Hathaway JC (1991) Law of Refugee Status. Toronto: Butterworths. Hathaway JC (2005) The Rights of Refugees Under International Law. Cambridge: Cambridge University Press. Martin DA (1991) The refugee concept: On definitions, politics, and the careful use of a scarce resource. In: Adelman H (ed.), Refugee Policy: Canada and the United States, pp. 30–51. Toronto: York Lanes Press. Miller D (1995) On Nationality. Oxford: Oxford University Press. Price ME (2009) Rethinking Asylum: History, Purpose, and Limits. Cambridge: Cambridge University Press. Scheffler S (2001) Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought. Oxford: Oxford University Press. Shacknove A (1985) Who is a refugee? Ethics 95: 274–284. Singer P and Singer R (1988) The ethics of refugee policy. In: Gibney M (ed.), Open Borders? Closed Societies? The Ethical and Political Issues, pp. 111–130. New York: Greenwood Press. Tamir Y (1993) Liberal Nationalism. Princeton: Princeton University Press. Walzer M (1983) Spheres of Justice. New York: Basic Books. Zolberg AR, Suhrke A, and Aguayo S (1989) Escape From Violence. Oxford: Oxford University Press.

Conclusion This article has canvassed three broad areas of ethical inquiry relating to asylum: First, how many asylum see­ kers must a state receive? Second, assuming there is some limit to the number, how should a state prioritize their claims? And third, how should a state strike the balance between remaining open to asylum seekers while at the same time preserving control over its borders? As the preceding discussion suggests, answering these questions is an exercise in applied ethics – ethics applied in the real world, in view of all the constraints that reality imposes. Such an analysis focuses theoretical attention on problems that can be addressed within existing institutions and can help to push policymakers in the direction of global justice – even within such constraints.

Relevant Websites http://www.ecre.org – European Council on Refugees and Exiles. http://www.refugeecouncil.org.uk – Refugee Council. http://www.unhcr.org – United Nations High Commissioner for Refugees. http://www.refugees.org – U.S. Committee on Refugees and Immigrants.

Biographical Sketch Matthew E. Price holds a Ph.D. in Political Science from Harvard University and a J.D. from Harvard Law School. He is the author of Rethinking Asylum: History, Purpose, and Limits (Cambridge University Press, 2009).

Brain Death C A Defanti, Alzheimer Centre, Gazzaniga (Bergamo), Italy ª 2012 Elsevier Inc. All rights reserved.

Glossary Anencephaly A rare condition in which both brain hemispheres are not developed. In many cases pregnancy ends with stillbirth. The newborn babies who survive do not survive more than a few days or weeks. Brain death (BD) The clinical condition of patients with massive damage to the brain, leading to the irreversible cessation of all brain functions, previously defined as irreversible coma. Brainstem death A concept suggested by the Royal Colleges of British Physicians and Surgeons (1976) and thoroughly defended by C. Pallis. It means the irreversible cessation of the brainstem functions, that is, the ability to be conscious, to breathe spontaneously and hence to retain a spontaneous heartbeat. This definition implies that it is neither essential nor possible for the clinician to prove the permanent cessation of hemispheric functions in order to ascertain death. Whole brain death (WBD) A refinement of the previous BD concept, endorsed by the President’s Commission

Prehistory of Brain Death Historians of medicine have shown that no clear-cut concept of death existed in the past and that many doubts lingered about its ascertainment during the last three centuries. The fear of apparent death and of premature burial was rather widespread during the eighteenth and nineteenth centuries. Just at the beginning of the nineteenth century, Bichat suggested a famous definition of life (la vie est l’ensemble des fonctions que s’opposent a` la mort; life is the sum of functions that oppose death), commenting on which Foucault stressed in his book Naissance de la Clinique the important point that ‘‘the first scientific discourse on life had to pass through death.’’ It was Bichat who described the three great routes toward death (cardiac, pulmonary, and cerebral) and suggested the concept of ‘‘death of organs or partial death,’’ anticipating in a way the Harvard definition (see later). Connecting strictly the definitions of life and death, Bichat backed the attack against mortality typical of the Enlightement. Actually Me´nuret, writing the entry death of the Encyclope´die before Bichat, had distinguished between ‘‘imperfect death’’ (mort imparfaite) and ‘‘perfect or absolute death’’ (mort absolue), the first being a transient

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(1981); it means the irreversible cessation of all brain functions (i.e., the functions supported by the hemispheres and the brainstem). Neocortical (or cortical) death (NCD) A term meaning the irreversible cessation of the functions of the cerebral cortex; its main clinical feature is permanent unconsciousness with sparing of brainstem functions. Coma Profound state of unconsciousness with eyes closed. A comatose person cannot be awakened, fails to respond normally to pain or light, does not have sleep–wake cycles, and does not take voluntary actions. Vegetative state (VS) A condition of patients with severe brain damage in whom coma has progressed to a state of wakefulness without detectable awareness. Persistent vegetative state (PVS) A vegetative state lasting more than 1 month. Permanent vegetative state A vegetative state with no hope of recovery.

state, in which vital functions are arrested but can be reestablished, whereas in the second organ deterioration is such that no recovery is possible. Me´nuret stressed the importance of the first condition and the possibility of rescuing people, suggesting techniques such as artificial respiration (which was already being used for rescuing the drowned), thus anticipating modern intensive care.

The Harvard Committee’s Proposal and Its Historical Framework At the very moment (approximately 1910) when reliable diagnostic techniques for the demonstration of cardiac arrest (i.e., EKG) became available, further technical advances (i.e., resuscitation) showed that cardiac arrest, once considered as the central sign of death, no longer was a valid criterion, since it had become reversible, at least in some cases. Moreover, the introduction of mechanical ven­ tilation and the development of modern intensive care allowed patients with severe brain damage to survive, although unable to breathe spontaneously, in a state of complete unconsciousness.

Brain Death

The seminal paper ‘‘A Definition of Irreversible Coma’’ (August 5, 1968) by the Harvard ad hoc Committee appeared in the aftermath of the first success­ ful heart transplantation performed by Christiaan Barnard in Capetown (December 1987). The organ was retrieved from a young woman in a state of coma, deemed irrever­ sible, due to a severe brain injury. There is little doubt that this event was the primum movens of Harvard University’s decision to set up a Committee whose mis­ sion was to study the problems relating death and organ transplantation. The main arguments of the paper were clearly stated in its opening sentences: ‘‘Our primary purpose is to define irreversible coma as a new criterion for death. There are two reasons why there is a need for a definition: 1. Improvements in resuscitative and supportive mea­ sures have led to increased efforts to save those who are desperately injured. Sometimes these efforts have only partial success so that the result is an individual whose heart continues to beat but whose brain in irreversibly damaged. The burden is great on patients who suffer permanent loss of intellect, on their families, on the hos­ pitals, and on those in need of hospital beds already occupied by these comatose patients. 2. Obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation.’’ In other terms, the paper starts from the recognition of the empirical fact that resuscitation may fail not only in the obvious sense, i.e., not being able to prevent death, but in another, special sense as well: it may lead to a peculiar clinical state, irreversible coma, unknown before the development of intensive care and expressing the com­ plete absence of brain functions. This was not a discovery of the Committee, since the first description of this con­ dition had been made some 9 years earlier by the French doctors Mollaret and Goulon, who had labeled it coma de´passee´. The paper was new insofar as, after having traced the features of irreversible coma, it raised the moral question of whether it is reasonable to go on with medical treatments in order to maintain it. The other concern of the Committee was a social need, the need for organs for transplantation. The solution chosen by the Committee was to sug­ gest a new definition, that is to consider this clinical condition as a new criterion of death and to label it brain death syndrome. It is often not fully understood that the Harvard paper was not, properly speaking, a scientific, but a moral and political document issued with a close look at the contemporary situation. In fact, the controversy was raging in the scientific world and among general public after the Barnard’s operation and the first similar interventions made in the United States. For instance, Dr. David Hume, in whose department Barnard had learned the surgical technique of heart

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transplantation (performed only in nonhuman primates), had been sued by the family of the organ donor. An earlier draft of the paper was even more explicit about the cir­ cumstances and the motives underlying the Committee’s work and was discarded precisely because its wording exposed it to the obvious criticism that the new definition of death was merely instrumental to solving the problem of the scarcity of organs. It is useful to remember how the Harvard Committee was composed: it was a 13-member committee, with a majority of doctors, but with the crucial participation of one lawyer, one historian, and one theologian. It was chaired by Henry Beecher, a well-known physician, whose seminal papers on the ethical problems of human experimentation were instrumental in establishing both new legislation on these problems and in stimulating new sensitivity to these aspects among medical professionals. Consequently, the Harvard Committee was a true multi­ disciplinary body, a prototype of the future Ethics Committees, encompassing those competences (in law, humanities, and theology) deemed necessary to give it the authority to make a proposal with a far-ranging impact on the clinical practice. It is not surprising that no philosophical discussion of the concept of death is found in its paper, but instead there is an important quotation of a speech given by the late Pope Pius XII to a medical congress, in which two main points were made: (1) that the verification of the moment of death is the task of the medical profession and is not within the competence of the Church and (2) it is not mandatory to continue to use extraordinary means indefinitely in hopeless cases. This is an obvious political move in order to prevent possible criticisms from reli­ gious sources. Today, reading the Harvard paper so many years after its issue, it is easy to point out many obvious flaws. There are both problems of theoretical foundation and of internal consistence. No discussion is attempted on a number of questions such as: What is death? Is the definition of death a purely metaphysical or also a moral issue? Is the death of a human being something different from death of other living entities? Concerning internal flaws, the reason given to equate irreversible coma and death (i.e., permanent loss of intellect) is also valid for the persistent vegetative state. Why, then, restrict the equation to irreversible coma and not extend it to this no less troubling condition? Moreover, even though there was a rather widespread consensus among neurologists and intensive care physicians on the clinical criteria of BD, no reliable scientific validation of these criteria (i.e., of their ability to predict true irreversibility) had been reached at that time (and is still lacking today if one adheres to the now standard criteria of evidence-based medicine).

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The Medical Inconsistencies of the Definition In 1981, the President’s Commission for the Study of Ethical Problems in Medicine somewhat completed the work of the Harvard Committee, confirming, with slight adjustements, the adequacy of its clinical criteria and backing the BD proposal. However, the Commission addressed the conceptual issues of the definition of death more closely. Different options were analyzed: the whole brain death formulation (death is the irreversible cessation of all functions of the hemispheres and of the brainstem), the higher brain or cortical death version (death is the irreversible lack of consciousness, due to massive damage to the brain hemispheres) and the nonbrain formulations (such as the traditional definition based on the arrest of the circulation of bodily fluids). The Commission implicitly rejected the Brainstem Death definition, endorsed by the Royal Colleges of Physicians and Surgeons in the United Kingdom, and explicitly criticized the higher brain formulation: the arguments for that were both theoretical (there are major problems in defining consciousness and person­ hood, the anatomical substrate for these is poorly known) and empirical (it is very difficult to diagnose the irreversible lack of consciousness). The final choice was in favor of WBD. However, the WBD formulation itself is open to many stringent criticisms. Actually, the demon­ stration of the irreversible cessation of the functions of all parts of the brain is practically impossible, as Pallis has argued most convincingly. Moreover, some recent empirical data, in particular the ability to keep the bodies of brain-dead people biologically alive for weeks or even months, as shown by the cases of some pregnant wives thus assisted, who eventually gave birth to a baby (through cesarean section), demonstrated unequivocally that modern intensive care is able to replace the integra­ tive functions of the central nervous system, at least for several weeks or months. Other empirical data show that many individuals in whom a diagnosis of BD is made following the strict criteria suggested by the Consultants to the President’s Commission retain some brain activity. For instance the secretion of antidiuretic hormone (ADH), a function of hypothalamus, is spared in 30–40% of cases. Clinically, the lack of ADH secretion gives rise to diabetes insipidus, and this condition would be present in all brain-dead people if the hypothalamus were completely destroyed. The same consideration applies to thermoregulation, another hypothalamic function not consistently abolished in brain-dead people. Of course this does not mean that such individuals retain consciousness or that they are not hopelessly doomed, but only that there are discrepancies between the clinical criteria for BD routinely used

worldwide and the conceptual definition of WBD (irreversible loss of all functions of the brain).

The Philosophical Flaws of the Definition On the philosophical level, an attempt to justify the equation between BD and death was made in 1981 by the President’s Commission for the Study of Ethical Problems in Medicine, quoted above, that resorted to two complementary argu­ ments: the argument from loss of the primary organ (the brain being the critical system in that it is the integrating center of the organism; complete cessation of its functions means that the organism is no longer functioning as a whole, i.e., is dead) and the argument from loss of integrated bodily functioning (life is the integrated functioning of the organ­ ism as a whole; crucial to this functioning is the interplay among brain, heart, and lungs; hence cessation of brain functions, in the peculiar condition of a ventilated patient in an intensive care unit, is a sign that death has occurred, as well as cardiac arrest is a sign of death in ordinary situations). The Commission was aware that both arguments were open to several criticisms, the main ones being the critical role given to the brain (in fact other organs are equally critical to the organism: e.g., liver and kidney) and the supposed irre­ placeability of the brain (intensive care may allow the circulation and metabolism of these individuals for some time and even for weeks or months: this shows that it is now possible to replace at least some integrating functions of the brain, or, more precisely, of the brainstem). However, its conclusion was that ‘‘while it is valuable to test public policy against basic conceptions of death, philosophical refinement beyond a certain point may not be necessary.’’

The Cortical Death Theory: A Remedy for the Medical Inconsistence of the BD Definition? Since there is discordance between the clinical criteria for BD and the conceptual definition of WBD (irreversible loss of all functions of the brain), a possible remedy could be to revise the BD concept, equating death with the permanent lack of consciousness, according to the socalled neocortical death theory (remember that the main argument raised by the Harvard Committee in order to back its proposal was that the individuals in irreversible coma suffer from permanent loss of intellect). Actually, the present clinical criteria for BD are also very strong criteria for permanent lack of consciousness. What are the main flaws of the NCD theory? The first one pertains the very term of ‘‘neocortical death.’’ In fact, it is simplistic to affirm that the cerebral cortex is the anatomical substrate of consciousness; many other ner­ vous centers are involved in this phenomenon, such as the

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thalamus and the brainstem itself (the latter has probably nothing to do with the content of consciousness, but is certainly involved in maintaining wakefulness). Consequently, the term ‘‘cortical death’’ is at best an approximate one. However, the major problem with the idea of NCD is another one: if it were accepted, not only BD, but also other clinical conditions would qualify as death such as the persistent vegetative state (PVS) and anencephaly. Let us briefly review these clinical conditions. What is PVS? Due to the development of modern intensive ther­ apy, some patients with overwhelming damage of the cerebral hemispheres survive, after a more or less pro­ longed coma, in a state of absence of cortical functions, but with an (at least partial) sparing of brainstem func­ tions. This condition is known as PVS and can be reversible, but it may become a chronic state. Its distin­ guishing feature is wakefulness without awareness. Individuals in PVS seem to be awake, with open eyes, but they are unable to follow visual stimuli and do not respond appropriately to any stimulation. Breathing, cir­ culation, and regulation of body temperature are more or less normal, without artificial support. PVS is clearly a different condition from BD. At variance with brain-dead individuals, those in PVS can survive for months and even many years and decades, only with careful nursing and artificial hydration and nutrition. The diagnosis of PVS is much more difficult than recognition of BD. No single test is available to detect PVS and only by means of a long and skilled clinical observation is it possible to establish the typical picture of a complete dissociation between wakefulness and awareness, due to demonstrable massive damage of the cerebral hemispheres. Even more difficult is establishing a prognosis of irreversibility, that is, to speak of a perma­ nent vegetative state. The minimum length of the observation period is still controversial: 3–6 months are probably sufficient, if the etiology is an anoxic insult, while in PVS due to other causes such as head injury 12 months or more are necessary. What is anencephaly? It is the most severe malforma­ tion of the central nervous system, characterized by the lack of development of the cerebral hemispheres and the cranial vault. There are different types of anencephaly: in the more common (meroanencephaly), the baby, gener­ ally a female, has a more or less normal face, but lacks a forehead. The eyes may protrude or squint, but the major defect is the lack of a cranial vault: above the eyebrows there is no skin, but a rudimentary brain covered by thin meningeal membranes. These babies have more or less functioning brain stems and some of them are able to breathe spontaneously. If they are not given artificial ventilation, most of them do not survive longer than a few hours or days, but with mechanical assistance they can be maintained for months or even years. In some

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respects, they are similar to individuals in a PVS. A difference, of course, is the fact that an individual in PVS was previously a conscious being (with a personal history), while an anencephalic baby never was nor will be. Another difference is that it is much easier to maintain a PVS individual (by artificial nutrition) than an anence­ phalic baby, the latter usually requiring mechanical ventilation. Finally, the diagnosis of anencephaly is an easy one and the prognosis of irreversible lack of con­ sciousness can be made without a lengthy observation. Within the NCD definition, both individuals with PVS and anencephaly could be considered dead. While it is now usual to pronounce a brain-dead individual as dead and to disconnect him or her from the respirator (and possibly harvest an organ), to many it appears counterintuitive to declare a PVS individual (or an anencephalic baby) as dead and, as a consequence, to proceed to burial: remember that these bodies lack consciousness but are usually able to breathe spontaneously! Another strong criticism of the cortical theory is referred to as the slippery slope argument. The opponents contend that if the concept of death is related to a psy­ chological property (i.e., consciousness) instead of a biological fact, it would be easy to extend the concept from PVS to other abnormal psychological states such as dementia or severe mental retardation. However, the main criticism of the cortical theory stems from the diffi­ culty of making a prognosis of a permanent vegetative state. From a practical point of view, it is difficult to endorse a definition of death that requires 12 months or even more of clinical observation.

The Defense of the Traditional Definition of Death The implementation of the BD definition into medical practice was not without opposition. On a theoretical level, it is important to quote the influential attack on the BD concept made by Hans Jonas almost immediately after its proposal. He made a strong case for sticking to the old concept of death; his main arguments were the instru­ mental character of the Harvard proposal, aimed essentially at making the procurement of organs easier, the obscure, exoteric criteria of BD, and finally the impor­ tance of not separating death of human beings from that of other living creatures. In some countries such as Denmark the local Council of Ethics had still not backed the BD concept in 1988 and instead had made a different proposal: it suggested con­ sidering so-called brain-dead patients not really dead, but having irreversibly entered the dying process. A parallel suggestion was to make the procurement of organs from these patients licit if they had previously signed a valid donor card; in this case the removal of organs for

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transplantation ‘‘becomes the cause of the conclusion of the dying process, but not the cause of the death of the person.’’ This proposal, however interesting, did not prevent the Danish Government from implementing BD legislation soon after the Council’s report. Considerable problems were encountered by BD in another European country, Germany, where in the mid­ 1990s a pregnant woman in BD was submitted, with the husband’s consent but unsuccessfully, to a trial of prolon­ gation of intensive care in order to allow the maturation of the fetus. This case, known as the Erlangen baby from the town where the case occurred, raised strong opposi­ tion from the public and the law on organ transplantation, approved subsequently in 1997, while permitting organ harvest after the certification of BD criteria, does not explicitly equate BD with death. It is often not fully recognized that the success of BD in Western societies has something to do with the implicit, widespread acceptance of the mind/body dualism in these societies. This dualism is not shared by other cul­ tures, for instance the Japanese, where hostility toward BD is open and has prevented the new definition from being legally implemented so far. In point of fact, a law allowing organ transplantation was promulgated in 1997, but it did not explicitly accept BD as a new definition of death: it simply allowed organs to be retrieved from individuals who fulfill the clinical criteria of BD and whose family does not object to this practice. Even today in Japan, despite a national framework of welldeveloped, Western-style medicine, the practice of organ transplantation is rare. BD met strong opposition from some religious sources, for instance from Orthodox Judaism, whose strenuous battle against it led to the implementation of a law (in the state of New Jersey) recognizing the right to con­ scientious objection for those not accepting the new definition. During the 1990s, some scholars, who formerly were in favor of BD or even NCD, spoke in favor of a return to the traditional definition. For instance, Singer argued that it would have been better to recognize the fact that behind the proposal of BD there was not a true definition problem, but rather a moral problem (what are our duties with regard to the individual in irreversible coma? What is licit to do to this individual?). The Committee decided to solve these moral problems stemming from a new definition of death, while it would have been better to face the moral substance of the question and recognize that, when life is so severely diminished as in the so-called brain-dead, the respect we owe to them is not incompa­ tible with a decision to withdraw life support or to retrieve organs from them for transplantation. The Harvard Committee, Singer said, was not prepared to propose such a solution, because this would have been

tantamount to giving up the traditional sanctity-of-life doctrine. In this sense, the strategy chosen by the Committee had some analogies with the strategy chosen, many years later, by the Warnock Committee on the moral status of the embryo. The distinction between the pre-embryo and the embryo stage aimed at solving a substantial moral problem (what is it licit to do to the embryo?) by means of a redefinition, allowing some interventions at the preembryo stage that are not permissible at the following stage. According to Singer, the Harvard proposal was widely accepted because of its usefulness: it did not harm brain-dead individuals, it benefited those on a wait­ ing list for organ transplantation, and, above all, it prevented the charge of passive euthanasia being addressed to doctors who were willing to withdraw life support treatments from these patients. More recently, some other scholars lined up with Singer’s position. Among them, Ralph Stoecker believes that the major mistake of the paper consisted in having implicitly accepted what he calls the ‘‘fundamental assumption about death,’’ that is the idea that the morally appropriate behavior with regard to dying persons can be logically derived by their ontological status. This means that decisions such as withdrawing all medical and nursing care or retrieving organs for transplantation can be made only after death. However, no such inference is warranted and it would have been wiser to directly tackle the moral approach to dying people and to ask when medical care can be withdrawn and when organs can be harvested.

BD as a Biopolitical Event The concept of biopolitics, a construct increasingly dis­ cussed in bioethical debates recently and for which we are indebted to Foucault, indicates the growing involvement of the natural life of man in the mechanisms of political power. Foucault opposed the traditional model of politi­ cal sovereignty, based on the power of life and death of the sovereign on his subjects (in some way analogous to the vitae necisque potestas of the Roman pater familias) and a new model, appeared during the seventeenth and eight­ eenth centuries, centered on the promotion of life, both at the societal level (through measures such as sanitation, control of environmental risks, welfare systems, commu­ nity medicine) and at the level of the individual bodies (medical services, prevention, control of risk factors). From this point of view, the move of the Harvard Committee stating no less than a new definition of death can be seen as a biopolitical move. Reading the Harvard paper after 40 years is a very instructive experience: one is struck by the transparence, even by the naı¨vete´ of motivations and at the same time by the attentive con­ sideration of the interests at stake.

Brain Death

After Foucault many philosophers such as Agamben used the concepts of biopolitics and biopower in another sense. Agamben rediscovered an old form of punishment of the Roman archaic law, with the individual who declared homo sacer being in some way excluded from the protection of the law: anyone had the power to kill him without violating the law, but at the same time he could not been sacrificed. According to this philosopher, the biopolitical intervention of the State reveals the fun­ damental structure of power: the exclusion of natural life (which he calls bare life) from society. The more obvious example of modern biopolitics would be the concentra­ tion camp, but Agamben considers that brain-dead people are another instance of this power: the power to declare as dead people who are still alive. This view is provocative but counterintuitive: at least in the latter case, the aim of this declaration is certainly not to exclude nor to harm anyone, but on the contrary to benefit a severely ill person.

Why Was the Harvard Proposal So Successful? One can think of many reasons for that the success of the Harvard proposal: the authority of Harvard University and the members of the Committee, its careful considera­ tion of the interests at stake and its clever strategy aimed to preempting judical and religious opposition and, above all, the need for organs and the strong support of the community for transplantation medicine. Another political reason for this success was probably the support given to BD by pro-life movements in the United States, a seemingly paradoxical support, if one thinks of the opposite stance of pro-life movements in other countries. There is obviously one sense in which a brain-dead individual (with a beating heart) is still alive and foregoing life-support treatments may seem to be an anti-life move. Probably the main reason of the endorse­ ment by U.S. movements was their hope of relieving public pressure for euthanasia, as some of them openly recognized. However, one major reason for this success may have been the far-sightedness of the Committee, that is, its capacity to accept the revolutionary challenge to old ideas raised by the reversibility of traditional, cardiac death by modern resuscitation techniques and to work out a novel conceptual response.

Recent Developments: Retrieving Organs from Non-heart-beating Donors During the 1990s, in order to increase the organ supply, a new practice was introduced, the so-called Pittsburgh Protocol, or non-heart-beating organ donation (NHBD).

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In NHBD protocols, patients with conditions such as severe brain injury (but not yet brain dead) or end-stage musculoskeletal disease and severe spinal cord injury (and waiving ventilation) are removed from life support. After cardiac arrest ensues, a period of time is allowed to pass, usually 5 min (but in some protocols only 2 min). After that time period, it is believed that spontaneous recovery of the heart beat is impossible, so the patients are declared dead by cardiac criteria and organ procurement surgery may commence. One of the many problems with NHBD is the fact that these donors fulfill the criteria for cardiac death, but their death is secondary to the deliberate with­ drawal of life support (ventilation) and necessarily implies withholding cardiac resuscitation. Moreover, they are not yet brain dead at the moment when their organs are harvested. Shortly after the introduction of the Pittsburgh Protocol, the social scientist Rene´e Fox argued that the practice was ‘‘an ignoble form of cannibalism.’’ She objected to a procedure of controlled death and opposed any pharmacological support for dying organs that is not designed to benefit the donor, but only uses the donor in a strictly utilitarian way for the benefit of another person. Verheijde, Rady, and McGregor note that declaring such donors dead is a fiction that ignores the possibility of autoresuscitation as well as the fact that the brains of these patients are not truly dead. They call for a change in current organ donation policy that would eliminate the dead donor rule, allow NHBD, but only in the context of potential donors and if their families receive sufficient information to make truly informed consent to the pro­ cedure. Since their proposed policy admits that such donors are not dead, it does not involve the deception of declaring them dead after a limited period of cardiac arrest. The public should know that it is the process of organ donation that results in their loved one’s death and that heparin, phentolamine (used to prevent clotting and maintain perfusion), and other drugs designed to prevent organ damage are not for the benefit of the donor. If a person or family member desires to give consent for organ donation in these circumstances, that person will realize what he or she is authorizing.

The Present Status of the Debate on the Definition of Death What is the present status of the question? As already stated, no clear-cut concept of death existed in the past and many doubts lingered as to achieving a definition during the last three centuries. At the very moment when a new technique (i.e., EKG) was introduced into clinical practice and the demonstra­ tion of cardiac arrest became certain beyond any doubt, further technical advances (i.e., cardiopulmonary

330 Brain Death

resuscitation) showed that cardiac arrest, once consid­ ered as the central sign of death, no longer was a valid criterion, since it had become reversible, at least in some cases. Moreover, the introduction of mechanical ventila­ tion allowed patients with severe brain damage to survive, unable to breathe spontaneously and uncon­ sciously. This condition was suggested by the Harvard Committee in 1968 as an alternative criterion of death. The reflection since then provoked a refinement of thinking and different possible ways to conceptualize BD emerged: BSD, WBD, and NCD. Each of them has problems, either of internal consistency or empirical ascertainment. A very recent paper of the President’s Council on Bioethics (December 2008) tackles these difficulties and offers a novel defense of the current neurological standard for declaring death. The argument is that the patient with WBD (renamed in this paper total brain failure) is no longer able to carry out ‘‘the fundamental work of a living organism,’’ i.e., he or she ‘‘has lost – and lost irreversibly – a fundamental openness to the surrounding environment as well as the capacity and drive to act on this environ­ ment on his or her own behalf.’’ This argument is rather obscure and seems to have a scent of vitalism. Summarizing, today we are confronted with the fact that we have been granted, by technological advances, very powerful means to alter the dying process: some­ times we are able to reverse it fully and rescue the patient to a dignified life. More often, we provoke a fragmentation of death or more exactly of the dying process, in which some turning points or thresholds surface, not regularly present in each case. Since, for practical motives, society needs to consider death a punctual event, it has to choose which threshold best fits being equated with the moment of death. Let us to briefly summarize what these thresholds are: 1. Coma: a profound state of unconsciousness with eyes closed. A comatose person cannot be awakened, fails to respond normally to pain or light, does not have sleep–wake cycles, and does not take voluntary actions. In past times, coma was a very reliable prognostic criterion of death, whereas now it can be either a stage preceding death itself, when the brain damage is massive, or a transient state before partial or full recovery. 2. Sometimes, when the brain damage is severe, patients begin to open their eyes, usually 2 or 3 weeks after the cerebral insult, and seem awake, but unaware of their environment. This is VS: the condition of patients with severe brain damage in whom coma has progressed to a state of wakefulness without detectable awareness. VS, in turn, can be a transient state toward a full awakening, but sometimes becomes chronic: we speak of PVS if VS lasts longer than 1 month and of permanent vegetative state if we are able to forecast irreversibility.

3. Irreversible coma or BD: the clinical condition of patients with massive damage of the brain leading to the irreversible cessation of all (or most) brain functions. Even if does not coincide, as we saw, with the death of organism as a whole (this happens only after cardiac arrest), cer­ tainly is a crucial point of no return. 4. Cardiac arrest, the traditional death. To these one could add a last threshold: the temporal threshold of viability of certain organs and tissues, beneath which organs and tissues can be successfully transplanted even after the heart has stopped. The subsequent step is to establish what our duties are toward patients at the different thresholds. Patients in coma, when prognosis is uncertain, deserve full, aggressive treatments in order to allow a possible recovery. In the beginnings of intensive care, full treatment was regularly given to each patient, but now, at least when reliable prognostic indicators exist, it is considered ethically preferable to withhold or to withdraw life-sustaining treatments when a very poor outcome (death or SV) can be forecasted. Full treatment is mandatory in SV patients if recovery is deemed possible; on the contrary, when a prognosis of a permanent vegetative state is made, the problem of with­ drawing artificial nutrition and hydration may arise, especially when there is an advance directive in this direction. When the BD criteria are fulfilled, there is a wide consensus upon the morality of withdrawal of life-sustain­ ing treatments and of organ retrieval (with previous consent), even if BD is not fully equated with death. Some scholars such as Singer, Truog and myself believe that the best threshold to be considered as the moment of death is the traditional, cardiac death, because it is least charged with conceptual problems and is the easiest to understand by the general public. At the same time, we think that when brain death criteria are fulfilled, intensive care may be stopped and organs may be harvested if the patient previously made an appropriate advance directive or at least did not declare himself contrary to organ donation. However, this position implies the violation of the classical dead donor rule, certainly a momentous societal move, but probably an opportune one in the changed context of modern medicine.

See also: Euthanasia (Physician-Assisted Suicide); Life, Concept of; Organ Donation and Transplantation.

Further Reading Agamben G (1995) Homo sacer. Il potere sovrano e la nuda vita, Torino: Einaudi. Ad hoc Committee of the Harvard Medical School (1968) A definition of irreversible coma. Journal of the American Medical Association 205: 85–88.

Brain Death Bichat X (1800) Recherches physiologiques sur la vie et sur la mort, Paris: Brosson, Paris. Defanti CA (2007) Soglie. Medicina e fine della vita, Torino: Bollati Boringhieri. Foucault M (1963) Naissance de la Clinique. Paris: Presses Universitaires de France. Foucault M (1997) Il faut defender la socie´te´. Cours au Colle`ge de France 1975-76, Paris: Gallimard. Fox RC (1993) An ignoble form of cannibalism: Reflections on the Pittsburgh Protocol for procuring organs from non-heart-beating cadavers. Kennedy Institute of Ethics Journal 3: 231–239. Jonas H (1974) Against the stream. Comments on the definition and redefinition of death. In: Philosophical Essays. From Ancient Creed to Technological Man. Englewood Cliffs: Prentice-Hall. Me´nuret de Chambaud JJ (1765) Mort (me´decine). In: Diderot and D’Alembert. Encyclope´die. Mollaret P and Goulon M (1959) Le coma de´passe´. Me´morie pre´liminaire. Revue Neurologique 101: 3–15. Pallis C (1983) The ABC of brainstem death. Prognostic significance of a dead brain stem. British Medical Journal 286: 123–124. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research (1981) Defining Death, Washington, D.C. President’s Council on Bioethics (2008) Controversies in the Determination of Death. Singer P (1994) Rethinking Life and Death. New York: St. Martin’s Press. Stoecker R (1999) Der Hirntod. Ein medizinischethisches Problem und seine moralphilosophische Transformation. Freiburg: Alber. Truog R (2007) Brain death. Two flawed to endure, to engrained to abandon. Journal of Law and Medical Ethics 35: 273–281.

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Verheijde JL, Rady MY, and McGregor J (2007) Recovery of transplantable organs after cardiac or circulatory death: Transforming the paradigm for the ethics of organ donation. Philosophy, Ethics and Humanities in Medicine 2: 8.

Biographical Sketch Carlo Alberto Defanti is physician board certified in neurology and psychiatry. He is a former director of the Neurology Department, of the Ospedale Niguarda Ca’ Granda (Milan), and is presently director of the Alzheimer Center, Gazzaniga BG (Italy). From 1984–87 and 1990–93 he was a member of the Executive Committee of the Italian Society of Neurology. From 1987–90 he was Deputy President of the Italian Society of Neurology. Since 1989 Dr. Defanti has been Founder, coordi­ nator, and presently member, of the Bioethical Commission of the Italian Society of Neurology. He is also a member of the Editorial Board of the journal Bioetica. Rivista interdisciplinare. Dr. Defanti is author of approximately 100 scientific papers (neurology) and 50 papers on bioethical topics, and of two books on the problem of brain death: Vivo o Morto? (Alive or Dead? ) (Zadig publishing, Milan 1999) and Soglie (Thresholds) (Bollati Boringhieri Publishers, Torino 2007).

Broadcast Journalism M Coffey, Australian Broadcasting Corporation

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, volume 1, pp 377–383, ª 1998, Elsevier Inc.

Glossary Broadcast journalism News and information gathering and dissemination on radio and television. Cable television Television programming received in the household via optic fiber cable, usually on a userpays basis. Code of ethics A statement of the values ascribed to by members of a profession. Internet A global network of computers linked through telephone lines and host computers. Organizational code of ethics A statement of values developed for and by members (employers and employees) of an organization such as a corporation or government department.

Broadcast journalism, like any other kind of journalism, aims to disseminate information to public audiences. Technological innovation means that this information, whether in the form of news, analysis, or opinion, may reach us via radio or television, cable or satellite, or by the (pen)ultimate broadcast medium, the Internet. On the Internet, print journalism is broadcast journalism and vice versa. This fortuitous fusion brings home the fact that ethical considerations with respect to print and broadcast journalism are fundamentally the same. We ask of both that they be truthful, objective, well-informed and accurate, respectful of privacy, and uncompromised by control or influence. Outside of the technical differences and the opportunities these allow, what is distinctive about broad­ cast journalism is the historical context in which it has developed and out of which claims are made on its behalf. It is widely understood that the ethical conduct of journalism is of critical importance to us. Journalism is for most people the principle source of information about the world at large. Broadcast journalism’s potency is derived from its immediacy and its availability to mass audiences. In the case of television, there is the additional impact of visual images. Studies show, for example, that since 1963 Americans have quoted television rather than newspapers as their primary source of ‘most’ of their news. Paradoxically, journalism is a source of information about our private and domestic worlds as we define these

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Pay TV Television programming received usually by cable on a user-pays basis. Public broadcasting Radio and television broadcasting funded by subscription and/or government contribution and based on a principle of public access. Public service broadcasting Radio and television broadcasting funded by government out of taxation revenue or license fees with a charter to provide specified broadcasting services to all citizens. Satellite transmission The sending of radio and television signals via satellite rather than landline or electromagnetic link.

vis-a`-vis the information we hear on radio or television or read in the newspaper. In democratic societies we depend upon journalism not just for information but as a point of engagement with politicians, policies, and issues. Our capacity to act decisively and effectively as citizens or as voters is influenced by how well it serves us. Indeed, nothing less than our individual self-realization as parti­ cipating members of democratic societies is associated with our access to the knowledge and information journalism conveys. Moreover, we are faced with many challenges, local and global. Whether they are to do with the survival of the environment and therefore our species, or the just distribution of economic goods (including information), the sustaining and development of democratic institu­ tions, or the maintaining of stable, respectful relations between different peoples and cultures, our ability to face into these challenges turns upon our access to infor­ mation, its quality, and our capacity to exchange it.

History Broadcast journalism followed the invention of radio, its experimental popularity in the immediate aftermath of World War I, and its established use for public broadcasting from around 1920. The earliest

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developments in the United States, Britain, the USSR, mainland Europe, India, and Japan sketched in an institu­ tional organization of broadcasting which has been seriously challenged only relatively recently. Print journalism has long enjoyed the idea of the liberty of the press insofar as it has meant freedom from licensing. However, from its early days broadcasting became subject to regulation over and above the restrictions of relevant civil laws such as those relating to defamation, contempt of court, blasphemous or obscene publications, and trespass. In the beginning, regulation was deemed necessary because of both the shortage of available spectrum and the perceived power of the radio broadcasting medium. Governments regulated to ensure a public service dimen­ sion to broadcasters’ activities and varying kinds of accountability. Two major kinds of regulatory frameworks and institutional organization developed, exemplified by the broadcasting history of the United States and Britain. Commercial Model On the one hand, in the United States, commercial devel­ opment went on apace when advertisers realized radio’s promise as an advertising medium. Commercial radio stations burgeoned in the early 1920s. The potential for network arrangements was recognized at a very early point with the establishment in 1926 of the first (New York-based) commercial radio network. And the potential for commercial radio mayhem was countered with federal legislation. As early as 1927 the U.S. Congress passed a Radio Act which set out to inhibit monopoly – with respect to the production of radio equipment and the ownership of radio stations – and to control the allocation of radio wavelengths. The outcome of this approach was the development of four major commercial networks dependent upon advertising revenue and the securing of wavelength for educational radio broadcasting. Television broadcasting in the United States began similarly as a commercial entertainment and informa­ tion-oriented venture in 1939. War curtailed its commercial development and it was not until 1952 that the Federal Communications Commission authorized 242 channels for educational purposes. In 1962 the Education Television Facilities Act provided government funds to build new stations. By the mid-1960s a 100-station-strong noncommercial, subscriber-based, national network had taken shape under the impetus of finance from the Ford Foundation. The Public Broadcasting act of 1967 pro­ vided a mechanism for government funding of broadcasting via the establishment of a private corpora­ tion which would distribute government funds (Corporation for Public Broadcasting). Its rationale was that there were areas of broadcasting delivery which were not supported by advertising and were unlikely to be. In 1970 the already integrated network began operation as

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the Public Broadcasting Service (PBS) and PBS now parallels National Public Radio. Almost from the outset in the United States, the notion of non-commercially funded broadcast journalism has created controversy. (An early PBS cause ce´le`bre was the proposed Ford Foundation financed news center in 1971.) Broadcast journalism, the argument goes, requires the democratic restraints of the free market. If taxpayers’ money is to be provided for public broadcasting then there must be legislative enforcement of objectivity, bal­ ance, and accountability. Strict fairness regulations must be met. The 1992 Public Telecommunications Act was an outcome of this argument: it requires the Corporation for Public Broadcasting to enforce the balance provisions of the Public Broadcasting Act. Subsequent controversies (in 1996 over federal funding, for example) have revealed continuing suspicion of government-funded broadcasting balanced by support from those their opponents describe as leftists, liberals, or Democrats. On the subject of regulation broadly, there is not such a neat divide between proponents and opponents. While, for example, critics of the PBS demanded content regula­ tion to counter perceived political partisanship and ambitions for PBS-led social change, some liberals sup­ port structural regulation to build rules and constraints into the structure and organization of the media taken as a whole. Their argument is that commercial media repre­ sent power and that private power may threaten liberty even as state power does. It may lead to the dispropor­ tionate representation of certain views at the expense of diversity, to inappropriate influence on public policy, or to the manipulation of the media to achieve the ends of private owners or corporations. Public Service Model In Britain, broadcast journalism has followed a different evolutionary path. While early radio initiatives were of a commercial nature, the perceived problems of ‘commer­ cialization’ and the need for order and control exemplified by the clamorous airwaves of the United States soon led to the view that broadcasting was best administered as a public service utility with centralized control. (Already the administration of other resources such as forestry, water, and electricity had been similarly structured.) In 1925 the British Broadcasting Corporation (BBC) was established as a monopoly, ultimately accoun­ table to Parliament but presided over by a Board of Governors enjoined as trustees of the public interest. Broadcast journalism began on the BBC in 1926 in the print news vacuum created by the General Strike. Since broadcasting bans were applied to the leader of the oppo­ sition and representatives of organized labor, the BBC was obliged immediately to canvas issues such as its relation­ ship to government, its notion of public service, and its

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means of estimating public interest. It resolved these issues by accepting the bans and reporting statements by both strikers and strike breakers. It developed a modus vivendi by which it censored itself along government suggested lines in order to forestall the imposition of government regulation. During World War II, when there was an inevitable identification of the common interest with the interests of government, there was even greater complexity in the relationship between the BBC and the British Government. Nevertheless, by the end of the war the BBC’s authority as a source of news (and as a cultural institution) was firmly established. For one thing, during the war the BBC had never lied. (That does not mean it was not free of bias.) It was a public service monopoly, committed to the common interest and accountable to Parliament. As James Curran and Jean Seaton have pointed out, that meant that if government were concerned with limiting the amount and kind of information broadcast, the main pressure within the Corporation was to tell people as much as possible. Until the 1980s broadcast journalism developed in Britain within a framework of reiterated public service notions. These included the idea that broadcasting ser­ vices should be accountable and made available to everyone, and that programs should be of high quality and wide variety. Even the introduction of commercial television in 1954 occurred under the aegis of these prin­ ciples, and the new Independent Television Authority was established to regulate commercial stations (ITV, independent television) virtually in the image of the BBC. More recently there has been a reworking of the public service ideal which would detach it from the notion of a publicly funded utility. In this neoliberal view, corporate media organizations are well placed to serve the public. As Ken Cowley, Rupert Murdoch’s sometime chief executive in Australia, remarked, ‘‘We take the view, as simple as it is and as corny as it sounds, that what is good for your country is good for your business and what is good for your business is good for the paper, its readers and our employers.’’ Another kind of reworking of the public service ideal would privatize elements of public service broadcasting organizations under some kind of regulatory oversight such as a Public Broadcasting Council. There are proposals also from the left based on a critique of existing public service broadcasting as expressive of a narrow range of perspectives. These proposals call, for example, for more representative membership of broadcasting authorities and for structures and guidelines which make broadcasters more independent of government and encourage greater ideolo­ gical range and cultural diversity in program content. Nevertheless, the paradigmatic ideas governing the broadcasting debate remain those derived from its develop­ ment history. On the one hand there is the notion that broadcasting is a public good and that to be a broadcaster

is to take on a public service while conscious of one’s particular responsibilities toward innovation, pluralism, and quality. On the other hand, there is the idea that broad­ casting belongs to the commercial arena where market forces (and minimal regulation) will ensure that the require­ ments of audiences, and advertisers, are met, and where it will flourish under the creative stimulus of the market. Here the broadcast journalist is understood to be a profes­ sional, with skills and marketable qualities appropriate to the profession. It is fair to say that this idea (or variations upon it) has been in the ascendant since the 1980s and has already influenced the reshaping of major broadcasting organizations (such as the BBC, the Canadian Broadcasting Corporation, the Australian Broadcasting Corporation, the New Zealand Broadcasting Corporation) and the devel­ opment of communications policy in response to new technology. It has also influenced the recreation of broad­ casting organizations in the former Soviet bloc.

Recent Technological Developments Satellite Transmission The rise of free market ideology is an important element in the rethinking of communications policy as it affects broadcasting, but the crucial factor has been the scope and speed of technological innovation. It has made redundant, for example, the pragmatic argument for regulation in the first instance, that there would be cacophony on the air­ waves given the limited spectrum available. Now that satellite transmission has replaced electromagnetic sig­ nals, not only is there no comparable problem with competition, it may seem there are no boundaries either. Western-based media organizations such as Rupert Murdoch’s Star TV can broadcast to Pakistan, India, or Iran. By 1994 Star TV was reaching in its target area an estimated 54 million households with receiving dishes. Such broadcasts circumvent any easily applicable state controls since they go direct to their audiences in their homes. (Either governments ban receiving dishes as in Iran or they exert political and economic pressure as with China’s acceded-to demand that Star TV stop beam­ ing BBC news bulletins into Chinese households.) Satellite transmission has also raised questions about diversity. While it proffers a huge increase in viewer choice, its dominance by transnational corporations may be a guarantee only of (Western) cultural hegemony. Boundaries of another sort have been abolished by the evolution of news coverage as a result of satellite trans­ mission working in conjunction with cable networks in agency arrangements. Journalists with the American Cable News Network (CNN) can be anywhere, anytime, to bring to viewers anywhere in the world via local cable deliverers or major national commercial or public service networks the latest air strike, food crisis, or insurrection.

Broadcast Journalism

Viewers everywhere hear the news stories told by Americans. Moreover, CNN’s coverage of the 1991 UN-sponsored Desert Storm war against Iraq provided instantaneous images of war which cast viewers in their homes as witnesses to missile attacks and their aftermath. In these circumstances viewers may believe there is yet another kind of boundary crossing going on: that between news and information production/consumption and journalis­ tic/viewer complicity and voyeurism. On the other hand, viewers able to observe the death of 400 civilians in the Al-Ameriya bunker in Baghdad may have experienced the contours of citizenship expanding: it was, after all, in their names that the war was prosecuted. Why should they not see the bombing, and own up to it? Cable Television The development of cable television invites comment on the hopes held for technological innovation as a means for democratizing broadcast journalism. It has been a form of television slower to develop outside the United States at least in part because of the infrastructure investment required to establish the optic fiber cables to individual households. In Australia, for example, only existing very large media companies have been able to enter the cable market, so that rather than introducing diversity the advent of cable has only confirmed Australia’s existing media oligopoly. In the United States public access cable television (in a proportion of one in five cable networks) provides an enormous amount of original community programming of varying quality. Some of it may reflect less diversity than appeal to the First Amendment (which guarantees freedom of speech) as the justification for broadcasts which would elsewhere be banned (for racial vilification, for example). Moreover, the development of cable has meant that abandonment of free-to-air broadcasting as the only model. Cable television has been for the most part a commercial venture and access depends on one’s capacity to pay. Hence, ‘pay TV.’ However, there remains hopefulness about technol­ ogy’s democratizing potential. John Keane envisions new digital technologies as contributing to a plurality of com­ munications media in a more democratic order where neither the state nor commercial markets exercise control, but rather publicly-funded, non-profit and legally guar­ anteed media institutions of civil society. Certainly, one can point to the use of radio and television among people of indigenous cultures (communities of interest) to demonstrate that the new technologies may indeed offer emancipatory possibilities. Among some indigenous Australian and Canadian communities local radio and television broadcasting is a means of strengthening com­ munity cultures and of challenging the powerful

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incursions of satellite transmission and other Western broadcasts. Here the means of communication belong, in Keane’s terms, to the indigenous public at large.

Narrowcasting The next round of technological innovation is focusing on ‘narrowcasting’ and ‘audience targeting’ where informa­ tion will be offered in response to the individual’s choice. Here again the question of diversity arises. It is clear that the quantity of information available to any individual will be enormous and there will be a proliferation of access routes to information. But with existing commer­ cial media organizations positioning themselves to take advantage of these innovations, there are questions to be asked about what diversity will mean in the age of nar­ rowcasting and self-selected news and information.

The Internet The Internet is a communications medium based on a global network of computers linked through telephone lines and host computers. It is capable of transmitting text, images, and sound. Millions of people are linked by the Internet, but unlike conventional media the Internet offers two-way communication, an absence of regulation, and freedom from commercial ownership. However, access to the Internet is dependent on the user’s capacity to pay (for equipment, server provider, power, etc.). The Internet is considered here because of its links to broadcasting: not only do forms of broadcasting – along with other activities – occur on the Net, but major broad­ casting organizations have created Internet versions of themselves and make their program material available there. Broadcast journalists use the Internet as an infor­ mation resource. It is possible, for example, to download texts of Australian Broadcasting Corporation programs within hours of their broadcast, and Radio Telefis Eireann invites the downloading of voice and text news stories as a type of broadcast agency service. In many ways the Internet is emblematic of broad­ casting and the changes being induced by political and technological change. It carries a phenomenal amount of information without any organizing hierarchy of knowl­ edge other than ‘user selects.’ It is the subject of arguments about regulation with the balance on the side of open access and freedom from censorship. (However, govern­ ments, for example, through the OECD, are investigating forms of regulation primarily to limit access.) Its utility depends on the sharpness of the user’s purpose and her competence with the search engines. Its character reflects the overwhelming contribution from the United States. And it too is under pressure from large corporations attempting to take control.

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Convergence and Concentration With the dominance by large corporations of the world’s supply and delivery of information (and entertainment), many concerns about broadcast journalism have come to be expressed in the terms convergence and concentration. The idea of convergence is best illustrated in the way the Internet collapses the boundaries between the distinc­ tive identities of newspaper, radio, and television. A graphic example of convergence in the making is pro­ vided by the Sankei newspaper in Japan. Its new delivery system, a small box the size of an electronic organizer, may be plugged into a television at night so that each morning it downloads perhaps a thousand news articles and pictures. It is possible to scroll through these stories en route to work and have access to far more information than that provided by a newspaper. A new version will conceivably have audio and video, and the user will be able to select and edit what he wishes to hear. Convergence obviously informs the increasing con­ centration of media ownership and the spread of media owner activities. Media corporations are involved in tele­ communications, information and entertainment (sport and film), computing, and education in addition to radio, television, and newspaper production. Needless to say, the key question here has to do with diversity: what is it and how may it be achieved?

The Broadcast Journalist It is against this background that we must consider the professional role and obligations of the broadcast journalist. To begin with, such persons will be most likely employed by a profit-seeking corporation and their information-gathering activities will have economic worth. They will have available impressive technological resources, thanks to which they may access information previously unavailable. He or she may be at considerable cultural and social distance from the audience: think of the CNN Gulf War reporter being heard not merely at home – in Wisconsin? – but also in Geelong, Australia, or Colombo, Sri Lanka. A broadcast journalist will also occupy an ambivalent position in society. Public estimation of journalists is low but rhetoric from both the left and the right casts the journalist in a role central to the maintenance of demo­ cratic societies. The Broadcast Journalist as Professional Employee Journalism has come to be regarded as a profession, if different in status from professions such as law or

medicine. What gives journalism its professional status, along with law, medicine, teaching, and nursing, is its relationship to a code of ethics. Its aims and its achieve­ ments are judged according to ethical ideas such as truthfulness, accuracy, and objectivity. More and more these ideas are being articulated in formal codes of ethics, the better of which address the peculiar technological context of broadcast journalism. Implicit in the traditional idea of a professional is a notion of autonomy: this person, whose ethical commit­ ments are held in common with the rest of the profession, nevertheless acts independently to fulfill these commit­ ments. However, most broadcast journalists are employees whose autonomy is limited by the require­ ments and interests of their employer. Very often this is a large corporation whose interests will not always be best expressed in the journalist’s code of ethics: corporations are explicitly about making money rather than about ‘telling the truth.’ The fact that broadcast journalists are employees of a contracting number of employers, or alternatively that they are employees under threat when they work for ‘downsizing’ public service broadcasting organizations, may be assumed to have some effect on journalistic cul­ ture. Lack of alternative employment opportunities and competition may foster self-censorship and a less than vigorous journalistic enterprise. Of course, the tension between a journalist’s profes­ sional values and an employer’s interests may be equally strained when the employer is a public service broad­ casting organization. Journalists with both the BBC and the RTE are compromised by their respective institu­ tions’ adherence to government prohibition on the broadcast of interviews with members of the Irish Republication Army, a ban which is retrospective since it applies to archival material as well. Journalists with the ABC (Australian Broadcasting Corporation) found editorial decision making compromised by their employ­ er’s ratings-driven essay into ‘infotainment’ television programming. (The issue became a public scandal in 1994–95 and led to an inquiry and the establishment of whistle-blowing procedures within the organization.) An increasing number of organizations are developing organizational codes of practice so that some journalists will find themselves referring to both professional and organizational codes. In Australia, for example, broadcast­ ing organizations are required to notify the Australian Broadcasting Authority of their codes of practice as a first step in a series of measures underwriting accountability. There is considerable discussion about the merits of professional codes of ethics versus organizational codes. As media organizations grow in size, the trend toward deregulation accelerates, and public service broadcasting is attenuated, professional journalists’ organizations will be less well placed to inculcate and enforce values

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appropriate to broadcast journalism. It may be that, in this age of concentration of media ownership, media selfregulation through organizational codes will have a more productive impact on the quality of broadcast jour­ nalism. Such codes can at least broach at the level of the organization issues such as checkbook journalism or the improper influence of advertising or commercial consid­ eration since they embrace those who profit from and control media activities. They may also contribute to media self-regulation across national boundaries since the nature of media organizations is increasingly global rather than local. However, a professional code of ethics contributes toward a journalist’s sense of independence no matter how comparatively weak her position. It is a reminder to all of us that there are interests and aspirations outside those of the market and corporate organizations. The Broadcast Journalist and Technology Broadcast journalists, like many other professionals, find ethical challenges in the capacities technology allows them. CNN’s role in the Gulf War raised a series of such ethical questions as already mentioned. One of them had to do with what might be the proper distance from the action for a viewer. On a more day-to-day level, broadcast journalists are able to manipulate pictures and sound for effect; they can record sound and pictures without the knowledge of their subjects, and they are able to access with technology people and areas previously inaccessible. The last two raise the issues of consent and privacy – where should the shifting boundary between what should be public and what should be private lie? Obviously this technology may be used for good purpose, to reveal discrimination, for example. Equally obviously it is often used in breach of commonly accepted ideas about privacy and for reasons which have more to do with entertaining and stimulating audi­ ences than with providing information. Various jurisdictions have felt the need to strengthen laws relating to consent and privacy at least partly in response to perceived problems with the media. It is nevertheless true that television has created a culture that is less certain about the distinction between public and private and the import of what were once private differences. Alain Ehrenberg writes that tabloid

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television reassures as it shows that everyone is different and there are no longer any fixed norms that we are to conform to. It is a television of tolerance and what is central is that people accept the need to be true to them­ selves and be committed to talking about this to the television audience. Hence the kind of infotainment tele­ vision where people reveal their intimate lives and the prevailing view among certain broadcast journalists that privacy is a middle-class conceit. The Broadcast Journalist and Her Audience Journalism may figure low on the scale of reputable professions but implicit in this estimation is a view of the journalist as powerful. This ambivalence is expressed in media criticism. One such critique has broadcast jour­ nalism giving us information that affects our perceptions; if it is distorted, and it often is, we will find as citizens that our capacity for choice has been corrupted. Broadcast journalism’s power to corrupt the culture is a common theme in media criticism. It is possible that media critics, audiences, and broad­ cast journalists themselves overestimate the latter’s power. It is not clear, for example, that television pictures of the Vietnam War were responsible for opposition to the war’s pursuit. Broadcast journalists are not forces in themselves. They are players in complex social and political and economic relationships. It is worth reflecting that so much of the criticism of broadcast journalism in terms of its conduct and ethics is in fact a criticism of modernity itself. See also: Media Ownership; Privacy, Challenges to.

Further Reading Belsey A and Chadwick R (eds.) (1991) Ethical Issues in Journalism and the Media. London: Routledge. Coady M and Bloch S (eds.) (1996) Codes of Ethics and the Professions. Melbourne: Melbourne University Press. Curran J and Seaton J (1991) Power Without Responsibility, 4th edn. London: Routledge. Horowitz D and Jarvik L (1995) Public Broadcasting and the Public Trust. Los Angeles: Center for the Study of Popular Culture. Lichtenberg J (ed.) (1990) Democracy and the Mass Media. Cambridge: Cambridge University Press. Marshall I and Kingsbury D (1996) Media Realities: The News Media and Power in Australian Society. Harlow/New York: Longman. Schultz J (ed.) (1994) Not Just Another Business: Journalists, Citizens and the Media. Sydney: Pluto.

Buddhism D Keown, Goldsmiths College, University of London, London, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Ahimsa The moral principle of non-harming and respect for life. Bodhisattva The moral ideal of Mahayana Buddhism. A person who, motivated by compassion, strives to achieve enlightenment for the sake of all beings. Dharma The natural order or universal law that underpins the operation of the universe in both physical and moral spheres. Mahayana A major movement in the history of Buddhism embracing many schools in a sweeping reinterpretation of fundamental ideals, beliefs, and values. It began shortly before the Christian era and predominates in north Asia.

Introduction Buddhism is a major world religion that was founded in northeast India by Siddhartha Gautama (c. 480–400 BC), a religious teacher who experienced a spiritual awakening at the age of 35 and was thereafter known by the honorific title of Buddha (‘enlightened one’). Buddhism spread rapidly from India to parts of south Asia before the Christian era, and by the early centuries CE it became established in China. Subsequently, it spread into Tibet, Korea, Japan, and Southeast Asia. As it traveled, Buddhism interacted with the indigenous beliefs it encountered, and this gave rise to considerable variation in style among Buddhist schools. Newcomers to Buddhism are often struck by the variety and diversity of its schools and traditions, but at the level of the moral teachings there is arguably much common ground, and it does not seem unreasonable to speak of a common moral core underlying the divergent customs, practices, and teachings of the different schools. This core is composed of the principles and precepts, the values and virtues that were expounded by the Buddha in the fifth century BC and that continue to guide the conduct of approximately 350 million Buddhists throughout the world today. The Buddha appointed no successor and there is no central authority on matters of doctrine and ethics, although the order of monks (sangha) instituted by the Buddha is regarded by most Buddhists as the authorized custodian and interpreter of the Buddha’s teachings. The goal of all Buddhists is enlightenment (nirvana), a state of

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Sangha The Buddhist community, especially those who have been ordained as monks and nuns and who are bound by the Vinaya. Sila (Pali)/shila (Sanskrit) Morality, or a moral precept, for example, as in the Five Precepts; also, the name of the first of the three divisions of the Eightfold Path relating to moral conduct. Tantra A special path that arose in Mahayana Buddhism promising rapid progress to the goal of enlightenment by using special techniques, some of an antinomian character. Vinaya General term referring to monastic law, discipline, custom, and practice.

spiritual and moral perfection that can be attained by any human being who lives in accordance with Buddhist teachings. Buddhism does not believe in a supreme being or creator god, and its precepts and ethical teach­ ings are seen not as divine commands but as rational principles that, if followed, will promote the flourishing or welfare of oneself and others. It may therefore be regarded as a form of eudaimonism, and although it is still too early for there to be a consensus among scholars as to how Buddhism should be classified in terms of Western theories of ethics (and there are some who believe it cannot be), it seems clear that the cultivation of virtues plays an important role.

Dharma The ultimate foundation for Buddhist ethics is Dharma. Dharma has many meanings, but the underlying notion is of a universal law that governs both the physical and the moral order of the universe. Dharma can best be trans­ lated as ‘natural law,’ a term that captures both of its main senses, namely as the principle of order and regularity seen in the behavior of natural phenomena and also the idea of a universal moral law whose requirements have been discovered by enlightened beings such as the Buddha (note that Buddha discovered Dharma, he did not invent it). Every aspect of life is regulated by Dharma – the physical laws that regulate the rising of the sun, the succession of the seasons, and the movement

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of the constellations. Dharma is neither caused by nor under the control of a supreme being, and the gods themselves (Buddhism recognizes a vast pantheon of supernatural beings) are subject to its laws, as was the Buddha. In the moral order, Dharma is manifest in the law of karma, which, as we shall discuss later, governs the way moral deeds affect individuals in present and future lives. Living in accordance with Dharma and implementing its requirements is thought to lead to happiness, fulfillment, and salvation; neglecting or transgressing it is said to lead to endless suffering in the cycle of rebirth (samsara). In his First Sermon, the Buddha was said to have ‘‘turned the wheel of the Dharma’’ and given doctrinal expression to the truth about how things are in reality. It was in this discourse that the Buddha set out the Four Noble Truths, the last of which is the Noble Eightfold Path that leads to nirvana. The Path has three divisions – Morality (sila), Meditation (samadhi), and Insight (pan˜n˜a) – from which it can be seen that morality is both an integral component of the path and a constituent part of the transformed mode of being known as nirvana.

Karma The doctrine of karma is concerned with the ethical implications of Dharma, particularly those relating to the consequences of moral behavior. Karma may be defined as a principle of moral retribution in terms of which good and bad deeds bring about pleasant and unpleasant consequences in the future as well as a trans­ formation in the agent’s present moral status. The remote effects of karmic choices are referred to as the ‘matura­ tion’ (vipaka) or ‘fruit’ (phala) of the karmic act. Performing good and bad deeds is compared to planting seeds that will fruit at a later date. Good karma is often referred to as ‘merit’ (punya) and its opposite, bad karma, as ‘demerit’ (papa). Some Buddhists go to extreme lengths to accumulate merit, for example, by making large dona­ tions to the sangha or funding lavish construction projects for the building of temples and the like. Belief in karma is common to many Indian religions and did not originate with the Buddha. Because it is one of the givens of Indian thought, rarely does the Buddha seek to justify or defend the idea of karma explicitly. However, the notion permeates his teachings and frequent reference is made to it in the early discourses. There, the Buddha reserves a particular censure for those of his contempor­ aries – such as materialists, determinists, and others – who denied the belief that moral acts had consequences (this was known as akiryavada or ‘the doctrine of non-retribu­ tion’). Karma is not the same as determinism, and the doctrine of karma does not claim that everything that happens to a person is determined in advance. Instead, many of the good and bad things that happen in life can

simply be accidents. Karma thus does not determine pre­ cisely what will happen or how anyone will react to what happens.

Ethics in Early Buddhism The primary source for ethics in early Buddhism is the Pali Canon. This consists of three divisions, the most important of which contains the Discourses (sutta) of the Buddha. The second is the Monastic Rule (vinaya), which is a code of behavior for those who have taken monastic vows. The third division, the Scholastic Treatises (abhid­ hamma), contains material of interest for ethics, mainly from a psychological perspective, although its relevance is sometimes disguised by a terse analytical style. In the Discourses, the Buddha’s moral teachings are set out in a clear and straightforward way. The style is a cross between the Christian gospels and the Socratic dialogues, and parables and metaphors are often used to help get the point across. Ethical themes appear repeatedly through­ out the Discourses, although certain Discourses are regarded as particularly significant for their moral con­ tent. The Discourse to Sigala, for example, is of special importance for lay ethics and is often described as ‘a Monastic Rule for householders.’ Another early Discourse, the Discourse on Brahma’s Net, is a compen­ dium of moral precepts, and it may be regarded as the source of the subsequent preceptual codes. Important for its emphasis on the cultivation of a loving attitude is the Discourse on Loving-kindness (Metta Sutta). Precepts There are five main sets of precepts in Buddhism: 1. 2. 3. 4.

The Five Precepts (pancha-sila) The Eight Precepts (atthanga-sila) The Ten Precepts (dasa-sila) The Ten Good Paths of Action (dasa-kusala-kamma­ patha) 5. The Monastic Disciplinary Code (patimokkha) The most popular of these codes is the Five Precepts for laymen. The Five Precepts prohibit (1) killing, (2) steal­ ing, (3) sexual immorality, (4) lying, and (5) taking intoxicants. The nucleus of Buddhist morality may be found in the first four, which are then supplemented by more rigorous precepts according to the status of the practitioner or to suit particular ceremonial occasions. The precept against taking intoxicants, for example, is thought to be particularly applicable to layfolk, and the Eight and Ten precepts, which supplement the basic five with additional restrictions such as on the time when meals may be taken (as well as requiring complete

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abstention from sexual relations), are commonly adopted as additional commitments on holy days (uposatha). The first precept

The first precept prohibits the harming of any living creature. Respect for life is a pan-Indian moral ideal. It was promoted most vigorously by the unorthodox men­ dicant (samana) movements such as Buddhism and Jainism but increasingly influenced the orthodox Brahminical schools. Animal sacrifice, which had played an important part in religious rites from Vedic times, was rejected as cruel and barbaric, and blood sacrifices came increasingly to be replaced by symbolic offerings such as vegetables, fruit, and milk. The principle of non-injury (ahimsa) that underlies the first precept was sometimes taken to extremes. Jain monks, for example, took the greatest precautions against destroying tiny forms of life, such as insects, even unintentionally. By comparison, Buddhist monks were sometimes criticized by the laity for being less rigorous in their respect for life, even though monks carried a strainer with them to make sure they did not destroy small creatures in their drinkingwater, nor did they engage in agriculture because of the inevitable destruction of life caused by plowing the earth. This is due to the fact that unlike Jainism, Buddhism regards the destruction of life as morally wrong only when it is caused intentionally and not just accidentally. Nevertheless, as these examples show, the belief in karma and rebirth has had a profound influence on the Buddhist attitude toward nature and has meant that Buddhists are less ready to draw hard and fast lines between human and other forms of life. Virtues Although the precepts are of great importance in Buddhist morality, there is more to the Buddhist moral life than following rules. Rules must not just be followed, but followed for the right reasons and with the correct motivation. It is here that the role of the virtues becomes important, and Buddhist morality as a whole may be likened to a coin with two faces: On one side are the precepts and on the other the virtues. The precepts, in fact, may be thought of simply as a list of things that a virtuous person will never do. Early sources emphasize the importance of cultivating correct dispositions and habits so that moral conduct is the natural and spontaneous manifestation of internalized and properly integrated beliefs and values rather than simple conformity to external rules. Many formulations of the precepts make this perfectly clear. The precept against taking life, for example, is often supplemented by the phrase, ‘‘Laying aside the club and the sword he dwells compassionate and kind to all living things.’’ Abstention from taking life is therefore the natural result

of a compassionate identification with living things rather than a constraint that is imposed contrary to natural inclination. To arrive at such an integrated state is not easy, and it involves a profound transformation of both an intellectual and a moral kind. To observe the first precept perfectly requires a profound understanding of the meta­ physical relationship between living things coupled with an unswerving disposition of universal benevolence and compassion. Few people are capable of either of these things, but in respecting the precept they habituate them­ selves to the condition of one who is, and in so doing they take a step closer to enlightenment. The virtues, as Aristotle points out, are about what is difficult for people. The task of the virtues is to counteract negative dispositions (or vices) such as pride and self­ ishness. On the principle of ‘Know thine enemy,’ Buddhist scholasticism constructed elaborate lists of vices (kilesa) and defilements (upakilesa), including delu­ sion (moha), heedlessness (pamada), torpor (kosajja), lack of commitment (asaddha), restlessness (uddhacca), anger (kodha), hypocrisy (makkha), envy (macchariya), and many more. All of these things are hazards to the ethicor­ eligious life and lead to behavior that is contrary to the precepts, usually as a result of their egocentric bias, which impairs the ability to make impartial judgments between oneself and others. The lengthy lists of virtues and vices that appear in later literature are extrapolated from a key cluster of three virtues and their opposing vices. The three Buddhist ‘Cardinal Virtues’ are Unselfishness (alobha), Benevolence (adosa), and Understanding (amoha). The first two are moral virtues, and the third is an intellectual virtue. Benevolence means an attitude of goodwill to all living creatures. Unselfishness means the absence of that selfish desire which taints all moral behavior by allocating a privileged status to one’s own needs. Understanding means knowledge of human nature and human good as expressed in basic doctrines such as the Four Noble Truths. These teach that (1) suffering is an inherent part of life (dukkha); (2) suffering is caused by craving (tanha); (3) suffering can have an end (in nirvana); and (4) the way to nirvana is by following the Eightfold Path, a way of life that emphasizes morality (sila), meditation (samadhi), and wisdom (pan˜n˜a). Meditation Meditation is part of the Eightfold Path, and it plays an important role in the cultivation of the virtues. Of parti­ cular importance is a group of four meditational dispositions known as the four Sublime States. The four are Love (metta), Compassion (karuna), Gladness for Others (mudita), and Equanimity (upekkha). Detailed guidance is provided in Buddhist literature as to how these dispositions can be cultivated and deepened. Care

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must be exercised in the early stages, lest they be directed inappropriately and lead to selfish desire rather than being directed without impartiality. In the cultivation of love, for instance, it is recommended not to choose a person of the opposite sex as an object of meditation. Surprisingly, perhaps, the first proper object of affection should be oneself. Far from being narcissistic, this involves the shrewd psychological insight that it is impos­ sible to love others if one does not love oneself. After developing positive feelings for oneself, the disposition is slowly extended in an ever-increasing circle to friends and relations, the local community, and, finally, the world at large. Through this practice, the mind becomes free of anger, hostility, and resentment and other negative traits that are common sources of immoral action. The same method of practice is applied to the second and third Sublime States. Compassion is directed toward all who are experiencing misfortune with the aspiration that their suffering may soon cease, and gladness is direc­ ted toward those in good fortune with the wish that their good fortune should remain and increase. When the first three have been developed, the practice of equanimity can begin. The importance of equanimity is that it ensures that none of the other dispositions are allowed to predo­ minate. There is a danger for the moral life in allowing any disposition, however virtuous in itself, to become dominant. It is sometimes claimed, for example, that as long as one acts with a compassionate motive, no wrong can be done. This is not the mainstream Buddhist view, and the role of equanimity is to ensure that moral judg­ ments are not distorted by an imbalance between dispositions leading to an overemphasis on any one of them. According to the fifth-century CE commentator Buddhaghosa, the four Sublime States should be practiced on the model of a mother with four sons: The first is a baby, the second an invalid, the third in the flush of youth, and the fourth grown up and busy with his own affairs. Her wish is that the first should grow up, that the second should get well, that the third should enjoy the benefits of youth for as long as possible, and towards the fourth – now grown up and independent – she has an attitude of even-minded observation. Nirvana The aim of all Buddhists is to attain nirvana, but there are different schools of thought regarding what nirvana involves. The tradition recognizes two kinds of nirvana: the kind that is attained by a person in the course of his or her lifetime and the kind that is attained by an enligh­ tened person at death. In this discussion, we are concerned only with the former. The tendency has been to understand nirvana primarily in intellectual terms as the gaining of mystical knowledge. Although this is cer­ tainly part of what is involved, it leaves little scope for the

important moral dimension of Buddhism. The Buddha was not just a man of great philosophical insight but also one with a firm commitment to the well-being of others. The greater part of his life, indeed, was selflessly devoted to encouraging others to participate in the noble life envisaged in his teachings. Buddhist doctrine, for all its sophistication, is of little use unless it manifests itself in a life lived rightly. It may be more appropriate, therefore, to understand nirvana as embracing both intellectual and moral ideals. Wisdom and Moral Concern Understood in the way described previously, nirvana as summum bonum is an inclusive final end, and the path that leads to it is nothing other than the gradual cultiva­ tion and manifestation of those virtues and qualities that comprise the end. From the description of the content of nirvana just provided, it is not difficult to see that two basic Buddhist values are wisdom and moral conduct. Human perfection is defined in an early text, the Sonadanda Sutta, as the possession of these two, which are the necessary and sufficient conditions for human fulfillment. They go hand-in-hand together; in the ima­ gery of the text they are like two hands that wash one another. Wisdom (pan˜n˜a) purifies moral concern (sila), and moral concern purifies wisdom. Either by itself is incomplete. A person who possesses one without the other is imbalanced and cannot be said to have attained nirvana. It is clear that the path to nirvana, the Noble Eightfold Path, includes both these dimensions of human good under its categories of Morality (Sila) and Wisdom (Pan˜n˜a). The Path also includes a third category, Meditation (Samadhi), and we have noted the importance of meditation in the cultivation of moral virtue. It may also be noted that meditation has the additional function of developing insight into important truths, such as the Noble Truths of suffering and its origins. What the Eightfold Path provides, then, is an inclusive program for human development that leads to the full flowering of human potential in the state of nirvana, a state in which a person both fully understands the nature of the human condition and its potential for good and is committed to assisting others to attain the same state of perfection. In terms of this understanding of nirvana, there is no sense in which an enlightened being ‘transcends’ moral values or passes ‘beyond good and evil’ as has sometimes been thought. It can be seen from the Buddha’s conduct that he personally did no such thing, nor did he anywhere express the view that it would be appropriate for others to do so. The only sense in which the Buddha passed beyond good and evil was in not having to pause to deliberate between them: He instinctively knew the right course of action. The much misunderstood ‘Parable of the Raft’ in

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no way supports the construction commonly put upon it, namely that morality is of a temporary and provisional nature, a ‘means to an end,’ and something ultimately to be discarded like a raft after one has crossed over the stream. If the Buddhist understanding of nirvana incorpo­ rates moral perfection in the way suggested previously, then moral conduct is integral to the final goal. Without moral conduct, there cannot be nirvana.

could claim increased latitude and flexibility based on their recognition of the importance of compassion. The pressure to bend or suspend the rules in the interests of compassion results in certain texts establishing new codes of conduct for bodhisattvas that sometimes allow the precepts to be broken. In some of these, such as the Upaya-kaushalya-sutra (c. first century BC), even killing is apparently regarded as justifiable when committed by a bodhisattva who seeks to prevent someone committing a heinous crime and suffering karmic retribution in hell.

Mahayana Morality The Mahayana was a broad reform movement that began shortly before the Christian era and attempted to correct what it saw as shortcomings in Buddhist practice at the time. In the Mahayana, the bodhisattva who devotes him­ self or herself to the service of others becomes the new paradigm for religious practice, as opposed to the arahant, or saint, in the early tradition, who is criticized for leading a cloistered life devoted to the self-interested pursuit of liberation. Schools that embraced the earlier ideal are henceforth referred to disparagingly as the Hinayana (‘Small Vehicle’), or the Shravakayana (‘Vehicle of the Hearers’), denoting those disciples who lived at the time of the Buddha and heard his teachings personally. In the Mahayana, great emphasis is placed on the twin values of compassion (karuna) and insight (prajn˜a), and the bodhisattva practices six special virtues known as the ‘Six Perfections’ (paramita). These are Generosity (dana), Morality (shila), Patience (kshanti), Perseverance (virya), Meditation (samadhi), and Insight (prajn˜a). It can be seen that three of these (shila, samadhi, and prajn˜a) coincide with the three divisions of the Eightfold Path of early Buddhism, demonstrating both continuity and change in the evolving moral tradition. The Mahayana did not reject the ethical teachings of early Buddhism but subsumed them under an expanded framework of its own, claiming that the early followers were morally deficient in lacking concern for the well­ being of others. The Mahayana is not a monolithic sys­ tem, and there is no one ‘official’ code of ethics for either laymen or monks. The Vinayas of the early schools were not rejected and continued to be observed by monks and nuns alongside the new teachings recommended for bod­ hisattvas in Mahayana literature. Skillful Means (Upaya-Kaushalya) An important innovation in Mahayana ethics was the doctrine of skillful means (upaya-kaushalya). This teach­ ing was taken by some to mean that the clear and strict rules encountered in the early sources that prohibit cer­ tain sorts of acts could be interpreted more in the way of guidelines rather than as ultimately binding. In particular, bodhisattvas, the new moral heroes of the Mahayana,

Tantra In Tantric teachings, too, the precepts are sometimes set aside. Tantra, alternatively known as the Vajrayana (Diamond Vehicle) or Mantrayana (Vehicle of Mantras), is a form of Buddhism that developed in India in the sixth century CE and is characterized by antinomianism and the use of magical techniques that aim to speed the practitioner to enlightenment in a single lifetime. One of the basic techniques of Tantra is to transmute negative mental energies into positive ones using a form of mys­ tical alchemy that is believed to transform the personality. By liberating energy trapped at an instinctual level in emotions such as fear and lust, it was thought that practi­ tioners could do the psychological equivalent of splitting the atom and use the energy produced to propel them­ selves rapidly to enlightenment. In certain forms of Tantra, such practices involved the deliberate and con­ trolled reversal of moral norms and the breaking of taboos in order to help jolt the mind out of its conventional patterns of thought into a supposedly higher state of consciousness. Examples of such activities include drink­ ing alcohol and sexual intercourse, both serious breaches of the monastic rules. Whereas some practitioners under­ stood such teachings literally, others saw them as merely symbolic and illustrative of Mahayana philosophical teachings such as emptiness (shunyata) and nonduality.

Applied Ethics Monastic Ethics The life of a Buddhist monk or nun is regulated by a code known as the Monastic Rule or Vinaya. The Monastic Rule is a compendium of information about all aspects of the monastic Order. It describes its origins and history, the early councils, disputes over matters of monastic conduct, and recounts how the traditions of the order arose. Embedded in the Monastic Rule is a code of more than 200 articles known as the Patimokkha (Sanskrit: Pratimoksha) that provides detailed instructions regard­ ing how monks and nuns should live communally. In many respects, the Monastic Rule is comparable to the Rule of St. Benedict, which was introduced in the sixth

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century CE as a model for the daily life of Christian monks. The Monastic Rule, however, is much longer than the Rule of St. Benedict. Among other things, it provides an account of the circumstances regarding why each rule was introduced and of modifications that were made as new circumstances arose. The Buddha is repre­ sented as the author of the rules, although internal evidence suggests that many of them date from some time after his death. Much technical information is pro­ vided concerning the types of robes to be worn, the way dwellings should be constructed, how high beds should be off the floor, the type of mats to be used, and so on. In addition to much intricate detail on daily life, the Monastic Rule incorporates the major moral precepts such as those against taking life, stealing, and lying. The records of particular offenses under these rubrics, moreover, are a vitally important source of information from an ethical perspective. Many of the case histories reported shed much needed light on the ethical principles that underlie the rules themselves. Whereas in the Buddha’s discourses moral rules are commonly presented in summary form with little expla­ nation, in the Monastic Rule it is possible to discern more clearly their rationale. The commentaries and discussions concerning the interpretation of the monastic rules are the closest Buddhism comes to the discipline of moral philoso­ phy, and they provide a much needed source of clarification on many points of ethics. It has been pointed out that the Buddhist Order is the glue that, in the absence of any overall spiritual authority, holds Buddhism together. As Buddhism spread, the Monastic Rule was copied and translated into new lan­ guages and remained the basis for monastic life, with only comparatively slight modifications. This has meant that there is a good deal of ethical unanimity across the boundaries of sect and school, and that although Buddhists may have very different understandings of the finer points of doctrine, they are often in broad agreement regarding what should and should not be done from the standpoint of ethics. Duties In common with Indian moral tradition as a whole, Buddhism expresses its ethical requirements in the form of duties. The requirements of Dharma are expressed in the form of what ought and ought not to be done by individuals both in general (as human beings) and with respect to specific social roles. The most general moral duties are those found in the precepts, such as the duty to refrain from killing, stealing, and so forth. These apply to everyone without exception. Formally, the precepts are undertakings, and when the precepts are ‘taken’ in a ceremonial or ritual context, the form of words used acknowledges the free and voluntary assumption of the duty. The ceremony, however, acknowledges the duty; it

does not create it. The duty is a subsisting one that applies even if an individual has never heard of such a precept. It is incumbent, moreover, not only on Buddhists but also on all rational beings of whatever culture race or creed. This is because Dharma is universal and timeless, and its moral authority applies whether it is recognized or not. Examples of duties that vary with social position are the duty of those who are ordained to observe the Monastic Rule, of kings to rule justly and of subjects to obey just laws, of parents to care for their children and children to respect their parents, and of the mutual obli­ gations of husbands and wives. Dharma thus imposes a network of comprehensive and reciprocal duties on social relationships whereby individuals fulfill the moral obliga­ tions required of them or the commitments they have undertaken. Rights There is no word in early Buddhist sources corresponding to the notion of ‘rights’ in the way that is understood in the West. The concept of a right emerged in the West as the result of a particular combination of social, political, and intellectual developments that have not been repeated elsewhere. From the Enlightenment onward, it has occupied center stage in legal and political discourse, and it provides a supple and flexible language in terms of which individuals may express their claims to justice. A right may be defined as an exercisable power vested in an individual. This power may be thought of as a benefit or entitlement, which allows the right-holder to impose a claim upon others or to remain immune from demands that others seek to impose. Rights are the converse of duties. If A has a duty to B, then B stands in the position of beneficiary and has a right to whatever benefit flows from the performance of his duty on the part of A. Although rights are not explicitly mentioned in Buddhist sources, it can be seen that they are implicit in the notion of Dharmic duties. If a king has a duty to rule justly, then it can be said that citizens have a ‘right’ to fair treatment. If a husband has a duty to be faithful to his wife (D.iii.190), then a wife has a right to fidelity from her husband. At the most general level, if everyone has a duty not to take life, then all living things have a right to life; if everyone has a duty not to steal, then everyone has a right not to be unjustly deprived of their property. The logic will work in the same way for the other precepts. It might be said, then, that the concept of rights is implicit in Dharma, and that rights and duties are like separate windows onto the common good of justice. The balancing of rights and duties and the implications of Dharma with respect to specific issues in applied ethics is an ongoing subject of debate. Given its emphasis on compassion and non-harming, Buddhism is strongly opposed to the intentional taking of life in almost all

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circumstances. The killing of animals is disapproved of, although the practice of vegetarianism is not obligatory and varies between Asian countries. Animals are conceived of as closely related to humans by virtue of the belief in rebirth, which means that individuals can cross the bound­ ary between species from one life to the next. In terms of the environment, there is no clear moral imperative to preserve it beyond the instrumental one of making life as comfortable as possible for the living beings that inhabit a given realm. With respect to human beings, the prohibi­ tion on killing is even stronger than in the case of animals, and in the field of medical ethics the practice of abortion is widely condemned in the early scriptures. Suicide and euthanasia are also regarded as wrongful acts, although no harsh condemnation is made of those who commit them. Western Buddhists may differ with their more traditional Asian counterparts on issues of this kind.

Conclusion We might summarize the key points of this survey by saying that Buddhist moral teachings are thought to be grounded in the cosmic law of Dharma rather than com­ mandments handed down by God. Buddhism holds that the requirements of this law have been revealed by enlightened teachers and can be understood by anyone who develops the necessary insight and understanding. In leading a moral life, a person becomes the embodiment of Dharma, and anyone who lives in this way and keeps the precepts can expect good karmic consequences such as happiness in this life and a good rebirth in the next. Buddhist moral teachings emphasize self-discipline (espe­ cially for those who have chosen the life of a monk or nun), generosity (dana), nonviolence (ahimsa), and com­ passion (karuna). Mahayana Buddhism places a special emphasis on service to others, which at times has led to a conflict between compassion and keeping the precepts. Although the notion of skillful means and Tantric teach­ ings have both had some influence on Buddhist ethics, the mainstream view has remained that the precepts express requirements of Dharma and should not be contravened. Questions of a more theoretical nature still outstanding include to what extent we can legitimately make use of Western categories to understand the nature of Buddhist ethics. In the course of this article, the important role of the virtues has been highlighted, which suggests Buddhism may be considered a form of virtue ethics. At the same time, it contains what appear to be utilitarian features (e.g., in the doctrine of karma) and deontological aspects (e.g., in its precepts). The precise nature of the relationship between these three elements remains a subject of discussion among scholars.

See also: Consequentialism and Deontology; Religion and Ethics; Virtue Ethics.

Further Reading Clayton BR (2006) Moral Theory in Santideva’s Siksasamuccaya: Cultivating the Fruits of Virtue. London: Routledge. Cooper DE and James SP (2005) Buddhism, Virtue and Environment. Aldershot, UK: Ashgate. Goodman C (2009) Consequences of Compassion: An Interpretation and Defense of Buddhist Ethics. New York: Oxford University Press. Harvey P (2000) An Introduction to Buddhist Ethics. Cambridge, UK: Cambridge University Press. Keown D (2001) The Nature of Buddhist Ethics. Basingstoke, UK: Palgrave. Keown D (2005) Buddhist Ethics: A Very Short Introduction. Oxford: Oxford University Press. King SB (2005) Being Benevolence: The Social Ethics of Engaged Buddhism. Honolulu: University of Hawaii Press. Mrozik S (2007) Virtuous Bodies: The Physical Dimensions of Morality in Buddhist Ethics. New York: Oxford University Press. Queen C, Prebish C, and Keown D (2003) Action Dharma. New Studies in Engaged Buddhism. London: Routledge. Saddhatissa H (1997) Buddhist Ethics. Boston: Wisdom Publications. Sahni P (2007) Environmental Ethics in Buddhism: A Virtues Approach. New York: Routledge. Sizemore RF and Swearer DK (1990) Ethics, Wealth, and Salvation: A Study in Buddhist Social Ethics. Columbia: University of South Carolina Press. Waldau P (2002) The Specter of Speciesism: Buddhist and Christian Views of Animals. New York: Oxford University Press. Wright DS (2009) The Six Perfections: Buddhism and the Cultivation of Character. New York: Oxford University Press.

Relevant Websites http://www.accesstoinsight.org – Access to Insight. http://www.buddhanet.net – Buddhanet. http://www.bpf.org/default.aspx – Buddhist Peace Fellowship. http://www.moralobjectivity.net – Robert Ellis, A Buddhist Theory of Moral Objectivity. http://www.buddhistethics.org – Journal of Buddhist Ethics. http://www.globalbuddhism.org – Journal of Global Buddhism.

Biographical Sketch Damien Keown graduated in Religious Studies from the University of Lancaster in 1977 and completed a doctorate in Buddhist Ethics at the University of Oxford in 1986. Since 1981, he has taught Buddhism at Goldsmiths College, University of London, where he is Professor of Buddhist Ethics. He is the author of various books and articles, including Contemporary Buddhist Ethics (2000), The Nature of Buddhist Ethics (2001), Buddhism and Bioethics (2001), the Oxford Dictionary of Buddhism (2003), and Buddhist Ethics: A Very Short Introduction (2005). In 1994, with Charles S. Prebish, he founded the online Journal of Buddhist Ethics, which is the only academic journal devoted exclusively to Buddhist ethics. With Charles S. Prebish he has also co-authored Introducing Buddhism (2006) and co-edited the Routledge Encyclopedia of Buddhism (2007).

Built Environment, Ethics and the N Taylor, University of the West of England, Bristol, UK ª 2012 Elsevier Inc. All rights reserved.

Introduction If – as I shall assume – ethics is concerned with how we should relate to and behave toward others, including (arguably) other nonhuman living creatures and organ­ isms in our natural world, then the very act of building is an ethical act because the erection of even the most simple structure affects others, including other creatures in the natural world. To be sure, we can conceive of the most basic circumstances of human habitation in which people might simply be concerned with erecting the most simple structures to meet their most basic needs for shel­ ter, such as when climbers pinned to a mountain construct a bivouac to provide some kind of protection for them­ selves through the night or, at an earlier time, when our ancestors sought the protection of tree canopies or caves. Here, it might be thought, ethics do not really come into the making, or finding, of shelter. However, even at this level of ‘basic need’ satisfaction, mankind’s most basic acts of building sheltered spaces reveal that the activity is informed with normative values, if not ethics, such as when, for example, prehistoric man decorated the caves in which he dwelt. As Simon Unwin has argued, architec­ ture begins with identifying and making ‘places,’ even if it is just finding and shaping some sheltered spot at which to erect a tent or rude shelter. This idea of identifying and making places connects with Martin Heidegger’s notion of ‘dwelling,’ in which the act of building is seen as more than just a utilitarian activity of erecting structures to meet mankind’s ‘functional’ need for shelter; rather, it is viewed as an activity that is consciously informed by certain values of sheltering and placemaking, and thereby of finding, or creating, places in which we feel content to dwell. So, to think of building, and the ‘built environ­ ment,’ at the most basic level is already to engage with human values and ethics. Certainly, if we move from this more modest level to the creation of large-scale built environments such as cities (and nowadays megacities), then ethics looms large. But, what ethics does, or should, inform the shaping of the built environment? This is what I explore in this article by describing a number of different ethical view­ points and theories that may inform, or be applied to, the activity of planning and designing the built environment. In so doing, I concentrate on different ethical positions that have actually informed, or may potentially inform, the practices of urban planning and architecture. I begin by describing a couple of relatively recent real-life cases of

major built ‘infrastructure’ projects and reveal how these cases were informed – in one case explicitly and in the other implicitly – by utilitarian ethics. Next, I describe a standard critique of utilitarianism that derives from an ethical concern with social or distributive justice, and here I draw on the theory of justice famously advanced in the late twentieth century by John Rawls. There are, however, different and rival theories of social justice, and so I go on to describe Robert Nozick’s equally famous riposte to Rawls and his alternative theory of social justice grounded in a theory of just entitlements or desert. Although they are contrasting and rival theories of justice, both Rawls and Nozick draw on ethical presuppositions first expounded by Immanuel Kant, and so I connect both Rawls’s and Nozick’s theories of social justice to a discus­ sion of Kant’s ethics. Here, too, I discuss the Kantian notion of respect for persons as ‘ends-in-themselves’ as an alternative to utilitarianism in relation to the ethics of planning our built environment. Next, I examine a further alternative perspective on ethics, namely virtue ethics. In particular, I explore how this bears on the ‘professional ethics’ of urban planners and architects. Finally, I conclude with a brief note on environmental ethics.

Large-Scale Urban Planning Infrastructure Projects and Utilitarian Ethics Consider two nonhypothetical/real-life cases: 1. A new airport for a capital city: A nation-state in which there is a large capital city, L, currently served by two major airports, foresees that an increasing amount of international air traffic will require either major expan­ sions to one or both of its two existing airports or the building of a new, third airport at another location within easy access to the capital city. The nation-state decides that a new, third airport is needed, and it establishes a group of experts to investigate the most suitable location for the third airport. There are a number of possible alternative locations for the new airport, and so the expert group sets about identifying the various viable sites and then evaluating which of these sites is best. In undertaking this evaluation, the group resolves to undertake a ‘cost– benefit’ analysis in which they seek to identify and weight the various probable costs and benefits that will accrue from the new airport being located at each given site and

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then to choose the location where the ratio of benefits to costs is greatest – that is, the location at which the benefits to the people who will use or be affected by the airport will be maximized. 2. A new motorway link into a city: A major provincial city, B, is served by a national motorway that passes to the north of the city. However, traffic coming off this motorway to enter the city is held up and congested because the current road from the motorway into the city center is a traditional two-lane highway. The city council therefore resolves to build a new road, to motorway standards (with two separated carriageways, each with two lanes and a ‘hard shoulder’ on the nearside of each carriageway), directly linking the motorway to an already existing ring road that encircles the center of the city. The question is, Where should this new motorway link be built? There are various possible alternatives, and so, as in the case of the new airport, an expert group is established to examine which of the possible alternative routes will be most beneficial to the citizens of B. Once again, a cost–benefit method of evaluation is chosen with the aim of selecting that route for the new motorway that maximizes the benefits and minimizes the costs for the citizens of B. As noted previously, both of these cases are real-life cases of urban planning. Both were in the south of England, with the first being the case of the third airport for London and the second for a new road linking the M4 motorway to the city center of Bristol. Also in both cases, the ethical system that was employed, albeit more infor­ mally in the Bristol case than in the London one, was utilitarianism, guided as it is by the moral principle of maximizing the well-being or welfare of all those who stand to be affected by the schemes in question. Both cases arose in the late 1960s and early 1970s, and in the case of London’s third airport, the British government did in fact commission an expert group, later known as the Roskill Commission (after its chairman Lord Justice Roskill), to undertake an evaluation of alternative sites for London’s third airport. The Roskill Commission did indeed carry out a thorough cost–benefit analysis of the alternative sites in order to identify that site which would yield the maximum ratio of expected benefits to costs. The Roskill Commission did not call its analysis utili­ tarianism because (1) it does not appear that any members of the commission were sufficiently aware of different moral theories to realize that in seeking to identify a site for the airport that maximized benefits, they were adopt­ ing a particular, and debatable, ethical position, namely utilitarianism, and (2) an un-thought-through position of utilitarian ethics was at that time just assumed by most planners and technocrats to be the commonsense basis on which to make decisions between possible alternative courses of action to plan or alter the built environment. Thus, most cases of ‘plan evaluation’ (as it was called by

urban planners in the 1960s and 1970s) adopted some form of cost–benefit analysis, and the planning textbooks of the time, such as that by Lichfield, Kettle, and Whitbread, advocated cost–benefit analysis or variants of it, such as Nathaniel Lichfield’s ‘planning balance sheet,’ without so much as mentioning the utilitarian ethics that were implicit in these modes of evaluating alternative plans. As Lincoln Allison stated in 1975, ‘‘The principles which for the most part dominate modern planning, or, for that matter, administration, in Britain are to be found in a single book: Jeremy Bentham’s Principles of Morals and Legislation’’ (p. 74). Bentham, of course, was the father of utilitarianism. Although utilitarian methods of evaluation were viewed by many professional planners as commonsense ways of identifying the best plan or policy from a num­ ber of alternatives, and although ethical (as distinct from ‘technical’) controversy was not evident among those who presided over these cases or wrote books about plan evaluation, when it came to action to realize both the planning projects described previously, there was considerable controversy and protest. In the Bristol case, for example, a route for the new motorway link was selected that ran through a classic example of eight­ eenth-century English landscape design, namely Stoke Park, which had been designed by Thomas Wright in 1745. Because no one was living in this park, this was the least controversial part of the scheme, although those with an interest in the quality of urban green spaces, and historic landscapes in particular, were outraged at this desecration of a beautiful piece of the city’s heritage. However, it was when the new road was pushed on into the center of Bristol that more vociferous protest was aroused. For in order to reach the inner ring road encircling the city center, the new road would have to be carved through some working-class housing that sur­ rounded the northeastern sector of central Bristol, and naturally the residents of these areas were up in arms when they were told that their homes were to be demol­ ished and they would have to move. Other residents of this area, whose homes would escape demolition, were also dismayed to find that they would now be living close to a thundering urban motorway, and among these were the residents of a row of Victorian houses that overlooked a green park but that would, when the road was built, look into an elevated section of this motorway. Hence the controversy and protest. This con­ troversy draws attention to one of the stock ethical criticisms of utilitarian ethics that has been made, for example, by the American philosopher John Rawls, namely that utilitarianism can result in unjust outcomes. It is therefore to Rawls’s theory of justice, and his criti­ cism of utilitarian ethics that derives from it, that we turn in the following section.

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Rawls’s Theory of Justice and His Critique of Utilitarianism Justice The claim that utilitarianism can lead to injustices does of course depend on one’s conception of social justice, and as we shall discuss later, there are rival theories of social justice. In this section, we describe only Rawls’s theory. At the outset of his treatise, Rawls claims that ‘‘justice is the first virtue of social institutions’’ (Rawls, 1971: 3), and so, for Rawls at least, it would be a matter of prime importance that we make just decisions about urban planning, as it would be about any other matter in society. Also, Rawls views the task of establishing a theory of justice as one of specifying moral principles to govern the ‘‘basic structure of society’’ – principles, that is, that ‘‘assign basic rights and duties and determine the division of social benefits’’ (p. 11). For Rawls, then, social justice is concerned with the moral principles that should govern the distribution of rights, duties, and other social benefits. Furthermore, Rawls equates justice with fairness, and so, for him, a theory of (social) justice should seek to specify principles governing the fair distribution of rights, duties, social benefits, and so on. With these preliminaries dealt with, Rawls approaches his task by means of a thought experiment in which he asks us to imagine a situation in which rational, selfinterested individuals are gathered together to choose principles of justice to govern their society. This hypothe­ tical choice situation is termed ‘‘the original position’’ by Rawls. In addition to being guided by reason and selfinterest in the original position, Rawls also specifies that each person is ignorant of ‘‘his place in society, his class position or social status’’ and also ignorant of ‘‘his fortune in the distribution of natural assets and abilities, his intel­ ligence, strength, and the like’’ (Rawls, 1971: 12). In other words, the rational people choosing principles of justice are behind a ‘veil of ignorance’ about any of their natu­ rally inherited or socially acquired capacities and abilities, advantages or disadvantages. Such a choice situation Rawls regards as fair, and so, if reason prevails, this fair­ ness will transfer to the principles of justice chosen in this situation, thereby maintaining the equation of justice and fairness. In his imagined choice situation, Rawls claims that rational, self-interested individuals would choose princi­ ples of justice specifying that all rights and duties, opportunities and goods, and so on (what Rawls terms as ‘‘basic primary goods’’) are to be distributed equally. However, Rawls also thinks that rational people would add an important proviso to this strictly egalitarian out­ come: They would allow a departure from a strictly equal distribution of goods where this would be beneficial to everyone in society, and specifically beneficial to the least favored or most disadvantaged members of society.

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Rawls states this conception of justice in summary form as follows: ‘‘All social values – liberty and opportunity, income and wealth, and the bases of self-respect – are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage’’ (1971: 62). The added proviso permitting a departure from abso­ lute equality Rawls terms ‘‘the difference principle,’’ and its justification is as follows. In the original position, Rawls reasons that rational people would foresee that an unwa­ veringly equal distribution of all goods, such as income, regardless of occupation, would likely have the effect of dissuading all but a few people from pursuing certain occupations that, although being of actual or potential benefit to everyone in a society, also involve a high degree of responsibility or risk, a prolonged and exacting specia­ list training, and so on. Occupations such as dentistry and brain surgery might be examples. Accordingly, rational individuals in the original position would endorse the difference principle permitting inequalities in the distri­ bution of certain goods, such as occupational incomes, to ensure that socially valuable occupations, such as dentis­ try and brain surgery, are filled. In other words, rational individuals would permit inequalities where those inequalities serve the interests of everybody in society, or those people who stand to be disadvantaged with respect to certain goods, such as those who now or may in the future require brain surgery or dental treatment. Nonetheless, aside from the difference principle, Rawls’s theory is otherwise an egalitarian theory of justice. In light of Rawls’s egalitarian theory of justice, let us return to the examples of urban planning described pre­ viously. Consider, in particular, the second of those cases, in which the new motorway link into the city of Bristol was deemed morally justified because it maximized the welfare of the people of Bristol taken as a whole. Now, although this new road may indeed have maximized the welfare of the citizens of Bristol overall, the alignment chosen had the effect of disadvantaging a particular group of Bristol’s citizens, namely those who were living in the path of, or close to, the new road. Moreover, among the inhabitants of Bristol, this group was, as it happened, generally already a relatively disadvantaged group in the city in that it comprised a working-class community with generally lower incomes, residing in a less attractive area of the city. An urban planning project endorsed by utilitarian ethics therefore had the effect of making an already disadvantaged group even more disadvantaged, thereby augmenting social inequalities. This, according to an egalitarian view of justice such as Rawls’s, was unjust. As Shean McConnell, a writer on urban planning, stated, ‘‘In this century it has been realized that Utilitarianism . . . could be used as a way of justifying the destruction of some poor people’s homes to build new apartment blocks and highways for the supposed good of many people’’

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(McConnell, 1981: 174). Rawls and his followers, such as McConnell, therefore reject utilitarian ethics as a reliable guide for making just urban planning decisions. If, instead of utilitarianism, we were to adopt Rawls’s principles (or some other similarly egalitarian view) of social justice as the basis for making urban planning decisions, then there would be a prima facie commitment to creating socially more equal cities, with the Rawlsian proviso of allowing inequalities where these would enhance the environmental quality of the least favored citizens. On this basis, therefore, there would be a public ethical commitment to provide, for example, affordable ‘social’ housing for those unable or less able to afford their own homes, good educational establishments and employment opportunities for all, good public transport for those who cannot afford their own personal transport, aesthetically attractive and healthy environments for all with access to recreational green spaces and parks, and so on. In short, there would be a commitment to redistribute what the geographer David Harvey termed ‘‘real’’ income, such as good quality urban environments, to the least favored members of society. Also, as part of this strategy, there might be a focus on giving special attention to the environmental needs of particular disadvantaged or marginal groups, such as the disabled and infirm, gypsies and ethnic minorities, the homeless, and the destitute.

Nozick’s Entitlement Theory of Justice, Kantian Ethics, and Urban Planning Previously, it was acknowledged that there are differing and rival views of social justice underpinned by different philosophical premises. Egalitarian theories of justice, such as Rawls’s theory, would therefore not be accepted by everyone as the appropriate basis for planning just cities or, more generally, achieving just environments. In fact, within 3 years of the publication of Rawls’s theory of justice, a fellow American, Robert Nozick, published a critique of Rawls’s theory and simultaneously advanced an alternative theory of justice grounded in individuals’ entitlements to acquire and own goods. In this section, therefore, I describe Nozick’s alternative theory of social justice and discuss its implications for making urban planning decisions. Nozick draws a distinction between what he terms ‘‘end-state’’ and ‘‘historical’’ theories of justice. The for­ mer, of which Rawls’s theory is an example, aim to envisage an ideally just distributive pattern of goods that, being ideally just, represents an end-state toward which a just society should work. However, according to Nozick, the fault with such end-state theories of justice is that they take no account of how goods are created and acquired by individuals in the first place, nor do they pay any heed to whether individuals might be entitled to the

goods that they possess. By contrast, what Nozick terms entitlement theories of justice do pay attention to this by grounding principles of distributive justice on some prior principles of just acquisition, and in this way such theories take account of the history of people’s actions to acquire and own things. As noted, Nozick advanced such an entitlement theory of justice. In doing so, he claimed simply to be updating, 300 years later, John Locke’s theory of individual rights and appropriate governance as set out in his Two Treatises of Government. Like Locke, Nozick claims that ‘‘individuals have rights’’ (Nozick, 1974: ix), and that the most basic of these rights is the right of self-ownership – that is, the right to own one’s own body and mind. Also, for Nozick as for Locke before him, from this right other ownership rights follow, such as the right to own the fruits of one’s labor using one’s own body and mind and also the right to own things acquired as gifts from, or through voluntary exchanges with, others. According to Nozick, then, providing people obtain the goods that they possess from the free exercise of their labor, or from gifts and voluntary exchanges, these goods are justly acquired, and the relevant people are entitled to them. By extension, if all the goods possessed by all individuals in a given society were acquired by such means, then all the indivi­ duals in that society would be entitled to the goods they possess, and the resultant distribution of goods among the people would be just, whatever that distribution is. If we imagine such a situation of just acquisitions and entitlements, then there is of course no guarantee that the resulting pattern of goods (or ‘holdings,’ as Nozick some­ times terms them) will be equal between people. Indeed, this outcome seems unlikely. Rather, we would expect inequalities of holdings to arise, reflecting different indi­ viduals’ differing abilities and/or efforts. But however that may be, for Nozick we cannot say, a priori, of any dis­ tributive pattern of goods that it is just or unjust. For whether or not any given pattern is or is not just depends on how the various individuals in that society have acquired their various holdings, and whether they are entitled to them. But this, according to Nozick, is pre­ cisely the mistake that Rawls, and others of his persuasion, makes: They conceive of a just distribution of goods in terms of some ideal pattern or end-state, without attend­ ing to the all-important matter of how people come to acquire the goods that they hold in the first place, and without considering whether people are entitled to hold the goods that they have acquired. Because entitlement theories of social or distributive justice such as Nozick’s, together with comparable the­ ories of justice grounded in a view of what individuals deserve to hold, countenance the possibility that unequal patterns of ownership may be just, protagonists of these theories of justice have sometimes been assumed to sup­ port the kinds of inequalities that have emerged in liberal

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capitalist societies, including the inequalities we can observe in most cities in these societies, with, for example, their starkly contrasting environments between sumptu­ ous suburbs in which some people inhabit spacious houses set in generous gardens and areas of mean working-class terraces and tenements with hardly a green park or tree in sight. Now, to be sure, unequal distributions of goods, including environmental goods such as access to good housing or green spaces, cannot be ruled out as unjust in Nozickean terms. On the contrary, if the inequalities in citizens’ respective living environments were to be the outcome of a Nozickean process of acquisitions and entitlements, then – if we accept Nozick’s account of just acquisition and entitlement – we would also have to accept that these inequalities in the possession and enjoy­ ment of environmental goods are correspondingly just. However, by the same logic, we should also question whether the material and environmental inequalities that obtain in the world have arisen in ways that match Nozick’s theory of just entitlements. For a start, for any given pattern of existing property ownership, we would have to be sure that any original acquisitions of property had been justly acquired, for if they were not, then any additional acquisitions and inequalities arising from these original acquisitions would also be unjust. As it happens, it is extremely difficult to establish that original acquisitions of property, made at some time back in human history, were justly acquired in Nozickean terms. Certainly, we know of cases in which whole populations of people have acquired their property holdings by, basically, theft rather than as a result of the fruits of their own labor or genuinely voluntary transactions or gifts. Consider, for example, how white Europeans acquired land from the indigenous Indian populations of North America or from the abori­ ginal population of Australia. In cases such as these, if we were to acknowledge that the original acquisitions of land by Europeans were unjust, then all subsequent acquisi­ tions are arguably unjust, as would be the connected inequalities that we see in these societies between former European colonists and the indigenous Indian peoples. Thus, the idea that Nozick’s entitlement theory of justice, or any other similar theories of entitlement or desert, justifies the marked social inequalities that we see in liberal capitalist societies and cities is highly questionable. Aside from these matters of history, there is a further philosophical difficulty that Nozick faces, as do others who advance theories of distributive justice grounded in either entitlements or desert, and this is the challenge of specifying an acceptable theory of entitlements and/or desert. This, it turns out, is philosophically more fraught than Nozick seems to have acknowledged. Which brings us back to Rawls and his hypothetical choice situation or ‘‘original position.’’ As Dworkin has argued, Rawls’s ega­ litarian outcome is already implicit in his original position because Rawls wishes to ensure that principles of justice

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are chosen under conditions that are themselves just, and in specifying that the individuals in his original position are to be behind a veil of ignorance regarding their natural and social identities, Rawls already puts those people in a position of equality, as if this, already, is what justice dictates. But why might Rawls think that this original position of equality between persons is itself a just or fair choice situation? Or – what amounts to the same question – why might Rawls think it fair for people to choose principles of justice behind a veil of ignorance about their natural or social identities? Rawls’s answer is that the natural capacities and abil­ ities that people are born with, and/or the advantages or disadvantages that people acquire from their social upbringing and position, are themselves matters of luck, and so not deserved. For Rawls, luck or chance should play no part in moral deliberation. If this is accepted, then it follows that inequalities of either natural or social endowments are – being a matter of luck – unjustified, and so too are any further inequalities that arise, or are acquired, from these base natural and social inequalities. Hence, Rawls’s conclusion is that the most just distribu­ tion of goods is an equal one, with his pragmatic proviso that rational individuals would endorse inequalities where it can be demonstrated that these inequalities ben­ efit the most disadvantaged members of society more than they would have otherwise benefited from a strictly equal distribution. Consider, again, the kinds of inequalities that we see in the built environments of cities throughout the world, such as the situation of children born into families living in poor slum areas of cities where, apart from the poor housing, there is often little green open space for play and recreation, there are poor schools and other educational opportunities, and so on. Are we to say, of these children, that they deserve their relatively poor environment and the limited opportunities it provides? Likewise of chil­ dren born into wealthy urban areas: Are we to say that they deserve their attractive and comfortable environ­ ment and all the further advantages it offers? In either case, surely not. But then, if not, there is a strong case for some kind of Rawlsian strategy directed at redistributing environmental and other advantages in favor of the least favored inhabitants of cities. There is a further point worth making before closing this discussion of distributive justice in relation to urban planning, and it is a more general point about ethics and the priority we accord to different ethical principles. The discussion of this section has been couched entirely in terms of social or distributive justice. However, not­ withstanding Rawls’s assertion that ‘‘justice is the first virtue of social institutions’’ (Rawls, 1971: 3), justice is not the only ethical principle of appeal in society or in relation to the built environment. There is also, and famously in the judgment of King Solomon, the ethic of

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mercy and, relatedly, of compassion, charity, kindness, and so on. Indeed, contrary to Rawls, one could equally well argue that the first ethical virtue of any society is kindness, or compassion, charity, and mercy, more than justice, as it was with Solomon. Accordingly, even if we were to inhabit a society in which there were marked social inequalities, and in which those inequalities had arisen from a Nozickean process of just acquisitions and entitlements, from an ethical point of view it would not necessarily follow that we should do nothing to attend to the poorer conditions experienced by the least favored in this society. For, aside from the justice of any distributive pattern of life chances, we might argue that we should direct our practical efforts in planning and shaping urban environments to providing better living conditions and opportunities for those who inhabit relatively poorer environments in this society, simply because it is the mark of an ethically civilized society to show its concern for those who suffer environmental as well as other disadvantages.

Rawls, Nozick, and Kantian Ethics Despite the differences between Rawls’s and Nozick’s respective theories of justice, there is an ethical premise that both Rawls and Nozick share, and that is a concern and respect for individual persons as relatively autonomous beings capable of conceiving of projects of their own by which to shape their lives – beings, that is, who have the capacity to be self-determining agents. In this, they each draw on an older ethical tradition given voice by the eighteenth-century German philosopher Immanuel Kant, particularly his ethical imperative that instructs us to relate to and treat other persons as autonomous beings in their own right or, as Kant stated, as ‘‘ends-in-themselves,’’ rather than as means to our own, or other people’s, ends. Thus, one of Rawls’s main objections to utilitarian ethics is that it can endorse overriding the interests of some individual persons in order to achieve the utilitarian end of maximizing the happiness (or utility, welfare, etc.) of a population taken as a whole. According to Rawls, this is equivalent to treating some people as means to achiev­ ing some end (e.g., maximizing happiness) rather than respecting all individuals as autonomous beings or, in Kant’s phrase, as ends-in-themselves. Indeed, Rawls explicitly saw his approach to ethics as building on (among others) Kant, and he once described his theory of justice is a ‘‘Kantian construction’’. Similarly, Nozick’s entitlement theory of justice rests on an ethical founda­ tion of respecting the autonomy of individual persons. That is why the rights of individuals to certain freedoms (e.g., to acquire goods from the free exercise of their labor, from voluntary exchanges, etc.) is central to Nozick’s theory. It is also why Nozick, like Rawls, is critical of

utilitarianism. He emphasizes that moral theories inevi­ tably advance some view about how people are to be treated, and that any moral theory worthy of the name should recognize certain constraints (which he terms ‘‘side constraints’’) on what can be done to or with individual persons. As he wrote in a much quoted passage, Side constraints express the inviolability of other persons.. . . Why not . . . hold that some persons have to bear some costs that benefit other persons more, for the sake of the overall social good? But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different indivi­ dual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up.. . . To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him – least of all a state or government that claims his allegiance . . . and that therefore scrupulously must be neutral between its citizens. (Nozick, 1974: 32–33)

This is confidently stated, but it is better stated than argued. Moreover, it states a position that is difficult to sustain with respect to actions to change our physical environment. For any action that involves an alteration to the physical environment inevitably falls disproportio­ nately on some people, and this because physical or geographical space, and what is built on or done to physical space, is not moveable. Thus, houses, factories, office blocks, prisons, parks, woodlands, roads, airports, sewerage works, football stadiums, and so on can only be located in particular places, and so it is inevitable that some people living near such things stand to either ben­ efit or be harmed more or less than others by the siting of these things, and talk of ‘using’ these people for the good of others, or for the overall social good, does not address, still less solve, this problem. Unless, of course, one adopts the unrealistic stance of saying that we should have no airports, prisons, sewerage works, and so on. If, however, we are to have such things in the built environments in which people live, and we are to seek, as best we can, to make ethically good decisions about such matters, then it is incumbent on Nozick to suggest some criterion or principle to guide us, and the Kantian principle that we should treat each person as an end-in-themselves is of little help here. Nor, for that matter, is Rawls’s theory much help here. To be sure, we might be guided by his conception of justice and suggest that we make urban planning decisions in favor of the autonomy of the least favored people in

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society, and so only site, for example, new airports or sewage works away from places inhabited by the already least favored, even if this means siting them in or nearer to places where the more favored live. However, quite apart from the technical difficulties that will sometimes stand in the way of the realization of this principle (e.g., airports and sewage works have to be sited on flat land, and the rich may be living in the hills), the rich or more advan­ taged members of given societies generally inhabit areas that are aesthetically more attractive than where the poor live, and many would argue that it would be morally, and not just aesthetically perverse, to destroy such attractive areas. Returning to the second case cited at the beginning of this article, an alternative for the motorway link into Bristol would have been to run it through the wealthy suburb of Clifton, but few would have endorsed a motorway ripping through what the English poet John Betjeman once described as ‘‘the finest suburb in Europe.’’ In light of these specifically environmental consid­ erations, there remains a strong case, after all, for the adoption of some kind of utility-maximizing principle as the basis for making decisions that affect our environ­ ment, providing – in deference to a Kantian respect for persons – we also ensure that there are measures in place to compensate, as far as possible, those who are displaced and/or adversely affected by new urban developments such as roads and airports. To put this in Kantian terms, if we cannot avoid sometimes having to treat some people as means toward the greater good of everybody, then at least those people should receive compensation to restore, as far as possible, their right to be treated as ends-in-themselves by providing them with the means to inhabit the kind of environment they lived in before. With such a compensatory proviso in place, some would still urge us to be guided by some form of utilitarianism when it comes to making decisions about the built environment.

Virtue Ethics and Professionalism in Urban Planning and Architecture According to some philosophers, there are three main philosophical positions in ethics: consequentialism, deon­ tological ethics, and virtue ethics. So far in this account of ethical positions that can inform decision making about our physical environment, we have touched on conse­ quentialism, in its most favored form of utilitarianism, and on deontological ethics, in its most favored form of Kant’s ethics. But what about virtue ethics? In contrast to both consequentialist utilitarianism and deontological Kantian ethics, virtue ethics is, as Michael Slote stated, ‘‘agent-focused’’ in that it concerns itself with the ‘‘inner traits, dispositions, and motives’’ that make a person morally virtuous rather than with

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the specification of rules or principles to govern action (see Baron et al., 1997: 177). The ‘application’ of virtue ethics in relation to the built environment therefore lies in the ‘traits, dispositions, and motives’ that we would wish to see ingrained in those agents involved in plan­ ning, shaping, and designing the built environment. In this respect, virtue ethics relates directly to the ‘profes­ sional ethics’ of built environment professionals such as urban planners and architects. Most planners and archi­ tects are members of professional institutes representing their discipline, and these professional institutes typi­ cally produce codes of professional conduct that they expect, or require, their members to adhere to. Almost all professional codes of ethics state two prin­ ciples of behavior that the relevant professionals are expected to adhere to in their professional work. First, as far as the actual work undertaken by professionals is concerned, codes of professional conduct require their members to carry out their work competently, employ­ ing the specialist skills and expertise that they have acquired through their professional education and train­ ing. Second, as far as the advice that professionals render to their clients is concerned, and setting aside the remuneration they receive for their work, codes of pro­ fessional conduct expect their members to exhibit ‘professional altruism’ in their dealings with clients by employing their expert, professional judgment to advise clients in ways that best serve the clients’ interests rather than the interests of the professionals. For example, if there is a solution to an architectural problem that is just as effective and yet easier and cheaper than some other solution, then an ethically professional architect should make this clear to a client, even when it would be in the architect’s pecuniary interest to undertake the more complex and expensive design and so advise his client to adopt this option. The first of the previously mentioned principles of professional conduct concerns the expertise and specialist skill that we expect from professionals; indeed, that is what distinguishes, or should distinguish, ‘professional’ work from that undertaken by ‘amateurs.’ By contrast, the second principle is specifically a moral or ethical principle in that it requires professionals to behave in certain ways toward the clients they serve by rendering truthful judgments and opinions to clients, even when doing so is contrary to professionals’ pecuniary interests. It is here that we can see the intimate connection between professional and virtue ethics. For, aside from their professional expertise and competence, we expect profes­ sionals to exhibit the virtuous traits of truthfulness and altruism in their dealings with clients. The ethical virtues of professionals, as described pre­ viously, might seem to stand separately from the particular tasks that professionals are called upon to carry out because we would expect professionals to act

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truthfully and altruistically toward their clients whatever the nature of the work that they are being asked to do. However, there is, or can be, an ethical dimension to the substantive work that professionals undertake, and it is possible for this to come into conflict with professionals’ obligation to act virtuously toward their clients. This is nowhere more starkly illustrated than in the case of those architects and designers employed to design the Nazi concentration camps during World War II, where satisfying the Nazi client’s order for well-designed con­ centration camps required architects to design buildings in which to exterminate people. This, of course, is an extreme example, and many architects would preempt this kind of ethical dilemma by simply not taking on work of this kind. However, the very nature of urban planning and architectural work is such that planners and architects can still face ethical dilemmas of the same structure as that described previously, albeit in less extreme or harrowing conditions than those obtain­ ing in Nazi Germany. In contemporary liberal capitalist societies, although urban planners may produce plans for urban develop­ ment, and although architects, along with urban and landscape designers, may design new urban development, planners and architects do not themselves pay for or provide new urban development and building. Rather, it is private land developers and companies that invest in and undertake land development, including retail busi­ nesses such as Wal-Mart and Tesco and large-scale home builders such as Barrett and Bovis. The ethical dilemma that can arise for built environment professionals arises because these developers and companies are typically primarily concerned with the economic viability and profitability of their schemes of development rather than with the ecological, aesthetic, or wider social conse­ quences of their developments. For example, nowadays major retail developers insist on there being generous areas of car parking surrounding their shopping centers for the convenience of their customers, even though this only further encourages people to use their own motor vehicles, which in turn contributes to global warming through the emission of greenhouse gases (not to mention the profligate use of resources to manufacture all the individual vehicles needed to serve this individualized means of transport). Aesthetically, too, modern, largescale supermarkets, which are essentially large sheds surrounded by seas of tarmac for car parking, are hardly beautiful additions to our landscapes and townscapes. Yet these are some of the clients that contemporary urban planners, designers, and architects have to serve, and thus they can find themselves drawn into undertaking work that contributes to the diminution, rather than the enhancement, of the quality of our physical environment. This, of course, is exactly the opposite of what these built environment professionals aspire to achieve in

practicing their profession. Alongside their professional commitment to act virtuously toward their clients, urban planners and architects typically also see it as their professional duty to do work that improves and enhances the quality of the built environment (ecologically, aesthetically, etc.), not work that further wrecks our surroundings. To be sure, the kind of ethical dilemma just described can be viewed in another way, as raising the question of who, really, are the clients of built environment profes­ sionals such as urban planners, architects, and urban designers. It is possible to regard the clients of urban planning and architecture as the public at large because it is they who have to live with the environments that planners and architects help to plan and design. Certainly, many planners and architects see it as their professional duty to serve the ‘public interest,’ however that is conceived, and this is reflected in the claims made by professional bodies representing these professions. Thus, the professional code of conduct produced by the British Royal Town Planning Institute begins by declar­ ing that the purpose of the Institute is to advance the art and science of town planning ‘‘for the benefit of the public’’ (Taylor, 1992: 231). However, within liberal capi­ talist societies, most landed property is owned and developed by private individuals and firms, and land development is typically only undertaken, and most buildings only built, when this serves the interests of the private individuals and firms undertaking the devel­ opment. In serving these clients, planners and architects seek simultaneously to serve the interests of the wider public in ensuring the creation of good quality environ­ ments. However, because the ultimate decision to develop or not to develop land lies with private indivi­ duals and firms operating within a competitive market, planners and architects are still frequently faced with the dilemma of having to compromise their ethical ideals if there is to be any new development at all.

Conclusion and a Brief Note on Environmental Ethics In the opening sentence of this article I noted, in passing, that ethics is concerned with how we relate to and behave toward others, including, arguably, nonhuman others such as the creatures and organisms of the natural world. In approximately the past 25 years, a concern with the latter – that is, with how we relate to and use the natural world – has become an ever-increasing matter of atten­ tion as a result of the spoliation of the natural world by human activity and the threat this now poses to the natural ecology of the planet we inhabit and depend on for our very survival as a species, not to mention the survival of other creatures such as tigers, elephants, the

Built Environment, Ethics and the

small blue butterfly, honey bees, and the myriad other creatures and plants whose role is maintaining the ecol­ ogy of our planet we barely understand. Understandably, then, one of the prime ethical preoccupations of urban planners and architects during this period has been an ever-growing concern with designing buildings and plan­ ning cities that function more in harmony with nature rather than damagingly against it. Indeed, one could say that for urban planners and architects, and government departments concerned with the built environment, the main preoccupation during approximately the past two decades has been the aspiration to design buildings and plan cities that create or contribute to environmentally ‘sustainable development.’ Many urban planners and architects would therefore now proclaim this as their prime objective and, given the dangers of global warming and other environmental threats, this aim assumes the status of an ethical obligation. Also, this ethical concern with the natural environment in architecture and urban planning has been mirrored in philosophy by the emer­ gence and expansion of what has come to be termed ‘environmental ethics.’ I do not have sufficient space here to describe in detail this burgeoning field of new ethical concern, and so I shall, in conclusion, note just two points about it. The first is that given the potential threat that environmental damage and change, such as global warming, poses to human beings, even to the survival of the human species, it seems likely that this area of ethical concern will con­ tinue to grow, and receive increasing attention and action, in government (including international government) in general and in those activities responsible for the built environment, such as architecture and urban planning, in particular. Second, with regard to theory, there is a question as to whether environmental ethics represents a new ethical theory or whether, alternatively, it reduces to one or even all of the ethical positions that were examined pre­ viously in this article, albeit with the attention of those positions now redirected toward, or taking more serious account of, the natural environment and the probable effects of human action on it. Thus, it is possible, for example, to take account of the natural environment within the framework of utilitarian ethics and so accommodate it in calculations designed to maximize human welfare; how­ ever, in those calculations, it would now be accorded a greater weight than has typically been the case hitherto, when the significance of the natural environment for human well-being was insufficiently appreciated. Equally, environmental ethics could be accommodated within the deontological ethics of Kant, where respect for nature could assume something like the status that respect for

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persons does within Kant’s ethics. Similarly, a moral con­ cern with the natural world could become a central part of virtue ethics, with, in this case, virtuous behavior residing in, or at least including, a respect for nature and its crea­ tures – a respect that would significantly affect how we relate to and treat animals and other natural creatures. Whether or not environmental ethics necessarily reduces to one or other (or even all) of these more traditional ethical positions remains a matter of ongoing debate among environmentalists as well as philosophers. See also: Environmental Ethics, Overview; Environmental Justice; Kantianism; Land Use Issues; Professional Ethics; Utilitarianism; Virtue Ethics.

Further Reading Allison L (1975) Environmental Planning: A Political and Philosophical Analysis. London: Allen & Unwin. Baron MW, Pettit P, and Slote M (1997) Three Methods of Ethics. Oxford: Blackwell. Commission on the Third London Airport (1971). Report. London: HMSO. (The ‘Roskill Report’). Dworkin R (1978) Taking Rights Seriously. London: Duckworth. Harvey D (1973) Social Justice and the City. London: Arnold. Heidegger M (1971) Poetry, Language, Thought (Hofstadter A, ed. and trans.). New York: Harper & Row. Kant I (1964) Groundwork of the Metaphysic of Morals (Paton HJ, trans.). New York: Harper & Row. (Original work published 1785). Lichfield N (1996) Community Impact Evaluation. London: UCL Press. Lichfield N, Kettle P, and Whitbread M (1975) Evaluation in the Planning Process. Oxford: Pergamon. Locke J (1924) Two Treatises of Government. London: Dent. (Original work published 1690). McConnell S (1981) Theories for Planning. London: Heinemann. Nozick R (1974) Anarchy, State and Utopia. Oxford: Blackwell. Rawls J (1971) A Theory of Justice. Oxford: Oxford University Press. Rawls J (1980) Kantian construction in moral theory. Journal of Philosophy 77(9): 515–572. Taylor N (1992) Professional ethics in town planning: What is a code of professional conduct for? Town Planning Review 63(3): 227–241. Unwin S (2003) Analysing Architecture, 2nd edn. London: Routledge.

Biographical Sketch Dr. Nigel Taylor is a principal lecturer in the Department of Planning and Architecture at the University of the West of England, where he teaches the theory and philosophy of urban planning and architecture and also aesthetics in rela­ tion to urban design. He has published numerous articles and book chapters on these subjects and also a book on the recent history of urban planning ideas titled Urban Planning Theory Since 1945. As well as being a qualified town planner (with an MPhil in town planning), he is a qualified philoso­ pher (with an MA and PhD in philosophy), and he has also taught in the Department of Philosophy at the University of Bristol.

Business Ethics and Gender Issues C M Koggel, Bryn Mawr College, Bryn Mawr, PA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Consequentialism A subcategory of normative ethics under which fall theories that hold that the consequences of a particular action form the basis for determining morally right action. An action is morally right insofar as it produces good consequences. Deontology A subcategory of normative ethics distinct from consequentialism in that deontological theorists determine the rightness or wrongness of an act from the character of the act itself rather than from the consequences of the action. The most well-known deontological theorist is Immanuel Kant. Essentialism A view that holds that a set of characteristics or properties define what it is to be an entity of a certain sort. With respect to ethics, essentialists hold that there are certain properties possessed by people or a specific group of people that are universal and not dependent on contexts. Libertarianism A form of liberal political theory that advocates the maximization of individual liberty and the minimization of state regulation and intervention in things like property, corporations, taxation, or welfare. Postcolonial feminism A form of feminist philosophy that holds that theories of oppression need to incorporate an understanding of the long-lasting economic, political, and cultural effects of racism and colonialism on all women in a postcolonial context. Postcolonial feminists are critical of Western feminists who take their experiences of oppression to be those of all women and thereby fail to represent women in contexts with different histories, issues, and experiences.

Introduction Business ethics is a branch of applied ethics that examines ethical principles and moral problems arising in and through the world of business. Like other areas of applied ethics that have developed during the past few decades, such as bioethics, development, and the environment, business ethics has both a descriptive and a normative element. In its descriptive function, business ethics most often ties the workings of the business world to processes of markets, economic growth, profit, technological advances, and organization and management practices.

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Relativism The view that there are no facts to be discovered objectively and that truth is relative to individuals, histories, or cultures. Moral relativists hold that moral propositions do not reflect universal moral truths but are instead relative to social, cultural, or historical circumstances. On this account, there is no universal standard by which to assess the truth of an ethical proposition or belief. Transnational feminism A form of feminist philosophy that takes transnational approaches to be distinct from international approaches in explaining women’s oppression. Transnational feminists are attentive to intersecting factors such as nationhood, race, gender, sexuality, and economic structures on a world scale and use these to describe and explain women’s oppression. Universalism The view that facts can be discovered objectively. In the realm of morality, universalism holds that there are moral facts that apply to all people in all situations, times, and places. Utilitarianism A form of consequentialism that holds that an act is morally right when it produces good consequences. Utilitarians have provided different accounts of what the good consequences are. The most well-known accounts are those of John Stuart Mill, who argued for good consequences in terms of the greatest balance of happiness over unhappiness for all concerned, and Jeremy Bentham, who argued in favor of pleasure as that which should be promoted. Virtue ethics A subcategory of normative ethics that focuses on the character of the agent rather than on the nature or consequences of the action itself. The most well-known virtue ethicist is Aristotle.

In its normative use, the business of business ethics is to open up inquiry into the structures, policies, and princi­ ples that underlie the often taken-for-granted descriptive aspects of the business world and of the related conduct of individuals and organizations. Discussions of gender issues in business ethics reveal this use of descriptive and normative aspects. The descriptive aspects attempt to capture the real-life situa­ tion and experiences of women in the business world and to show the range of inequalities and injustices that women have suffered and continue to suffer. The norma­ tive aspects attempt to uncover the taken-for-granted

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principles and values and to advocate strategies and poli­ cies designed to address or remove women’s inequality in a range of business spheres. As in other realms of applied ethics, feminism has had an impact on changing business ethics in terms of both the scope of the issues and the methods for examining them. Two of the key changes in business ethics, which have been reflected in feminist theory, are evident in the broadening of the discussion from women’s oppression to oppression of all kinds and in the expansion of issues of gender to the global context. An exploration of the role of gender in business extends the task of the business ethicist who raises ques­ tions about the ways in which the various aspects of business are at odds with noneconomic moral and social values. Should profit maximization rather than responsi­ bilities to others be the central motivation and incentive of business managers, shareholders, or corporations? Are accounts of what it takes to run a successful business destructive of values of caring for others in families and in communities and for the environment? Does our increasingly globalized world raise new demands and pressures for restraining growth, redistributing the profits of big business, or setting regulations for what businesses can do? This article surveys the relevance of gender to issues that have been and continue to be central to busi­ ness ethics. It begins by tracing developments in business ethics as discussed in the North American context to highlight the contributions of those who challenged the dominance of Western perspectives on gender and on business and broadened the discussion of both gender issues and business ethics to the global context.

Early Discussions of Gender in Business Ethics Although there have been discussions of business and how it works for a very long time, interest in business ethics as a separate area of inquiry has increased substantially since its emergence in the 1970s and 1980s. A look at the tables of contents in North American journals and textbooks devoted to business ethics shows a marked change not only in the range and variety of topics covered during the past few decades but also in the way that gender issues are discussed. Early business ethics textbooks contained chapters covering topics such as the moral status and responsibilities of corporations, capitalism and socialism (and related topics of property rights and free market structures), employee rights and employer obligations, advertising, corporate governance, and the environment. At least initially, the articles within these chapters rarely included discussion of the relevance of gender to these topics. Discussions of employee rights, for example, might cover topics of participation in decision making, the alie­ nation of workers from their work, and whistleblowing

but make virtually no mention of how gender might be relevant to the analysis of the ethical issues of discrimina­ tion, marginalization, or the exclusion of women underlying these topics. It is fair to say that in business ethics, as in applied ethics more generally, the issues were assumed to be gender neutral in that whether the char­ acters were men or women was taken to be irrelevant to the analysis. The absence of a discussion of the relevance of gender can also be said to have been the case in general surveys of moral theories, where whole textbooks on moral theory as well as introductory chapters in a variety of applied ethics texts examined standard accounts of relativism, consequentialism, deontology, libertarianism, and virtue ethics. Gender was mentioned only by way of including examples of women in stereotypical roles or of excluding any discussion of moral reasoning processes as being applicable in private sphere activities dominated by women and viewed as natural, personal, and voluntary. Absent as well in early literature on business ethics was any awareness of how gender norms may have shaped discussions of justice, rights, or virtue in moral theory and of the rights and responsibilities of workers, corporations, or advertisers and consumers in business ethics. To better grasp what is at stake in these early discussions that lacked any sustained examination of the relevance of gender, consider a chapter in a business ethics text titled Happiness and Success with article titles such as ‘‘Success, Ambition, and the Meaning of Money’’ and ‘‘Death, Failure, and Frenzy: On Not Getting What We Want.’’ It is not difficult to grasp how norms prevalent in liberal theory about gender roles and of the value of free market structures, for example, would shape the discussion of happiness and success as tied to a male-dominated busi­ ness world where accounts of what it takes to climb the corporate ladder, increase profits, or get ahead and be successful in life prevailed. Another example appears with the issue of advertising, where topics could include discussions of product liability, sales practices, or the creation and manipulation of consumer desires without a mention of the role of women or of sexism in advertising or of the ethical implications of this use of images to promote sales. As in other domains of inquiry, it would take some time for business ethicists to recognize how the assumed and taken-for-granted gender norms might be relevant to an account of the underlying ethical issues. As discussed later, Carol Gilligan’s work on the ethic of care in the early 1980s would be a key impetus for changing the discussion of gender and of its relevance to business ethics and moral theory more generally. Before Gilligan’s influence would take hold, gender was taken to be relevant in the early literature on business ethics only with regard to the topic of discrimination in employment practices. Here, gender was given separate treatment in textbook chapters that covered arguments for and against affirmative action on the basis of gender as

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well as race. These debates began by describing women’s underrepresentation in the workplace and their lower pay at various levels in order to show that discrimination was at work, that it constituted an injustice, and that it needed to be addressed. Under a liberal framework in the North American context, however, the discussion was limited to two main approaches to affirmative action: a formal equality approach that defended the removal of legal and formal barriers to women’s participation in the work­ place and a substantive equality approach that justified positive measures in the form of preferential hiring for those who had suffered and continue to suffer discrimina­ tion in hiring practices. Formal equality theorists argue that removing the legal barriers that once prevented some members from entering the marketplace or the business world is both necessary and sufficient for giving everyone an equal opportunity to compete for basic goods. The resulting distribution merely reflects what different peo­ ple deserve given their natural talents and abilities and their efforts to apply themselves. In contrast, liberal sub­ stantive theorists argue that the removal of barriers is necessary but not sufficient. For them, a commitment to justice and fairness requires affirmative action measures for those whose unequal starting positions are the result of systemic discrimination that establishes unfair disadvan­ tages and unequal opportunities. Feminists would enter the broader debate on affirma­ tive action by challenging the liberal framework. They argued that both options of formal and substantive oppor­ tunity limit our understanding of discrimination in hiring practices and constrain attempts to understand or achieve equality in the workplace and beyond. The arguments rest on the idea that difference is itself cast as a dilemma when there are only two policy options, both of which assume the same end goal of assimilation into the existing structures. The concept ‘dilemma of difference’ captures the idea that the ‘different’ person is forced either to deny the difference and perform the activity in the same way according to the same rules or to affirm the difference and be put in the position of arguing for different or prefer­ ential treatment and be marginalized on the basis of this. Both options mean that members of disadvantaged groups are allowed in and expected to perform within a structure in which norms, hierarchies, and relations of power are assumed, accepted, and respected. Feminists have argued that without challenging workplace structures and hier­ archies, affirmative action measures only succeed in perpetuating a status quo in which assimilation is the aim and different perspectives are misunderstood, deva­ lued, and resisted. This brief discussion of affirmative action reflects the broader debates that were taking place among feminists who began to question the liberal framework within which policies were being advocated and implemented. The questions were important for uncovering the

underlying assumptions that placed women so that they had to demonstrate either their sameness to or their difference from those who already had privileged access to job opportunities or held positions of power in entrenched business practices and workplace structures. The questions also opened up a space for beginning the inquiry into which women benefited from these positive measures and which women were still left on the margins and excluded from what counted as worthwhile or privi­ leged jobs and status. Whereas the debates on affirmative action are no longer alive in the current context of anti-affirmative action sentiments and of the removal of many affirmative action policies in the United States and Canada, discus­ sion of the underrepresentation of women in various domains and at specific levels of status and pay continues. This discussion enters business ethics in accounts, for example, of the effects of the double workday on women’s career choices and their ability to ‘climb the corporate ladder.’ The discussion of gender differences not only continued in business ethics but also would come to the fore in the literature that emerged in and through the ethic of care introduced by Carol Gilligan in the 1980s.

Gender Differences and the Difference That Gender Makes to Business In brief, the ethic of care challenged mainstream moral theory in the liberal tradition. In contrast to accounts of universal principles and of the significance of features of impartiality, individual rights, consequences, or justice in utilitarian and deontological moral theories, care ethics emphasized the importance and relevance of context, interdependence, relationships, and responsibilities to concrete others. The key insight of the ethic of care is that liberal theory, or what is often called the justice approach, presents but one way of orienting oneself in the world and making moral decisions. Before the impli­ cations of different approaches to morality would be worked out by way of challenges to traditional moral theory, however, much of the discussion of the ethic of care revolved around the debate about whether women are indeed more caring than men. Some of the work on care as it applied to business mirrored this debate that was taking place in many other disciplines and domains of inquiry. The discussion of whether women have perspectives or offer approaches that are different from those of men has been applied to a variety of questions in business ethics. Do women pay more attention to ethical issues in the workplace than men do and, if so, can this change the workplace environment, corporate practices, or entrepre­ neurial behavior? Are women more ethical or more environmentally or socially responsible? If women’s

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managerial approaches to resolving problems are differ­ ent, can these approaches result in greater profits or in increased sales or exports? Do online advertisements of global products reflect and utilize stereotypical gendered differences in ways that promote sexism? Although much of this literature on gender differences tends to be empiri­ cal and descriptive (testing whether women are more caring or have a different approach to decision making in the business world than men do), this discussion has also had normative implications in arguments given on both sides of a number of issues – for enhancing or con­ straining profit making in businesses, for keeping or changing specific business practices, or for maintaining or revising codes of conduct. Another example of how this debate about gender differences has played out can be found in business ethics discussions of education and pedagogy in business schools. Does the training that business students receive uphold masculine norms and values and interfere with or undermine attempts to instill values and virtues that can operate in the world beyond business schools? Does it matter whether business ethics is taught, and does the teaching of it affect women and men differently? If it has a different effect, what does this mean for business ethics education and for changing how business is conceived, organized, and practiced? Is the love of money closely tied to unethical behavior, and does mandatory education in business ethics change student conceptions of or their propensity to engage in unethical behavior? Do gender differences affect judgments about the unethical conduct of corporate versus consumer actions and make it more likely that men, rather than women, will excuse unethical conduct in the latter? Although it may seem that the study of gender differences is specific to the North American context, a survey of articles in Journal of Business Ethics, for example, reveals not only that the kinds of gender differ­ ences that are discussed remain constant but also that data on these differences is collected in areas throughout the world. The charge of essentialism that this research exploring gender differences would garner would not only expand the work begun by Gilligan on the ethic of care but also change the face of feminism. Against essentialism, femin­ ists would argue that women are not only women as such but that gender intersects with one or more factors of race, class, ethnicity, disability, sexual orientation, age, and so on. They would argue that the intersection of these factors calls for paying attention to the specificity of experiences of different others and for designing policies effective for addressing inequalities experienced by women at the intersection of multiple kinds of oppression. That different kinds of oppression intersect makes it difficult to privilege gender or to identify one factor or set of similarities experienced by all women. It also makes it necessary to use multipronged and integrated

approaches of describing kinds of oppression in the con­ texts in which they occur and of endorsing strategies and policies for dismantling domination in all its forms. As with many other disciplines and areas of study, these developments would influence how gender in business ethics was explored and discussed – with respect to both expanding and complicating the meaning of gender within and beyond Western contexts and working out the implications for business in a globalized world. Although there is no one feminist theory that has emerged to incorporate these developments, some of this work of broadening the discussion and application of gender is found in feminist literature that attempts to develop care into an ethic in its own right. This literature, commonly referred to as relational theory, puts aside the issue of whether care is gendered to develop a body of theory that extends the application of care from the moral to the political realm, from personal to public relation­ ships, from the local to the global, from feminine to feminist virtues and values, and from issues of gender to issues of power and oppression more generally. With respect to business ethics, the realm of normative issues expands to include discussions of what should be of value in people’s lives, in communities, and in the world as a whole. In the process, prevalent norms and assumptions about the value of market structures in an account of human well-being that focuses on increasing job oppor­ tunities, maximizing profits, or producing more and better consumer goods are questioned. Although not all business ethics textbooks or journal articles reproduce or represent work reflecting this deeper and more critical analysis of the way that business is conceived and conducted, it is important to outline some of the insights in this feminist literature that is critical of the workings of business in the contemporary context of globalization. Before providing this outline, however, it is useful to provide a brief description of globalization.

Globalization and Implications for Gender In general terms, globalization is a concept that captures the phenomenon of increased cross-border flows of things such as technology, trade, information, markets, capital, and people. As varied and broad as the meaning of globa­ lization is, however, the normative issues have tended to focus on the overarching factor of economic globalization with its omnipresent impact on people and business. Current antiglobalization protests and movements have made people aware of the negative effects of economic globalization: the exploitation of workers in poor coun­ tries by multinational corporations in rich countries and the destruction of families and communities in resourcerich countries by big corporations. However, not every­ thing that has emerged from increased economic

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globalization and the proliferation and power of multi­ national corporations and international financial institutions has been or needs to be harmful or damaging to people, communities, or countries. Larger and more open markets have provided jobs for people where little opportunity existed before and this has, in turn, increased levels of health, education, and well-being for women, children, and communities. This brief discussion of the workings of economic globalization confirms that there is no single approach to gender and globalization or a comprehensive list of gender issues in the global context. Yet, those feminists who explore the impact of globalization on women’s lives agree on at least three key features: the importance of a contextual analysis that provides detailed descriptions of the places, people, and social, political, and economic structures; the centrality of relationships and of a critical analysis of relationships of power of all kinds and at all levels; and the uncovering of the dominant norms of global markets, corporations, and capitalism that structure major aspects of economic globalization and shape its effects on people. The relevance of gender to business practices and conduct reflects this growth and develop­ ment in feminist theory as it applies to the discussion of the overarching effects of economic globalization on women’s lives. Feminist economists as well as those working in the areas of care ethics or global, transnational, and postcolo­ nial theory have argued that business practices and conduct need to be understood in and through an analysis of relationships of power both at the macro level of relationships at the global level and at the micro level of relationships in particular locations. These feminists reject ahistorical and universal accounts of experiences shared by women, whether of Third World women or of all women in the workforce, and instead allow common­ alities to emerge from detailed descriptions of the concrete realities of the lives of women in specific con­ texts. They argue that many structures and processes in the global economy have had and continue to have a detrimental impact on women in domains such as the workplace, education, and health care and for women’s social, political, and economic status and participation. They point to the ways in which relationships of power at the global level often intersect with and utilize relation­ ships of oppression at the local level. In meeting the goal of increasing profits, multinational corporations can hire those who are the most marginalized and the least likely to complain about low wages. They show how economic globalization exploits formerly colonized countries at the same time as it reshapes the lives of people in and the futures of those countries. In meeting consumer demands for goods in rich countries, corporations can extract nat­ ural resources from poor countries that are powerless to dictate the terms or the practices.

These sorts of descriptions of some of the workings of economic globalization are used to explain a range of issues affecting women: how global corporations often employ gendered, racialized, and class divisions in parti­ cular locations in their hiring and business practices in order to maximize profits; how a global market in care work allows rich people in First World countries to exploit care workers from Third World countries who need to support families in their home countries; how governments and international financial institutions that compete to attract multinational corporations to move to specific countries often encourage what is now described as a ‘race to the bottom’ with respect to pay and condi­ tions for already marginalized workers; or how corporations restricted by environmental protection leg­ islation in rich countries can avoid these costs by moving to poor countries anxious to attract business and under pressure not to introduce or implement regulations. In contrast with earlier discussions of affirmative action or of increasing women’s participation in the work­ place, these new developments in business ethics suggest that women’s well-being or opportunities are not always improved when their presence in the workforce is per­ mitted or increased. Whereas capital and multinational corporations are very mobile, labor is not. This and the fact that labor is a key ingredient in the maximizing of profits and the minimizing of costs can explain why multinational corporations move quickly and easily across borders at the expense of the relative immobility of labor. Moreover, who gets to work and what work they get to do are dictated not only by multinational corporations mov­ ing into particular locations but also by social norms and the perceptions and self-perceptions of workers and non­ workers in those locations. Factors such as the absence of day care or the presence of norms about the gendered division of labor can force women to add working outside the home to their already existing work of caring for children. The resulting reduced time for child care can then have a detrimental effect on things such as infant mortality and health. This feminist work that examines women’s work in the global economy is reshaping both the conceptual terrain of these issues and the policies being framed and advocated by national and international organizations.

Business Ethics and Gender Issues in a Global Context As mentioned previously, these feminist critiques of eco­ nomic globalization are deep and penetrating and have not always been reflected in the mainstream literature on business ethics. Globalization as it affects women workers is being explored in business ethics journals that cover a range of issues about how to improve rather than question

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women’s roles and interactions with global businesses and institutions. A survey of this work shows that there are studies of codes of conduct and their role in improving conditions for women workers throughout the world. There is literature on the barriers that women executives and managers face when the phenomenon of the glass ceiling manifests itself in new ways in the global economy. There is also literature on the barriers associated with women’s lack of access to mentors, role models, or net­ works of power and influence in a world of multinational corporations. From these sorts of discussions of women in business emerge a series of questions with normative implications that tend to dominate the mainstream litera­ ture in business ethics. What difference does this lack of access to managerial positions or role models make to the career development of global female managers? What policies and practices can organizations develop to change women’s experiences of exclusion? Do the transnational processes of multina­ tional corporations magnify differences in what is possible with respect to corporate careers or personal and family relationships? Are there connections between the underrepresentation of female talent in top management in the global economy and their underrepresentation in the top business schools? How do gender roles that are entrenched and strongly defined in particular cultures and contexts affect women’s status and their participation in management and the public sphere more generally? Do barriers to women’s participation in business systems persist even as their participation in political roles has improved? If they do persist in some contexts, how is this related to national and transnational systems and policies? Are there policies and strategies that might help women take better advantage of opportunities in the expanding global marketplace? Does globalization have different impacts on actors from different disadvantaged socioeco­ nomic and geopolitical groups? Can laws at the national or international level work to improve women’s work with respect to status, roles, and conditions? On this last question, it can be said that globalization undermines the idea that laws and policies can or should be restricted to what states do within their borders and for their own citizens. At the national level, factors such as conservative social norms, the absence of labor protection laws, the rise and fall of currency levels, high unemploy­ ment, environmental disasters, persistent poverty, political corruption, and civil unrest can powerfully affect a country’s ability to address the exploitation of its workers by multinational corporate employers or environmental destruction due to the overextraction of natural resources by large corporations. With the emer­ gence of corporate power and influence came a decline in the willingness of governments to implement labor, environmental, and human rights standards of business conduct. This gap in the willingness of corporations and

countries to promote and implement legislation and reg­ ulation is now being filled by voluntary sector and nongovernmental organizations that track and monitor business conduct with the goal of influencing and chan­ ging the standards and practices of multinational corporations. Organizations such as Greenpeace, the World Wildlife Fund, Amnesty International, and Human Rights Watch work to educate citizens and mobi­ lize public opinion in ways that put pressure on multinational corporations to engage critically with ethi­ cal issues underlying their business practices. Increasingly, multinational corporations are complying with and even endorsing legislation that regulates their practices and policies as a means to increase their sales and profits. The idea is that public awareness of business practices makes it profitable for businesses to show that they are socially responsible. Along with these developments in business ethics is an exploration of the role of transnational cooperation and regulation and of the need for international agreements designed to address some of the detrimental effects of economic globalization. This turn in business ethics to international agreements makes use of the existing dis­ course on human rights to argue that businesses have an ethical obligation to respect human rights as set out in international documents. International documents and codes of ethics now being devised for business are incor­ porating insights and developments from a human rights discourse that has expanded over the decades to include specific attention to women’s rights and the right to development. The incorporation of human rights into codes and agreements about business standards and con­ duct can be found in a number of places and documents. ‘‘Global Compact: Corporate Citizenship in the World Economy’’ is a United Nations initiative proposed in 1999 and launched in 2000. It is conceived as a contract that binds countries that sign it to a commitment to ‘‘reconcile the creative forces of private entrepreneurship with the needs of the disadvantaged and the requirements of future generations.’’ The document supports nine universal principles in the areas of human rights, labor, and the environment, all with the goal of achieving a more sus­ tainable and inclusive global economy. Derived from the Universal Declaration of Human Rights, the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work, and the Rio Declaration on Environment and Development, the nine principles incorpo­ rate some of the concerns covered in this article’s survey of gender issues in business ethics by identifying items such as the need for businesses to ‘‘make sure their own corporations are not complicit in human rights abuses’’ and the need for labor standards in business that aim at ‘‘the elimination of discrimination in respect of employ­ ment and occupation.’’

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Although these developments may not signal a radical shift because the goal of business as maximizing profit is still assumed and accepted, by adopting standards designed to limit the business conduct of individuals and organizations, these developments signal a more compre­ hensive and explicit connection between business and ethics than has been the case in the early literature. Now found within the same international business codes of ethics are lists that juxtapose values such as ‘‘wealth maximization for all stakeholders’’ and ‘‘operation in a free market society’’ with values such as ‘‘human rights and social justice’’ and ‘‘community benefits.’’ It can be said, however, that the feminist critiques of wealth maximization and free markets still have a role to play in a business ethics that now acknowledges the relevance of gender and other kinds of oppression to the conduct, structure, and operation of business. What can also be said is that the contemporary context of globaliza­ tion has presented and will continue to present issues and challenges for business ethicists. This article has tried to show that the standard set of questions about the underrepresentation, discrimination, and exploitation of women in business are important and are still being raised. However, these questions are made more complex as a result of challenges from within feminism about the very meaning of gender and the resulting need to move the examination of gender beyond Western norms and assumptions about women’s oppression. They are also made more complex in a global context of permeable borders that influence and shape the policies and practices of business, the workplace, and trade relations and in ways that often have a differential and detrimental impact on women. Finally, these questions also take on renewed urgency in a world in which issues of a global economic crisis, the collapse of financial institutions and markets, environmental degradation, and poverty are evermore prevalent and pressing. See also: Business Ethics, Overview; Economic Globalization and Ethico-Political Rights; Professional Ethics.

Further Reading Beauchamp TL and Bowie N (1988) Ethical Theory and Business, 3rd edn. New Jersey: Prentice Hall. Benerı´a L, Floro M, Grown C, and MacDonald M (2000) Introduction: Globalization and gender. Feminist Economics 6: vii–xviii. Cragg W (2005) Business ethics. In: Cragg W and Koggel C (eds.) Contemporary Moral Issues, 5th edn., pp. 464–526. Toronto: McGraw-Hill Ryerson. Donleary G (2008) No man’s land: Exploring the space between Gilligan and Kohlberg. Journal of Business Ethics 80: 807–822. Gilligan C (1982) In a Different Voice: Psychological Theory and Women’s Development. Cambridge, MA: Harvard University Press.

Ibeh K and Carter S (2008) Editorial: Perspectives on women, globalization, and global management. Journal of Business Ethics 83: 1–3. Kabeer N (2004) Globalization, labor standards, and women’s rights: Dilemmas of collective (in)action in an interdependent world. Feminist Economics 10: 3–35. Koggel C (2003) Globalization and women’s paid work: Expanding freedom. Feminist Economics [Special Issue: Amartya Sen’s Work and Ideas] 9: 163–183. Minow M (1990) Making All the Difference: Inclusion, Exclusion and American Law. Ithaca, NY: Cornell University Press. Mohanty C (1997) Women workers and capitalist scripts: Ideologies of domination, common interests, and the politics of solidarity. In: Alexander MJ and Mohanty C (eds.) Feminist Genealogies, Colonial Legacies, Democratic Futures, pp. 3–29. New York: Routledge. Parpart J, Rai S, and Staudt K (eds.) (2002) Rethinking Empowerment: Gender and Development in a Global/Local World. London: Routledge. Poff DC and Waluchow WJ (1991) Business Ethics in Canada, 2nd edn. Toronto: Prentice Hall. Prieto-Carro´n M (2008) Women workers, industrialization, global supply chains and corporate codes of conduct. Journal of Business Ethics 83: 5–17. Solomon RC and Hanson K (1983) Above the Bottom Line: An Introduction to Business Ethics. New York: Harcourt Brace Jovanovich. Vermier I and Van Kenhove P (2008) Gender differences in double standards. Journal of Business Ethics 81: 281–295.

Relevant Websites http://www.amnesty.org – Amnesty International. http://www.businessethicscanada.ca/home – Canadian Business Ethics Research Network. http://www.hrw.org – Human Rights Watch. http://www.ilo.org/global/lang--en/index.htm – International Labour Organization. http://www.unglobalcompact.org – United Nations Global Compact. http://www.un.org/millennium – United Nations Millennium.

Biographical Sketch Christine Koggel is the Harvey Wexler Chair in Philosophy at Bryn Mawr College. She is also Chair and Majors Advisor in the Department of Philosophy as well as Co-Director of the Center on International Studies. Her research and teaching interests are in the areas of moral and political philosophy, applied ethics, and feminist theory. She is author of Perspectives on Equality: Constructing a Relational Theory (1998), a book that brings together her interests in moral, social, political, and feminist theory. She is editor of Moral Issues in Global Perspective and of the expanded three-volume second edition: Volume 1: Moral and Political Theory; Volume II: Human Diversity and Equality; and Volume III: Moral Issues (1996). With Wesley Cragg, she has co-edited the fourth and fifth editions of Contemporary Moral Issues (1997, 2005). Her current research is in the area of development ethics, in which she has published a number of articles on topics such as equality, globalization, agency, empowerment, and advocacy.

Business Ethics and the Quality of Life A C Michalos, Brandon University, Brandon, MB, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Consequentialists Consequentialists hold that no human actions are inherently morally good or evil, but all human actions are subject to evaluation from a moral point of view. Deontologists Deontologists hold that some human actions are inherently morally good or evil. Objective indicators Statistics designating things that are not privately and directly observed but may be observed and measured by anyone (e.g., height, weight, and the number of people admitted to a hospital).

Ethical Foundations For a moral consequentialist, the connection between business ethics and quality of life is very close and direct. In general, moral philosophers may be divided into two very broad groups: deontologists and consequentialists. Deontologists hold that some human actions are inher­ ently morally good or evil – for example, murder is inherently bad, whereas telling the truth is inherently good. Consequentialists hold that no human actions are inherently morally good or evil, but all human actions are subject to evaluation from a moral point of view. The moral point of view may be based on one of the following principles: 1. Principle of beneficence: One ought to try to act so that one’s actions tend to impartially improve the quality of life of those affected by the actions. 2. No harm principle: One ought to try to act so that one’s actions tend not to harm anyone affected by the actions. Depending on how one regards one’s basic moral princi­ ples, there may not be much difference between a deontologist and a consequentialist. If, for example, a consequentialist believes that either the principle of ben­ eficence or the no harm principle specifies a kind of action that is inherently moral, then at that level the consequen­ tialist is also a deontologist. If, on the other hand, a consequentialist believes that the institution of morality is constructed by human beings, for whatever reason, then that sort of consequentialist is not a deontologist. This article is written from the perspective of the latter sort of consequentialism.

Quality of life A fairly modern term used to designate what ancient philosophers would have referred to as a good life, all things considered. Social indicators Statistics that are supposed to have some significance for measuring the quality of life. Subjective indicators Statistics designating someone’s personal feelings, attitudes, preferences, opinions, judgments, or beliefs that are directly observable only to the people having those feelings.

Assuming that one is going to try to act in accordance with the principle of beneficence, again broadly speaking, there are two ways to go: 1. One can try to improve relatively objective circum­ stances that are measured by things such as ensuring that people have access to freshwater and clean air, full employment with fair wages, cleaner and safer work­ places, and longer lives free of disability and disease, as well as elimination of poverty and homelessness and the reduction of crime. 2. One can try to improve relatively subjective circum­ stances that are measured by people’s reported peace of mind, contentment, happiness, and satisfaction. Clearly, if one’s relatively objective and subjective cir­ cumstances are improved, then the quality of one’s life is improved. Since the fifth century before Christ, people have haggled about what is objective, what is subjective, and which is more important. However, it is evidently trivially true that if one’s total circumstances are improved, one is better off and the quality of one’s life has improved. Thus, in general, one’s moral obligation is to try to act so that the quality of people’s lives is improved objectively and subjectively. Because actions performed by businesspeople are a species of human actions, morally speaking, one ought to conduct one’s business activities in accordance with the principle of beneficence. Bertrand Russell once com­ plained about John Dewey’s consequentialist moral point of view on the grounds that the latter left no moral holidays. Insofar as any human activity can be examined and appraised from a moral point of view, Russell accurately saw how intrusive Dewey’s and anyone else’s

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consequentialism can be. Unlike Russell, however, most consequentialists probably believe it is a good thing, prag­ matically speaking, to have a robust and demanding moral point of view, for businesspeople no less than for everyone else. If one believes that a world populated by people who actively try to improve each others’ well-being is prefer­ able to any other, and that the more people actively try to reach that goal, the more likely it is that the goal will be reached, then the absence of relief from the pursuit of this goal seems to be a very good thing indeed – morally, prudentially, and pragmatically.

The Quality of Life When people use the phrase ‘quality of life,’ they some­ times intend to contrast it with quantities or numbers of something. There are, then, two quite different sorts of things that one might want to refer to when using the phrase ‘quality of life.’ First, one might want to refer to sorts, types, or kinds of things rather than to mere num­ bers of things. For example, one might want to know not merely how many people were admitted to a hospital last year and for how long but also what sorts of people they were, male or female, young or old, rich or poor, and so on. When the term ‘quality’ in the phrase ‘quality of life’ is used in this sense, one may say that it and the phrase in which it occurs are intended to be primarily descriptive. Second, one might want to refer to the value or worth of things by using the term ‘quality’ in the phrase ‘quality of life.’ For example, one frequently hears of people making a trade-off between, for example, a high salary and better working or living conditions. Presumably, the exchange here involves monetary and some other value. That is, one exchanges the value of a certain amount of money for the value of a certain set of working or living conditions. When the term ‘quality’ in the phrase ‘quality of life’ is used in this sense, one may say that it and the phrase in which it occurs are intended to be primarily evaluative. Both senses of the phrase ‘quality of life’ are important. It is important to be able to describe human existence in a fairly reliable and valid manner, and it is important to be able to evaluate human existence in the same way. The philosopher Plato is still celebrated for raising the eva­ luative question at least 2300 years ago when he asked, ‘‘What is a good life for an individual person and what is a good society?’’ However, it is often forgotten that he also raised the descriptive question, ‘‘What is the nature of an individual’s or a society’s life?’’ The term ‘social indicator’ denotes a statistic that is supposed to have some significance for measuring the quality of life. The term ‘social report’ designates an organized collection of social indicators, and ‘social accounts’ designates some sort of balance sheet in which costs and benefits are assigned to the indicators in a social

report. Briefly, the main difference between social reports and accounts is that the former answers the question, ‘‘How are we doing?’’ and the latter answers the question, ‘‘At what price?’’ where price might be measured in dol­ lars, energy, personal satisfaction or dissatisfaction, or some other generally applicable medium. Social indica­ tors that refer to personal feelings, attitudes, preferences, opinions, judgments, or beliefs of some sort are called subjective indicators – for example, satisfaction with one’s health, attitudes toward exercise, and beliefs about the benefits of some therapy. Social indicators that refer to things that are relatively easily observable and measur­ able are called objective indicators – for example, the height and weight of people, number of people admitted to the hospital, and number of people dying per year.

From Pleasure and Pain to the Quality of Life There is a long historical tradition of moral consequenti­ alists that may be traced back fairly directly to Jeremy Bentham’s ideas about a ‘felicific calculus’ that would allow decision makers to calculate the net pleasure or pain connected to every action for everyone affected by that action, with public policy choices made to get the greatest net pleasure or least net pain for the greatest number of people. Because pleasure and pain are rela­ tively transient experiences, something more durable would better suit Bentham’s purpose. If happiness is regarded as a relatively long-lasting positive experience and/or attitude, then that would distinguish it from tran­ sient pleasurable mood states and would justify moving from Bentham’s greatest pleasure principle to Mill’s greatest happiness for the greatest number. For econo­ mists, utility theory is the apparent heir of Bentham and Mill. Utility theory is formally elegant and has been an enormously fruitful source of research programs in indi­ vidual and group decision making related to commercial markets, social and political relations, bargaining, conflict resolution, gaming, and scarce resource allocation in practically all areas. It is the heart of microeconomics. Unfortunately, utility theory (as is the case for many other theories) is much better on paper and in classroom exer­ cises than it is in practice, especially in public policy making. Worse, utility theory begins with revealed pre­ ferences that are the mere tips of socially, psychologically, and pragmatically constructed icebergs of more or less coherent systems of knowledge, opinions, attitudes, desires, and needs. However, for present purposes, the defects of utility theory as a psychosocial theory of per­ ceived well-being are not its major problem. Its major problem is that it merely provides information about the subjective states of people, although we know that peo­ ple’s objectively measurable circumstances are also

Business Ethics and the Quality of Life

important features of the quality of their lives. Because, morally speaking, our commitment ought to be not merely to improving people’s (subjective) feelings and attitudes about their lives but also to improving the very (objective) conditions in which they live their lives, defin­ ing our basic principle of beneficence in terms of the quality of life seems to be most appropriate.

Critical Issues for Consequentialist Quality of Life Assessment The main disadvantage of accepting the principle of bene­ ficence as one’s fundamental moral principle is that it is far from clear how one ought to measure the quality of life for an individual or group. In fact, because the vast majority of – if not all – human actions affect other people as well as the individual actors, it is primarily the quality of life of groups that actors have to try to assess. At least since Simon’s pioneering work leading to his notion of ‘satisficing behavior,’ we have known that all attempts at thoroughly synoptic, comprehensive assessments of any human action are impossible. We are bound to stop measuring whenever we think we have measured enough for the particular problem before us. Although Simon and others seemed to think that that meant that the ideal of comprehensive assessment ought to be abandoned, Michalos argued that the ideal is still a good guide to principled and deliberate human action. One just has to grant that despite one’s best efforts, one will most likely fall short of the ideal. An ideal consequentialist assessment of the quality of life of an individual or group would have to satisfactorily address the following critical issues: 1. Affected population: Who will be affected by the action, from the actor alone to everyone else? Can one know all the people more or less affected? 2. Spatial coordinates: Across what amount of space should one look, from one’s own home to the whole world? 3. Temporal coordinates: Across what length of time should one look, how far into the future? 4. Population composition: How should the affected individuals be characterized, if at all, in terms of sex, age, education, ethnic background, income, etc.? 5. Domains of life composition: What domains of life should be examined – for example, health, job, family life, and housing? 6. Objective versus subjective indicators: Supposing one grants that both kinds of indicators are important, how should one decide exactly which kind to use for which domains? 7. Input versus output indicators: Should one measure only what one invests, what comes of the investment, or both?

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8. Benefits and costs: What particular benefits and costs should be counted, for which individuals and groups? 9. Discount rates: How much should one discount costs and benefits delivered some time in the future compared to those delivered today? 10. Measurement scales: There are usually different ways to measure the same and different things. How should one choose the best sort of scale or measuring device? 11. Distributions: How should central tendencies and variation be measured in diverse fields? 12. Interaction effects: How should one measure causal interactions in any particular array of phenomena? 13. Confidence levels: Because one often lacks com­ plete certainty regarding the truth of claims, what level of confidence should one require to accept any particular claim? 14. Research procedures: Because one’s data are as good as one’s search and research procedures, what ade­ quacy criteria should be used to assess procedures? 15. Research personnel: The procedures one uses are likely to be as reliable as the people doing the research. How should one choose one’s experts, if indeed experts are to be chosen at all? 16. Aggregation function: How should all the diverse elements of the assessment be aggregated? 17. Assessment assessor: Who should decide (audit) if the assessment is adequate or appropriate? 18. Assessment criteria: What criteria should be used to assess (audit) the adequacy of the assessment?

Some Problems In the presence of so many questions to be answered, it is not surprising that even people who share the same general approach to moral appraisal might reach different conclu­ sions about the same cases. In such cases, those who answer different questions in different ways will have to negotiate a common approach, which of course may or may not work, depending on the cases and the appraisers. Although the fundamental moral principle of benefi­ cence articulated previously prescribes a kind of act consequentialism, most consequentialists probably oper­ ate as rule consequentialists most of the time and only attempt comprehensive moral assessment when conven­ tional rules conflict or appear too blunt or unsophisticated for especially complicated cases. Apart from the difficulties in applying or operationaliz­ ing the principle of beneficence, some people might object that the principle is irrelevant to business ethics because businesspeople have their own ethical principles. This problem was addressed by Michalos. Briefly, the argument he presented was that the idea that there are different

364 Business Ethics and the Quality of Life

moral principles for different fields of endeavor (e.g., busi­ ness, baseball, and chess) is logically incoherent. Because one of the conditions for an acceptable moral theory is that it should be able to resolve conflicts of interest (without resorting to civil or criminal laws), there must be a single, supreme moral principle. Without such a principle to adjudicate between conflicting interests or lower level maxims, moral appeals are useless. When conflicts arise involving businesspeople and environmentalists, for exam­ ple, people in each group can retreat to their own special code, making it impossible to use either code to resolve the conflict. Thus, at that point, one must either reject the idea that moral theories must be able to resolve conflicts of interest or reject the idea that both of the two codes in conflict are moral codes. Because rejection of the former alternative would allow us to have useless moral theories, the latter alternative should be rejected. Thus, although there may be no objection to anyone saying that they will live by this or that code of conduct, it is nonsensical (literally logically absurd) to suppose that any old code of conduct qualifies as a moral code.

Michalos AC (1981) North American Social Report, Vol. 4: Environment, Transportation and Housing. Dordrecht: Reidel. Michalos AC (1982) North American Social Report, Vol. 5: Economics, Religion and Morality. Dordrecht: Reidel. Michalos AC (1985) Multiple discrepancies theory (MDT). Social Indicators Research 16: 347–413. Michalos AC (1987) Moral responsibility in business. In: Poff DC and Waluchow W (eds.) Business Ethics in Canada, pp. 12–25. Scarborough, ON: Prentice-Hall Canada. Michalos AC (1991) Global Report on Student Well-Being, Vol. 1: Life Satisfaction and Happiness. New York: Springer-Verlag. Michalos AC (1991) Global Report on Student Well-Being, Vol. 2: Family, Friends, Living Partner and Self-Esteem. New York: Springer-Verlag. Michalos AC (1993) Global Report on Student Well-Being, Vol. 3: Employment, Finances, Housing and Transportation. New York: Springer-Verlag. Michalos AC (1993) Global Report on Student Well-Being, Vol. 4: Religion, Education, Recreation and Health. New York: SpringerVerlag. Michalos AC (1995) A Pragmatic Approach to Business Ethics. Thousand Oaks, CA: Sage. Michalos AC (2003) Essays on the Quality of Life. Dordrecht, The Netherlands: Kluwer. Michalos AC (ed.) (2005) Citation Classics from Social Indicators Research. Dordrecht: Springer.

Relevant Website Conclusion The aim of this article was to show how business ethics is connected to the quality of people’s lives. For a consequen­ tialist moral theory based on the principle of beneficence, the connection is close and direct. Although such a theory certainly has its disadvantages, they are not more trouble­ some than the disadvantages of other theories. See also: Consequentialism and Deontology.

Further Reading Michalos AC (1978) Foundations of Decision-Making. Ottawa, ON: Canadian Library of Philosophy. Michalos AC (1980) North American Social Report, Vol. 1: Foundations, Population and Health. Dordrecht: Reidel. Michalos AC (1980) North American Social Report, Vol. 2: Crime, Justice and Politics. Dordrecht: Reidel. Michalos AC (1981) North American Social Report, Vol. 3: Science, Education and Recreation. Dordrecht: Reidel.

http://www.isqols.org – International Society for Quality-ofLife Studies

Biographical Sketch Alex Michalos is a former Chancellor of the University of Northern British Columbia (UNBC; 2007–10), Emeritus Professor in Political Science from UNBC, and currently Adjunct Professor of Philosophy at Brandon University. He has published 24 books and more than 100 refereed articles, and he has founded or cofounded six scholarly journals. He is former President of the Canadian Commission for UNESCO’s Sectoral Commission on Natural, Social and Human Sciences; former President of Academy II (Humanities and Social Sciences) of the Royal Society of Canada; and former President of the International Society for Quality of Life Studies. He has won several awards of distinction, including the Gold Medal for Achievement in Research (2004) from the Social Sciences and Humanities Research Council of Canada (the Council’s highest honor).

Business Ethics, Overview J D Rendtorff, Roskilde University, Roskilde, Denmark

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Jennifer Jackson, volume 1, pp 397–412, ª 1998, Elsevier Inc.

Glossary Corporate citizenship This is a way to define the obligations of a corporation toward society. Corporate legitimacy The level of public and social acceptance of a corporation in society. Corporate social responsibility (CSR) The accountability and level of responsibility of a corporation toward society. Institutional theory A main-stream approach in organization theory that is often used as a

Definition of Business Ethics Business ethics is defined as the theory and practice of the responsibility, ethics, and legitimacy of corporations in a globalized society. As stated by the French philosopher Paul Ricoeur, the aim of ethics is ‘‘the good life for and with the other person in just institutions’’ (Ricoeur, 1990 : 202). Business ethics applies this aim to corporations, organizations, and other contexts of professional life in institutions. At the institutional level, business ethics deals with the ethical theory of actions of corporations and orga­ nizations. This leads to the application of Aristotelianism, Kantianism, and Utilitarianism, and other ethical theoretical frameworks to the context of business. At the level of protection of individuals, this may include ethical principles such as protection of the four ethical principles of protection of the human person: autonomy, dignity, integ­ rity, and vulnerability, as proposed by Rendtorff and Kemp. A distinction can be made between meta-ethics and descriptive and normative business ethics. As normative theory, business ethics deals with ethical issues at differ­ ent levels of society, individuals, organizations, and market institutions. Business ethics is closely linked to the different dimensions of corporate social responsibility (CSR), including economic, legal, ethical, and philanthro­ pic responsibility, as suggested by Caroll. In this sense, business ethics and corporate social responsibility is not only relevant at the level of human personal choices, but it is indeed necessary to construct common values and concepts of responsibility for business organizations and institutions in order to justify the old saying that ‘‘good ethics is good business’’ as a reaction to the opportunistic

basis for analyzing the role of business corporations in society. Stakeholder Concept defining the interested parties that are affected by or affect a corporation. Triple-bottom-line This concept refers to the idea that a corporation has not only economic obligations, but it should also care for its environmental and social impact on society. Values-driven management Management that is related not only to economic efficiency, but also to a number of social and ethical values.

challenge of economic theories of individualist utility maximization. On this basis, business ethics can be separated from moral convictions about business. While morality can be defined as the values, norms, and moral points of view that we have in ordinary life, business ethics can be defined as the deliberation about decisions and the justification of specific norms and decisions in relation to decision making in business. Values-driven or values-based management is closely linked to business ethics because it represents an effort to formulate ethical values for the mission and strat­ egy of the business corporation. Therefore, CSR can be defined as an integrated part of business ethics and valuesdriven management, because it relates to the mandatory and voluntary responsibility that a corporation can assume in relation to its internal and external stakeholders and constituencies. Corporate citizenship can be conceived as the fundamental concept that at a fundamental level joins business ethics, values-driven management, and corporate social responsibility. Corporate citizenship expresses the necessary involvement of the corporation as a good citizen in society who realizes that contribution to the common good of society is an essential element of good and ethical business relations. Practical issues and cases within the field of business ethics may involve the following topics: Integrity, honesty, truthfulness and fairness in business organizations; issues of bribery and corruption, violation of trust, and conflicts of interests; fraud, manipulation, and theft; the ethics of the market (e.g., anti-trust legislation); corporate governance and investor protection; stakeholder management and fidu­ ciary duties to stakeholders; the ethics of reporting,

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accounting and auditing; the ethics of finance (e.g., corpo­ rate mergers and hostile takeovers); ethical issues in relation to particular fields of business, (e.g., pharmaceuti­ cal companies or biotechnology firms); the ethics of entrepreneurship; the ethics of supplier relations including screening of suppliers for violation of ethics rules; social responsibility of business (CSR) in different fields of busi­ ness; ethical issues of values and ethics in human resources and organizational culture; globalization, cultural differ­ ence and respect for human rights; socially responsible investments (SRI); work ethics, workers’ rights, and work­ ers’ democracy; employee ethics (privacy protection, discrimination or affirmative action); ethical leadership and ethical behavior of managers; ethical relations to cus­ tomer and clients, including the political consumer and protection of consumer interests; ethical protection of the environment and of ecological systems; ethical accounting, social accounting, and environmental accounting; public relations and ethics of branding (social legitimacy of corporations); the relation of the corporation to the local community (contribution to the local community); corporate philanthropy and gifts to local communities; foundations of values; values, ethics, and political theory; history of business ethics and values of social and economic systems; and, business ethics in processes of globalization and internationalization of world cultures.

Integrative Economic Business Ethics The methodology of business ethics is multifaceted, but many approaches can be considered such as critical philo­ sophy combined with an interdisciplinary institutionalist approach, as proposed by Powell and DiMaggio and applied to economic and social sciences. Institutional sociology and economics provide the social science back­ ground for evaluating ethical issues in corporations and organizations. Business ethics mediates between structural and intentionalist explanations of causalities of actions in institutional theory. It uses different concepts of institu­ tions and organizations in the managerial sciences as the background for the analysis of particular issues and cases of business ethics in corporations. At the same time, as critical philosophy, business ethics goes beyond mere institutional analysis and proposes a normative perspective of applied ethics and analysis of ethical argument as the basis for discussion of business decisions, strategies, and actions. Business ethics is usually defined as a normative study of what norms should guide decision making and corpo­ rate social responsibility in business and economics. This applies simultaneously at the micro, meso, and macro levels of organizational behavior, corporations, business systems, and market structures and influences the politi­ cal economy of different societies or states. Business ethics includes a critical evaluation of formulations of guidelines

and codes of conduct for companies in national and inter­ national markets. In this sense, business ethics also implies a critical evaluation of different concepts of managerial economics, in particular of neoclassical economics of efficiency and utility and it leads to a broader interdisciplinary, institu­ tional, and historical perspective on the norms and values of corporations. A constant issue for discussion is the problem of whether business ethics remains an oxymoron and as such is impossible because, as Milton Friedman put it, ‘‘the social responsibility of business is to increase its profits,’’ or whether we should go beyond this neoclassical idea toward closer integration of business, economics, and ethics. Accordingly, most business ethics theorists go beyond a strict neoclassical position and argue that busi­ ness has social and ethical responsibilities that cannot be reduced to profit concerns but rather precede profit max­ imization as the firm’s fundamental license to operate. Business ethics in the tradition of Harvard Business School is based on case studies of corporations and eva­ luation of possible scenarios for decision making based on ethical theory. We can further observe the use of quali­ tative economic arguments to inform business ethics and arguments in a business ethics strategy. However, although it recognizes the explanatory potential of quali­ tative and quantitative social sciences, business ethics does not think that descriptive positivist economics is sufficient. The concept of integrative business ethics is an impor­ tant characteristic of the efforts of business ethics scholars to mediate between ethics and political and economic rationality. This integrative approach can be considered the application of the different ethical theories of Aristotelianism, Kantianism, and Utilitarianism as a dif­ ferent basis for ethical reflection on the foundations of economics as a truly value-creating science. The Aristotelian approaches consider the corporation as a practical community aiming at the good of its mem­ bers and society. Solomon argues that this approach is based on the Aristotelian concepts of practical reason (phronesis) and integrity that are applied in the under­ standing of ethical issues in business. As suggested by Bowie, the Kantian approach starts from the Kantian deontological theory and proposes the categorical imperative as the foundation for decision making in busi­ ness. Utilitarian or pragmatic approaches are widely proposed and they are based on mainstream utilitarian (Bentham or Mill) or American pragmatism. A more recent approach is the idea of integrative social contract theory by Donaldson and Dunfee that mediates between Aristotelian, Kantian, and utilitarian approaches. We have also recently seen how the stakeholder theory by Edward Freeman has been worked out in the perspective of Rawlsian theory of justice, as suggested by Philips. In addition, there have been a number of emergent critical

Business Ethics, Overview

perspectives on mainstream business ethics coming from Marxism, feminist theory, poststructuralism (Foucault and Derrida), and phenomenology (Levinas). Accordingly, business ethics integrates the rationalities of different philosophical theories with the perspectives of social sciences, law, economics, and politics in order to promote environmental, social, and economic sustainabil­ ity and the good life of humanity. Here the efforts to support the idea of the triple bottom line of the three Ps of people, planet, profit, as suggested by Elkington, is an important element of business ethics. Integrative business ethics as showed by Lynn Sharp Paine is not only about external limitations on business activity, but it also implies internal guidance for economic value creation. It implies not only a deontology of correct business rules but also an argument for the value shift toward a morality of just institutions of free economic markets. We can perceive the emergence of a close link between ethics and economics as new strategy for corpo­ rate social responsibility and moral management. However, there still remains a tension between ethics and economics, as stated by Amartya Sen. Therefore, we need external political and legal constraints on economic markets. Ethics is the foundation of economic action. At the same time, we should admit that there is an ethical dimension within economic notions of utility and effi­ ciency, which should be taken into account when dealing with the ethics of economic markets. Therefore, there may be an economic dimension to ethics, and ethics and economics are in a dialectical relation where they mutually shape one another. In light of economic anthropology, this implies a critical examination of the concept of ‘homo economicus’ of egoistic utility-maximizing individuals in traditional economic theory. According to most business ethicists, economic anthropology should instead be considered in the perspective of ethical liberalism where individuals interact in complex networks of reciprocity in a social community. Accordingly, economic action is based on the Aristotelian vision of the ‘‘good life in community with and for the other person in just institutions,’’ according to Ricoeur. This vision is evaluated in the Kantian perspec­ tive of universal rules of the categorical imperative. Utilitarian welfare analysis is only possible in the per­ spective of this framework of Aristotelianism, taking into account the deontological rules of the categorical impera­ tive of Kantian business ethics.

The Values of Business Corporations When we deal with case studies in business ethics, we can say that it is the philosophical concept of judgment that is the framework of specific case studies. The methodology of judgment may be based on Aristotelian practical

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judgment, hermeneutics, Rawlsian reflective equilibrium, or Kantian reflective judgment. It is the task of such a determinate and reflective judgment in case analysis to make the bridge between micro- and macroeconomic rationality for convenient application of ethical theories and principles to concrete situations of choice and deci­ sion making in business organizations. This is the foundation for the concept of the rationality in business ethics that we can call moral management or ethical leadership in the perspective of cosmopolitan business ethics giving business ethics and international and global application. Therefore business ethics is not only about internal market behavior, but also about finding external principles of political governance to regulate economic markets. Accordingly, we can say that a view of justice as expressed in the concept of corporate citizenship, for example, John Rawls’ concept of justice, is necessary as the ultimate horizon of business ethics. On the basis of the theories of business ethics and the principles of its concrete application, we can observe application of business ethics and corporate social respon­ sibility reflections with regard to internationalization in global society. In particular, there has been a demand for ethics in leadership and governance. Such moral manage­ ment in corporations can be considered to be important in order to formulate universal norms for different cultures and to cope with economic and social changes and devel­ opments in international markets as a consequence of increased globalization. In the age of global capitalism, companies have increased power and responsibility to contribute to social values and sustainable development. Emergence of global publics and media awareness present a challenge to companies to deal responsibly with issues of human rights and the environment. From the institu­ tional and ethical perspective, the result of these social expectations of corporations has been the emergence of norms of a global civil society with its own laws and norms. Development of codes of conduct and policies of moral management represent the contribution of corpora­ tions to the establishment of these norms of civil society to reinforce the social foundations of economic interactions. To conceive the function of morality in management or ethical leadership, we can also observe applications of the concept of value to business management and discus­ sions of its role in business ethics, as has been analyzed by Driscoll and Hoffman. An ethical vision of values and moral management is necessary. This discussion of values, organizations, and management can be related to the problem of how to define the meaning, function, and goal of values in organizations. There are many different values in organizational life and it is the role of business ethics to clarify the relation between these different values in the institutional perspective. As the basis for individual action, institutions and organizations reflect values in their culture and decision-making structure.

368 Business Ethics, Overview

The values of economizing, power aggrandizing, and ecologizing put forward by Frederick have, in this context and on a naturalist basis, been proposed as the original values of the corporation. This debate on values in organizations implies discus­ sions of the relation between economic, legal, social, and ethical values. The question is how these values should be realized in moral management and business ethics. We need a reflective view of morality that attempts to over­ come the danger of management ideology and we need to conceive of ethics as the integrating force of business life. Moral management is about the good life in organizations based on universal norms of responsibility seeking to find the right balance between individuals and organizations and indeed between corporations, society, and political democracy as a republican society. The Swiss scholar Peter Ulrich calls this Republican Business Ethics. The concept of the good citizen corporation has been important in the debates in European and U.S. business ethics. The different approaches to business ethics and values-driven management, including integrated contract theory, may be viewed as steps toward a comprehensive concept of business ethics as the basis for good corporate citizenship in modern complex societies. This social responsibility and responsiveness is at the forefront of the firm’s license to operate. Responding to the expecta­ tions of different stakeholders, good citizen corporations are involved in public reasoning and deliberative public communication. The different theories of business ethics coming from Aristotelian, Kantian, or Utilitarian sources provide us with the values that define the core of moral management of responsible corporations in democratic societies.

Application in the Fields of Business Ethics In particular, with the challenge of sustainable develop­ ment of the world community facing environmental problems and climate crisis there has been a focus in business ethics on values of green business and on the triple-bottom-line. Corporate social responsibility, busi­ ness ethics, and social and ethical accounting are among the practices of corporations based on policies of leader­ ship that include different stakeholders and demand stakeholder salience. This framework is also applied in relation to the firm’s internal and external constituencies. Internal stakeholders and other constituencies include owners, investors, management, and employees. Among external stakeholders and constituencies, we can include relations with other businesses, consumers, marketing and public relations, and relations with the local community. Moreover, in the perspective of sustainable development and concern for a triple-bottom-line of economic, social,

and environmental responsibility, the relations of the firm to the environment viewed as a stakeholder are included in the business ethics of the firm. The idea of justice as fairness is an appropriate frame­ work for inclusion of stakeholders in corporate decision making. Basic ethical principles of autonomy, dignity, integrity, and vulnerability are important expressions of the concept of justice as fairness. These basic ethical principles can be directed toward protection of human persons in organizational structures. Therefore, it is con­ sidered important to move from corporate social responsibility (CSR1) to corporate social responsiveness (CSR2). Corporate social responsiveness lays emphasis on the company’s practical contribution to social manage­ ment rather than on its capacity to talk about it. Corporate social responsiveness is not only about government initia­ tive to make incentives for social responsibility, but also proposals for corporations to make concrete contributions to social betterment. Business ethics is not only about ideal theory but must be realized in concrete practice and make a difference for good management strategy. Analyzing relations to internal constituencies of the corporation, we can perceive how ethical values are mixed with the original natural values of economizing, power aggrandizing, and ecologizing. In addition to the perspective of the ethical principles, relations to internal constituencies were investigated in light of the tension between economic rationality and ethical rationality. The relation to internal stakeholders can also be viewed in relation to the theory of the firm in business economics. Moreover, issues of corporate governance between share­ holders and stakeholders, ownership, and the ethics of finance, socially responsible investments and the ethics of the workplace can be analyzed in the perspective of corporate social responsibility, sustainability, justice as fairness, and ethical principles for protection of the human person. In particular, the need for respect of the dignity and integrity of the human person in the work­ place, for example, by promoting workplace democracy and participatory rights, is an important issue in the dis­ cussion of business ethics. Concerning the business ethics of external constituen­ cies, we can emphasize the importance of social responsiveness and the application of ethical principles to the ethics of not only consumers and customers, but indeed more generally to the ethics of public relations with governments and the local community and to the building of norms and trust relations to civil society. Indeed, the efforts of developing new proposals for accounting ethics and triple-bottom-line reporting are important for establishing such relations. Accounting ethics is an instrument to improve transparency and trust, but it is also an instrument to create knowledge and reflective self-perception of the firm. Such multilevel measurement of the firm’s performance can also be

Business Ethics, Overview

developed in the strategies of the firm’s moral manage­ ment, implying repeated dialogue with the firm’s different stakeholders. There are many important international initiatives to improve accounting ethics, but much remains to be done in order to develop general interna­ tional standards. Environmental issues related to the question of sus­ tainable development are indeed very important applications of stakeholder management and ethical prin­ ciples. Within the framework of responsibility and sustainability, the ethical principles of protection of dig­ nity, integrity, and vulnerability emerge as central values for environmental business ethics. From the point of view of environmental ethics, corporate social responsibility means how organizations relate ethically to animals and nature. Environmental ethics has an institutional dimen­ sion insofar as it deals with the relation between organizations and nature, searching for means to integrate bioethics, environmental ethics, and business ethics. In this context, we can propose basic ethical principles for interpreting the concept of sustainable development in the perspective of triple bottom line management. Environmental ethics of organizations should not be con­ ceived only in light of utility and enlightened selfinterest, but rather include principle-based accounts of the intrinsic value of nature and animals. To efficiently meet the quest for environmental ethics, development of compliance programs for environmental protection is an important way to increase corporate responsibility for protection of the environment. The symbolic nature of criminal law can help increase the efficiency of such a requirement of compliance with high environmental standards.

International Political and Legal Developments Different legal strategies have been developed in the United States, Europe, and in the international commu­ nity that document this normative framework for the role of corporations in society. They express the difference between the different approaches to moral management and corporate social responsibility in different countries. In the United States, the legal system has been used extensively to create a strong legal framework for promo­ tion of ethics and compliance programs. In 1991, the United States Federal Sentencing Guidelines for Organizations (FSGOs) were enacted by Congress. FSGOs represent a strong combination of carrot and stick measures to motivate and enforce corporations in establishing compliance and ethics programs. The FSGOs were decisive in creating more focus on corporate ethics and organizational integrity. This development was con­ tinued with the recent Sarbanes-Oxley legislation on

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corporate governance, transparency, and accountability after the Enron and World Com scandals. Furthermore, there have been discussions of the need for increased legislation after the scandals following the financial crisis in 2008. The U.S. focus on legislation has increased cor­ porate awareness and focus on employees’ ethical behavior. Such compliance and ethics programs are a new development of corporate law considering regulation as dialogue and self-regulation rather than strict enforce­ ment of state power. Moreover, FSGOs may be considered a reinforcement of the legal subjectivity of corporations. Different legal strategies have been devel­ oped in the United States, Europe and in the international community. They illustrate that we can observe the development of a normative framework of business ethics and corporate social responsibility as the foundation for understanding the role of corporations in society. European initiatives with regard to moral management and corporate social responsibility have been promoted from the 2001 document ‘‘Promoting a European Framework for Corporate Social Responsibility: Green Paper.’’ This docu­ ment was followed by a communication about corporate social responsibility from the European commission and the establishment of the European Stakeholder Forum. The ideas of voluntary self-regulation and stakeholder dia­ logue are central to the legislative approach of the European Commission. The legislative framework of the European approach is much weaker than the guidelines that have been implemented in the United States. The emergent European paradigm of corporate social responsibility focuses on developing a new morality of ethical virtue rather than direct legal enforcement. As such, the European Union’s approach attempts to reflect the traditions of corporate social responsibility and engagement in local community, which is central to the business tradition of European socie­ ties. There is an effort to develop a culture of virtue where ethics is an integrated part of business economics and man­ agement. To avoid criticism as an instrumental tool, we can say that basic ethical principles are integrated into corporate social responsibility as in element of postconventional virtue morality in European social economies, as defined by the French scholar Gilles Lipovetsky. This process of creating norms and legal rules of corporate social responsibility in the United States and Europe is part of an effort to establish global and interna­ tional norms and guidelines of business ethics. To succeed it is important that these norms be extended to be valid throughout the global market. Liberalization of interna­ tional economics and business requires greater ethical responsibility among corporate actors in international relations. We can perceive the institutionalization of international regimes of business ethics based on univer­ sal rules and human rights as a moral minimum while leaving space for differences in substantial norms of local cultures as long as these norms do not conflict with

370 Business Ethics, Overview

universal standards. As a normative basis for international business conduct, corporate citizenship contributes to establishing such international regimes of good norms for moral management and multinational business practice. We are moving toward the creation of a cosmo­ politan view of business ethics considering the firm as a world citizen in a cosmopolitan society. Many interna­ tional organizations and corporations have contributed to the establishment of such an international regime of business ethics, such as the OECD, the World Economic Forum, and the UN Global Compact principles, the work of the UN Commission on Human Rights on corporate social responsibility and human rights. In particular, the Caux Round Table principles (founded on a universal concept of human dignity) can be cited as an important effort to promote self-imposed norms of high integrity for powerful multinational corporations as international guidelines for business ethics that are mediating and bridging East and West.

Corporate Morality: Integrity, Trust, and Legitimacy What is the foundation of the morality of the corporation? This issue concerns the ethical and legal foundations of the idea of corporate social responsibility considered within the framework of an institutional concept of corporate identity and personhood. In this context, there have been many points of view on the moral identity of corporations. In particular, the collectivist and constructivist concept of corporate identity have been proposed as a useful foundation of the organizational integrity of the good citizen corporation (or the corporation as a world citizen). At the institutional level, organizational integrity can be considered a result of efforts to establish successful strate­ gies of moral management. This is also the basis for trust and accountability of corporations, making it possible to formulate an institutional and communicative concept of social legitimacy for corporations. Accordingly, the idea of corporate social responsibility is evolving on the basis of recent developments of busi­ ness ethics in the international community. We can analyze the conception of corporate social responsibility in the current economy on the basis of an institutional theory of organizations in society. The problem is what conception of the firm and corporate intentionality is implied in recent developments of corporate social responsibility. One idea has been to propose a dialectical concept of corporate intentionality finding a way to over­ come the oppositions between the collectivist and the nominalist view on corporate social responsibility, as suggested by Peter French. This position can be considered an institutional concept of corporate social

responsibility, which constitutes the theoretical founda­ tion of the concept of corporate citizenship. This view on corporate social responsibility stems from a criticism of a concept of responsibility in which it is not possible to ascribe any institutional ethical responsibility to corpora­ tions. This concept of institutional responsibility can be considered an expression of the legal concept of due diligence present through the organization’s compliance and ethics programs where the organization expresses its good intention and standards of integrity. Accordingly, we can put forward the notion of organi­ zational integrity on the basis of the ideas of business ethics and corporate social responsibility. This can be conceptualized as the foundation of good corporate citi­ zenship. The notion of integrity implies the idea of a virtuous and responsible organization. There is a close connection between individual and organizational integ­ rity. Integrity strategies should be distinguished from compliance strategies because they deal with values and ethics rather than rules and regulations. In organ­ izations there should be formulated strategies for implementation of organizational values program accord­ ing to specific values, histories, and contexts of specific firms. Moreover, integrity expresses organizational commitment to justice and fairness with regard to different stakeholders. Indeed, there is also a close link between leadership, ethical judgment, triple-bottom-line management, and evolving organizational integrity. Establishment of organizational integrity and managerial judgment contributes to formulating a framework for handling organizational dilemmas in daily leadership practices. Organizational integrity in judgment aims at the ideals of openness, honesty, wholeness, and thoughtfulness. We may say that values-driven management programs are useful tools to promote a culture of integrity, account­ ability, and trust within organizations. It is argued that genuine trust relations should be considered to be impor­ tant results of moral management and ethics in organizational culture. Because of globalization and greater public awareness, a stronger link has been estab­ lished between accountability, trust, and social expectations of corporations. The need to build trust­ worthy business practices includes management of problems of corporate governance, accountability, and transparency concurrent with a deep crisis of public trust and the social acceptance of corporations. Therefore, it is necessary to discuss the significance of trust in order to restore the corporate image, develop good corporate governance, and achieve social accep­ tance of business in a democratic society. I believe that trust should not only be considered an instrument of economic action, but also an important social glue and informal lubricant of business organizations.

Business Ethics, Overview

To consider business practices as based on ethical values moves trust to the center of corporate social responsibility as the background for corporations’ accountability and integrity, because generalized mistrust and opportunistic behavior are the limits of fair business practice and cannot be considered the basis for the inter­ nal unity and external legitimacy of business corporations. On this basis, it is possible to defend an ethical definition of trust considering that what is trustworthy is based on the firm’s accountability and responsibility. To trust someone implies means holding that person or organiza­ tion accountable over time, believing that its actions will follow principles of integrity and honesty. Moreover, trust is developed out of mutual expectations and promises for reciprocity and collaboration in the future. Thus, there is a close connection between integrity and the accountabil­ ity of transparent business institutions. The ideas of responsibility, integrity, accountability, and trust can be promoted as constituting elements in a theory of the legitimacy of corporations in modern society, as proposed by Suchman. Legitimacy in global society is an important element in the requirements for the good citizen corporation. The quest for legitimacy is not only about economic efficiency of transaction costs, but business ethics of theories such as Aristotelianism, Kantianism, and Utilitarianism, involving middle-level ethical principles such as the four ethical principles of autonomy, dignity, integrity, and vulnerability, attempt to formulate the basis for social and political legitimacy of corporations in demo­ cratic societies. The good citizen corporation uses these political ideas as the basis for a theory of rationality of corporations in economic markets in complex societies. We can analyze the impact of different views of the firm and economic life in different theories of manage­ ment and economics in the twentieth and twenty-first centuries. The views of legitimacy in some of the most influential theories of economics and management can be used to promote an institutionalist and stakeholderoriented view of corporate legitimacy, which is based on the idea of the good citizen corporation. In the perspec­ tive of ethical theories, the idea of stakeholder dialogue is viewed as the normative basis of the concept of good corporate citizenship. These ideas makes us escape the Weberian iron cage of instrumental rationality opening for market regimes based on integrative business ethics with a broader social basis. Legitimacy is founded on the social community and a human-life world based on views of justice as fairness, protection of rights, and the promo­ tion of the common good for society. Thus, according to this alternative view of the legitimacy of business in society, responsibility, integrity, and accountability emerge out of the idea of respect for good business ethics as the ‘‘license to operate’’ for the firm in society. We can call this view of good business ‘‘republican business ethics’’

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which means that the firm should act as a good citizen being responsible for its duties toward society and be a good servant of society. This republican attitude, where the firm is oriented toward the common good, does not only concern the duties toward the nation-state, but indeed also toward the international community. Therefore social responsibility and ethical business become global business ethics and we can say that the firm has cosmopolitan responsibility to act as a world citizen that is concerned about global world problems concerning social, environ­ mental and economic issues. See also: Accounting and Business Ethics; Altruism and Economics; Applied Ethics, Challenges to; Auditing Practices; Business Ethics and Gender Issues; Business Practices and Agent Virtue; Codes of Ethics; Consumer Rights; Corporate Governance; Corporate Responsibility; Corporations, Ethics in; Economic Ethics, Overview; Economic Globalization and Ethico-Political Rights; Leadership, Ethics of; Professional Ethics; Social Responsibility Principle; Socially Responsible Investment; Trust.

Further Reading Bidault F, Gomez PY, and and Marion G, (eds.) (1997) Trust, Firm and Society. London: Macmillan. Boatright JR (2003) Ethics and the Conduct of Business, 3rd edn. New Jersey: Prentice Hall. Bowie NE (1999) Business Ethics. A Kantian Perspective. Cambridge MA: Basil Blackwell Publishers. Carroll AB (1979) A Three Dimensional Model of Corporate Social Performance. Academy of Management Review 4: 497–505. Crane A and Matten D (2004) Business Ethics. A European Perspective. Oxford: Oxford University Press. De George R (1999) International business ethics. In: Frederick RE (ed.) A Companion to Business Ethics. Blackwell Companions to Philosophy, pp. 233–243. Oxford: Blackwell Publishing. Dienhart JW (2000) Business, Institutions and Ethics. A Text with Cases and Readings. Oxford: Oxford University Press. Donaldson T and Dunfee TW (1999) Ties that Bind. A Social Contracts Approach to Business Ethics. Boston: Harvard Business School Press. Driscoll D-M and Hoffman WM (2000) Ethics Matters. How to Implement Values-Driven Management. Waltham MA: Centre for Business Ethics, Bentley College. Elkington J (1999) Cannibals with Forks. The Triple Bottom Line of 21st Century Business. Oxford: Capstone. Enderle G (1999) International Business Ethics, Challenges and Approaches. Notre Dame IN: University of Notre Dame Press. European Commission (2001) Directorate-General for Employment and Social Affairs, Industrial Relations and Industrial Change, Unit EMPL/ D.1 (2001). Promoting a European Framework for Corporate Social Responsibility, Green Paper, July, 2001, Luxembourg: Office for Official Publication of the European Communities. Frederick WC (1994) From CSR1 to CSR2: The maturing of business and society thought. Business and Society 33: 150–164. Frederick WC (1995) Values, Nature and Culture in the American Corporation. New York: Oxford University Press. Freeman ER (1984) Strategic Management, A Stakeholder Approach. Boston: Pitman Publishing Inc. French P (1984) Collective and Corporate Responsibility. New York: Columbia University Press.

372 Business Ethics, Overview Friedman M (1970) The social responsibility of business is to increase its profits. New York Times Magazine, September 3, 1970. Reprinted in Scott B. Rae and Kenman, L Wong, Beyond Integrity. A JudeoChristian Approach to Business Ethics. Grand Rapids Michigan: Zondervan Publishing House, 1996, pp. 241–246. Laufer WS (1996) Integrity, diligence, and the limits of good corporate citizenship. American Business Law Journal 34: 157–181. Lipovetsky G (1991) Les noces de l’e´thique et du business. Le De´bat 67: 145–167. Lu¨tz MA and Lux K (1979) The Challenge of Humanistic Economics. Menlo Park, CA: Benjamin-Cummings Publishing. Mittchell RK, Agle BR, and Wood DS (1997) Toward a theory of stakeholder identification and salience: Defining the principle of who and what really counts. Academy of Management Review 22: 853–886. Paine LS (1994) Managing for organizational Integrity. Harvard Business Review 72(2): 106–117. Paine LS (1997) Cases in Leadership, Ethics and Organizational Integrity. A Strategic Perspective. Chicago: Irwin. Paine LS (2003) Valueshift. Why Companies Must Merge Social and Financial Imperative to Achieve Superior Performance. New York: McGraw-Hill. Philips R (2003) Stakeholder Theory and Organizational Ethics. San Francisco: Berrett-Koehler, Inc. Powell WW and DiMaggio PJ (1991) The New Institutionalism in Organizational Analysis. Chicago: The University of Chicago Press. Rafalko RJ (1994) Remaking the corporation: The 1991 US sentencing guidelines. Journal of Business Ethics 13: 625–636. Rawls J (1971) A Theory of Justice. Cambridge MA: Harvard University Press. Rendtorff JD and Kemp P (2000) Basic Ethical Principles in European Bioethics and Biolaw, Vol. I–II. Copenhagen: Center for Ethics and Law. Rendtorff JD (2009) Responsibility, Ethics and Legitimacy of Corporations. Copenhagen: Copenhagen Business School Press. Ricœur P (1990) Soi-meˆme comme un autre. Paris: Le Seuil. Sen A (1987) On Ethics and Economics. Cambridge MA: Blackwell Publishers. Solomon RC (1992) Ethics and Excellence, Cooperation and Integrity in Business. New York: Oxford University Press. Suchman MC (1995) Managing legitimacy: Strategic and institutional approaches. Academy of Management Review 20(3): 571–610. Ulrich P (2008) Integrative Economic Ethics, Foundations of a Civilized Market Economy. Cambridge: Cambridge University Press. Willmott H (1998) Towards a New Ethics? The contributions of poststructuralism and posthumanism. In: Parker M (ed.) Ethics in Organizations. London: Sage Publications.

Relevant Websites http://www.csreurope.org – CSR Europe. http://www.eben-net.org – European Business Ethics Network (EBEN). http://www.isbee.org – International Society of Business, Economics and Ethics. http://www.societyforbusinessethics.org – Society for Business Ethics. http://www.unglobalcompact.org – UN Global Compact.

Biographical Sketch Jacob Dahl Rendtorff is Professor of Ethics, at Roskilde University, Denmark and is Head of studies and Head of research at his department. He was educated in universities in Denmark, Germany, and France and he has been visiting pro­ fessor in Utrecht, Freiburg, Rome, Boston, Santa Clara, Stanford, and Louvain. Dr. Rendtorff has been director and co-director on several research projects; in particular, he was rapporteur to the European Union as a member of a BIO-MED II Project. He has written more than 50 articles, authored seven books, been editor or co-editor on more than ten other books in Danish, English, French and German. His work covers issues of existentialism and hermeneutics, French philosophy, ethics, bioethics, and business ethics as well as philosophy of law. In particular, Basic Ethical Principles in European Bioethics and Biolaw, Copenhagen and Barcelona (2000) (written with Peter Kemp) and Responsibility, Ethics and Legitimacy of Corporations (2009). Dr. Rendtorff is cur­ rently member of the board of the Danish Philosophical Forum and he is vice president of the Danish Association for philosophy in the French language. He is also a member of the international group on reflection about ethics, Eco-ethica, founded by Professor Tomonobu Imamichi.

Business Practices and Agent Virtue J D Bishop, Trent University, Peterborough, ON, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Practice A key concept in the virtue ethics theory of Alasdair MacIntyre; a practice is a human activity that permits the development of excellences in the pursuit of rewards internal to the practice. Virtue A habit or character trait that allows an individual to achieve the excellences necessary for a

Virtue ethics is a normative ethical theory; that is, it is inherently prescriptive. However, it is unlike deontologi­ cal theories (e.g., human rights or Kant’s categorical imperative, which are based on concepts of duty), and it is unlike consequentialist theories (e.g., utilitarianism or ethical egoism). Virtue ethics is also unlike care or fem­ inist ethics, which bases ethical judgments on the creation and preservation of proper relations between people. For virtue ethics, ethical judgments are passed in the first instance on a person’s character. Actions, outcomes, and interpersonal relations are not ignored in virtue ethics, but they are judged derivatively depending on how they impact or reveal a person’s character. Most virtue ethics theories derive from Aristotle, and his writings are still directly appealed to by modern business ethics, although, as George Bragues points out and Robert Solomon defends, business ethicists usually apply Aristotle’s general principles rather than closely follow what Aristotle had to say about production and trade. For Aristotle, what is good or valuable is the happiness that comes from a well-lived life, a life that has flourished in the ways most consistent with human nature. This judges value based on what a person is – that is, on his or her character – and not on what he or she has or does. A person’s character consists of the actions, inclinations, and feelings that have become habi­ tual for that person. The best habits of character, or virtues, are those that are part of a happy and flourishing life. Note that the virtues are not a means to happiness; they are part of what constitutes happiness. Virtues for Aristotle are of two sorts: the intellectual virtues, such as honesty, and the practical virtues, of which the most important are prudence (or practical wisdom), courage, temperance (or self-control), and justice. The virtues are character traits; they define what a person is, not what he or she does. However, the virtues are related to actions in key ways. First, people’s actions

flourishing human life (Aristotle) or for a practice (MacIntyre). Virtue ethics A normative theory of ethics that views the primary subject of moral judgment to be a person’s character (as opposed to a person’s actions or the consequences of a person’s actions).

have an impact on the development of their character; it is by practicing virtuous actions, and admiring virtuous actions in others, that we come to have virtuous char­ acter traits and to be virtuous people. For Aristotle, the main ethical problem with telling lies is not that lying violates moral principles or that lies often have undesir­ able consequences; the problem is that a lie is not consistent with being an honest person. The second connection between the virtues and actions is that vir­ tuous actions are the spontaneous and unstrategized result of virtue. Honest people do not tell lies because lying is not part of their nature. Aristotle was able to base his analysis of the virtues on human nature because he thought he understood human nature. In retrospect, we can see that he was basing his views on freeborn upper-class male citizens of ancient Greek city-states. These class, gender, and cultural biases make no sense in modern democratic society. The revival of virtue ethics in the last decades of the twentieth cen­ tury was largely based on Alasdair MacIntyre’s discussion of virtue in classless, gender-neutral, multicultural socie­ ties. For MacIntyre, human flourishing or excellence could not be discussed outside of ‘practices,’ which are buried within cultural traditions. He defines practices as any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appro­ priate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended. (MacIntyre, 1981: 187)

A virtue is a character trait of excellence that is internal to a practice. Such excellence might also achieve rewards external to the practice such as money, power,

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or fame, but such external rewards would never be valuable in themselves, only as a means to other things. Most practices require institutions or organizations to maintain them, but these too are external to the practice. For example, consider the game of chess as a practice; the virtues of skill, attentive memory, and concentration lead to the internal satisfaction of winning well-played games of chess. Exceptional chess playing might also lead to prize money or fame, but these are external to the game. Chess clubs and federations are the organiza­ tions and institutions needed to organize chess playing at a high level. In the past 20–30 years, virtue ethics has been applied in many ways to modern business. Some of this has been inspired by Robert Solomon’s work, especially his groundbreaking 1992 book Ethics and Excellence. However, many writers have also been inspired or provoked by MacIntyre’s negative bias against business. Others have turned to virtue ethics because of disappointment with the weaknesses of deontological, consequentialist, and feminist ethics. Virtue ethics is sometimes seen as an alternative to these theories and sometimes as a supple­ ment; Thomas Whetstone, for example, defends a tripartite theory that combines virtue ethics, Kant, and utilitarianism. The application of virtue ethics to business practices is made complicated by a variety of opinions on the nature of business. Some authors, such as Ian Maitland, discuss virtue in terms of the free market without refer­ ence to corporations, but most authors are interested in corporate capitalism and raise issues about the virtue of corporate leaders and employees, and indeed discuss whether corporations can be virtuous. Within corporate capitalism, we need to consider the virtue of employees, leaders (especially CEOs), investors, and consumers, realizing, of course, that the same individual can play multiple roles and that we all have lives, families, hob­ bies, and so on outside our roles within capitalism. Finally, we need to consider whether corporations them­ selves can be virtuous.

Virtues and Free Markets It has long been thought that in order to function, free markets require that most participants have certain vir­ tues. Key virtues for free markets are honesty (fraud and deception cause market distortions), justice (particularly respect for private property ownership), trustworthiness (especially in fulfilling contracts), and self-control (living within one’s means and accumulating capital). Simultaneously, free markets tend to undermine the very virtues they rely on: Free markets encourage selfinterest, materialism, consumerism, immediate gratifica­ tion, greed, and vanity. Because of this contradiction, the

functioning of free markets, when they arise, depends on the virtues, or ‘social capital,’ that arise before or outside of the market. There is a constant danger that the external rewards of the market will overwhelm people’s virtues and the market system will collapse. This view, labeled the pessimist view by Ian Maitland, has been common since the early days of modern capit­ alism. One of its clearest statements was in the early eighteenth century by Bernard Mandeville. His Fable of the Bees: Or Private Vices, Publick Benefits argued that the private vices of lust, vanity, aggression, deceit, sloth, avarice, and pride were encouraged by flourishing mar­ kets and thriving economies, and that the resultant dishonesty tended to undermine society. Maitland, however, questions this pessimism and defends the optimistic view that free markets encourage many virtues and that these virtues are precisely those the free market requires to thrive. His argument is that the virtues of trustworthiness, sympathy, self-control, and fairness have monetary value within free markets, and so their cultivation is encouraged. Maitland does not make the error of thinking people can or should cultivate vir­ tues as a means to the external market rewards of money and success; he only wants to establish that external market rewards do not undermine the virtues. The idea that there is a market for virtues has received considerable discussion, and Deirdre McCloskey has discussed the virtues that develop in free market economies at consid­ erable length. The empirical data on actual markets may seem to favor the pessimistic view; the scandals of the Enron era seem to show that markets tend toward dishonesty, and the recent debt crisis seems to show greed, dishonesty, and excessive materialism in bankers, investors, mortgage brokers, and house buyers. However, before becoming too pessimistic about all free markets, we should ask instead about the conditions under which markets tend to under­ mine the virtue of the participants. The debt crises of 2008–09 suggests such a list should include asymmetrical information, one-shot exchanges, poor reputational net­ works, externalized risk, huge short-term rewards, and lack of long-term career paths. However, we should con­ sider not only the impact of markets on the participants but also the impact on the underclass of those excluded from markets by lack of education, skills, health, or intel­ ligence. The difficulties the members of this class have in becoming and remaining virtuous are a major problem for free markets. For Aristotle, the virtues require family, friends, and community. Market economies, or at least the economic theories used to understand market economies, presup­ pose an independent market participant without community commitments or dependencies. The question of whether capitalism undermines the community virtues seems particularly acute. Maitland is dismissive

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of this issue, wondering if we should mourn virtues that the market entices people into giving up. David Newhouse gives a more thoughtful discussion of this issue when considering the impact of capitalism on tra­ ditional aboriginal societies. Newhouse is clear that the values of capitalism must be adopted if aboriginal communities are to develop economically through capit­ alism; he sees this process as inevitable, and he compares it to absorption by the Borg on Star Trek, to which resistance is futile. At the same time, Newhouse appreci­ ates the pain of this need to change value systems and the devastating effect that the change can have on the people and communities caught in it. Do free markets encourage the virtues? It depends on the structure of the free market, and it depends on which virtues are in question. Newhouse and many others are surely correct that capitalist markets presuppose a value system different from those of most noncapitalist societies, including Aristotle’s.

Corporations and the Virtue of Employees Whether or not free markets encourage the virtues, with modern capitalism we also need to discuss the impact of corporations on virtue. The longest and deepest relation most people have with one or more corporations is that of employee. What effect do modern for-profit corporations have on their employees? This question inevitably involves us in the debate between the situationists and the dispositionists. The situationists claim that most people in fact make deci­ sions, including ethical decisions, based primarily on the nature of the situation they find themselves in, not based on their character dispositions. Because of this, virtue ethics, which emphasizes the development of character, is pointless. Most situationists are empirical psychologists. Their data come from experiments in which they first use psychology instruments to measure people’s dispositions and then put the people in various situations to see how they behave. The results tend to show only a very weak connection between dispositions and actions and a much stronger connection between situations and actions. The implication for business ethics is that if you want corpo­ rate employees to behave ethically, you need to structure their work situation in such a way that they make good ethical choices; their character will have very little impact on the outcome. This, the situationists say, renders virtue ethics insignificant. Dispositionists such as Miguel Alzola respond both by questioning the empirical data and the data’s interpreta­ tion and by questioning the implications of the data for virtue ethics. The data, the dispositionists point out, show some connection between dispositions and actions, and this connection is significant for situations that are

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similar. This seems to imply that character can make a difference, perhaps the difference between ethical and unethical actions. It is most important when viewing this debate not to confuse empirical data (the ‘is’) with virtue ethics norma­ tive claims (the ‘ought’). The psychological data show the weakness of character in many or most situations for most people, but this makes the development and cultivation of character all the more important. The need to cultivate our character until it becomes ingrained in us is precisely what virtue ethics has claimed for the past 2500 years. The situationists have not shown that lifelong character development has no effect, and that is what they would need to show in order to render the prescriptive claims of virtue ethics pointless. The situationists’ data simply rein­ force the importance of the virtue ethics approach, which is not to say, of course, that corporations can or should ignore creating a corporate culture and structures consis­ tent with the virtues – the virtues need whatever help they can get. This leads to the question of whether or not modern corporations are structured to encourage virtue in their employees. A number of writers argue that corporations are not. An example of such a critique is Richard Sennett’s (1998) book, The Corrosion of Character. Sennett argues that modern corporate practices create a work environment of ‘‘chronic uncertainty and instability’’ (p. 31), ‘‘demeaning superficiality’’ (p. 98), and very short-term horizons; these conditions undermine the ‘‘sustained human relationships and durable purposes’’ (p. 98) that make the cultivation of many virtues possible.

Corporations and the Virtue of Business Leaders For Aristotle, the virtues of powerful leaders are vital. When applying virtue ethics to business, we need to consider whether capitalism tends to permit or, better, encourage the virtues in CEOs and other business leaders. Much of the theory of corporations, especially agency theory, is discouraging on this topic. Agency theory assumes that CEOs tend to pursue their own interests at the expense of the shareholders who hired them; this implies a dim view of the virtues of CEOs, especially the virtues of loyalty, trustworthiness, and justice. It also implies that CEOs are primarily motivated by external rewards such as money and power. Aristotle’s view of those involved in trade, and MacIntyre’s view of business managers, would seem to agree that those involved in these activities seek external rewards. However, some business ethicists (e.g., Jane Collier) have questioned this. The debate centers on whether management can be considered a practice in MacIntyre’s sense. If it is, then there would be internal rewards, and there would be

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standards of excellence in management that permit and encourage the relevant virtues. For management to be a practice, business must have a purpose that is inherent to it; it must have a purpose other than profit and growth because these are external to the practice. The best candidate for an internal purpose for business management would be something such as the following: the efficient production of goods and services that people wish to buy. With such a purpose, excellence in the practice of management would involve many vir­ tues, such as justice to all stakeholders, prudence in achieving goals, self-control, and courage in dealing with external demands. Both production and marketing involve the social virtues in dealing with employees and customers. Viewing management as a practice is consistent with some views of corporations such as institutional theory. It emphasizes management as a tradition with its own stan­ dards of excellence, and with institutions and norms that ought to function to encourage the virtues that enhance such excellence in business leaders. What this view of management can never do is to concede that the purpose of the practice of management is to maximize shareholder wealth; that goal is external to the practice and ought not to interfere with its excellences. However, profit goals may be greatly enhanced by virtuous leaders; Aristotle argued that human institutions function much better when leaders are people of virtuous character. Virtue in CEOs should lead to better functioning organizations that achieve external as well as internal goals. If the virtue of leaders is so important, how do we ensure that leaders have virtues? As George Bragues argues, the answer cannot be to restructure corporate governance. No amount of rules, laws, and regulations such as Sarbanes–Oxley will ensure virtue in CEOs, and no governance structures will ensure ethical corporations if the leaders who implement them are not virtuous. Virtue must be cultivated by developing the habits of virtue, best begun at a very young age. Contemplation of virtuous examples can also help. Exactly how to encou­ rage such cultivation in CEOs and potential CEOs is not clear, but current MBA programs do not seem to under­ take this, even in ethics courses. If virtue ethics is to contribute to contemporary business ethics, the question of how to ensure virtue in CEOs needs a vast amount of research, thought, and development.

Corporate Capitalism and Virtuous Investors As Berle and Means noted decades ago, the rise of the corporation as the central institution of capitalism sepa­ rated the ownership and the management of capital investment. Shareholders of publicly owned companies

listed on a stock exchange have become the most impor­ tant, although not the only, investors in our society. Much of this type of investing is indirect through mutual, hedge, and pension funds. This system of ownership and man­ agement is designed to maximize (subject to limits set by law) the return to shareholders. Most of the laws under which corporations exist, most CEOs and executives, and most key theories such as agency theory all recognize this goal of maximizing shareholder wealth. However, the key point for present purposes is that most investors invest with the aim of maximizing their return. For some inves­ tors, such as pension funds, this is required by law. Granted, there are individual investors and some endow­ ment funds, such as those of churches, that have ethical or social concerns as well as financial goals, but the system greatly limits, often legally, the ability of such investors to pursue nonfinancial goals in any way other than selling their shares in undesirable corporations and buying those of desirable ones. Such ethical concerns are often dis­ missed as ‘ideological’ or ‘political,’ but for our purposes they can be best viewed as constraints on investor choice; the purpose of investing remains to maximize return subject to such constraints. Given this structure, the virtue of investors becomes vitally important because the purpose of corporations is driven by investor goals. But can investors be virtuous? For investors qua investors to be virtuous, investing must be a practice with internal goals and excellences. However, profit making is the primary and often the only goal of investing, and profit is clearly an external reward; money is always an external reward for both Aristotle and MacIntyre. Because the defining goal of investing is external, there can be no internal excel­ lences to define any virtues of investing. Aristotle’s and MacIntyre’s dismissal of ‘trade’ and ‘business’ as areas of life that do not involve the virtues seems to have some merit when applied to investing. Management may be a practice with virtue-defining excellences, but investing cannot be. Ethical investors need to look to deontolo­ gical or consequentialist normative theories, not to virtue ethics.

The Virtue and Vices of Consumers If consumers are viewed simply as shoppers, they would seem to be motivated by the desire to possess as many things at as little cost as possible. Owning things and saving money are external rewards; hence, shopping is not a practice in MacIntyre’s sense and cannot have excellences on which to base any virtues. However, if the concept of consumers is expanded to include their lifestyle in general, then being a consumer can be viewed as having internal excellences and corresponding virtues. Virtuous consumers would practice temperance and

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control of their desires; they would avoid the extremes of being either a debt-ridden fashion hedonist or a pennypinching miser. Virtuous consumers would practice jus­ tice and select socially responsible and environmentally sustainable products. Justice may require buying fairtrade products and joining anti-sweatshop boycotts; the virtuous consumer would cultivate the practical wisdom required to judge such issues. It makes sense to talk about the practice of consumption and the virtues required to be an excellent consumer. However, marketing and advertising is largely aimed at subverting consumer virtues. There is, of course, adver­ tising for fair-trade products, but most advertising appeals to our vices such as self-absorption, vanity, and pride. Sophisticated advertising techniques aim to undermine our temperance and self-control and subvert the practical wisdom required to avoid obsession with the external rewards of possessing things. It is difficult to cultivate the habits of virtue in a society that spends billions of dollars subverting those habits. Far from being an argument against virtue ethics, this analysis of the position of consumers in corporate capit­ alism helps us to understand the ethical situation of such consumers in a way that deontological or consequentialist ethics cannot. Buying that fashionable outfit or expensive car may not violate the categorical imperative, and it may not as a single purchase cause great harm, but if we ask if it is consistent with the cultivation of virtuous habits, we are able to analyze the ethics of the purchase in an entirely new way. The conflict between advertising and consumer virtue that is so deeply embedded in consumer cultures is a type of conflict frequently identified by virtue ethics. For MacIntyre, it is common to have con­ flicts between the external rewards of the institutions necessary for a practice to exist and the virtue-generating internal rewards of that practice. That virtuous consumers should be confronted by the temptations of the advertis­ ing industry is not a problem unique to consumers trying to be virtuous; a similar, if often less forceful, problem occurs with many practices.

Can Corporations Be Virtuous? The quest in the business ethics literature to find business practices with intrinsic excellences that can define the virtues has encompassed not just corporate employees, leaders, investors, and customers; it has extended to corporations themselves. It has been suggested that the concepts of being virtuous (or not) can be applied to for-profit corporations, and that doing so is desirable because it allows us to ethically assess corporations and may suggest ways in which corpora­ tions can be habituated to more ethical behavior. No doubt these are noble goals, but if virtue ethics is going to encom­ pass corporations, we need to first establish that corporations

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are the sort of thing that might be virtuous. It is not obvious that corporations can flourish in the sense that humans can, nor that their flourishing is partly constituted by their pos­ sessing the excellences, character, and habits of virtue. In other words, it is not clear that corporations are the relevant sort of moral actors (or agents). Although it has been argued that corporations are moral agents – for example, by Peter French – it is not clear that French’s concept of corporations as moral agents is rich enough for virtue ethics. If virtue ethics is to be applied to corporations, corporations must be moral actors in French’s sense, but they must also display other characteristics related to purpose, character, and habits. To be a moral actor, corporations must be able to act with intention. We often talk of corporations doing things, but for ethical purposes, this must not just be shorthand for the actions of those employed by the corporation; the corporation itself has to be able to act with intention. French argues that corporations do have intentions because they have decision-making processes that pro­ duce decisions and actions that were possibly not the intention of any one or more individuals within the cor­ poration. This claim about corporate decision making is true, but it is also true of many other organizations, including the Mafia – a point to which we will return. For virtue ethics to apply to corporations, for-profit corporations need to display three other characteristics. First, they must be able to flourish, and we must be able to identify flourishing corporations. This implies that a cor­ poration must have a purpose, and that this purpose must be the sort of purpose that can define excellences. In other words, corporations must be participants in a practice in MacIntyre’s sense of practice. From the virtue ethics perspective, the purpose of a corporation cannot be to maximize profit, growth, or shareholder wealth; these are all external rewards and so cannot characterize a practice. A better suggestion might be that the purpose of corpora­ tions is the efficient production of goods and services that their customers want to buy. An example might be a natural resource corporation whose purpose is the effi­ cient production of high-quality paper products. Another suggested purpose of corporations is that of being a com­ munity that allows or encourages the communityoriented virtues; this, however, would involve radical change in actual for-profit corporations. Communities in this sense include children and the elderly, and the com­ munity-oriented virtues are difficult to cultivate in communities that suddenly banish large numbers of their members for no justice-based reason (as a corpora­ tion does in a layoff). A final suggestion for virtue ethics is that the purpose of corporations is to provide the organi­ zations necessary for certain practices to flourish. Corporations would need some such purpose if manage­ ment is to be a practice. In such a case, the excellences of corporations could be judged by the flourishing of the practices they contain. Again, this would require major

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change to actual corporations because currently their decision-making processes do not generally include this as one of their purposes. A second requirement necessary for virtue ethics to apply directly to corporations is that the concept of corpo­ rate flourishing must be compatible with, or even enhance, human flourishing. For example, we would not want to call a corporation virtuous that specializes in making imple­ ments of torture even if it efficiently achieves its goal, cultivates the community virtues in its employees, or encourages the practice of management. What is needed here might be called the Mafia test for the application of virtue ethics to corporations; any strategy for assessing the virtue of corporations that identifies the Mafia as virtuous is highly problematic. For example, if the excellence of corporations is defined purely in terms of the efficient pursuit of profits or the maximization of shareholder wealth, it would seem that the Mafia is an excellent orga­ nization and must be praised for cultivating the virtues that permit it to achieve that excellence. This reduces the exercise to the absurd. The Mafia test is a constraint on, not an objection to, the idea that corporations can flourish in a way that defines excellences. For example, if excel­ lence is defined in terms of permitting the development of one or more practices in MacIntyre’s sense of a practice, then the constraint in MacIntyre’s definition of a practice (that it must have ‘‘the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended’’) would prevent the Mafia problem from arising. Given the impact of the Mafia on its victims, it does not systematically extend human powers to achieve excellence. There is a third requirement if virtue ethics is to be applied to corporations: Corporations must be able to possess something comparable to character traits that can be cultivated. That is, corporations must be able to habituate virtues in a way that makes the virtues an essential part of them. Furthermore, such character traits must not be a means to any of the corporation’s goals that define a flourishing corporation – they must themselves be partly constitutive of the flourishing. That is, we must be able to say that being virtuous is part of what it is for a corporation as a corporation to be doing well. This brings us to the core issue of applying virtue ethics to corporations; can we, and how do we, get cor­ porations to cultivate the virtues once we identify what the corporate virtues are? Virtuous people cultivate the virtues in themselves, but this does not seem to be a practical view of corporations. Perhaps it is the task of CEOs and other executives to cultivate the virtuous traits of their corporations. This is consistent with the generally held view that CEO support is essential for a corporation to be ethical by any definition of ethical; however, in the case of virtue ethics it may undermine the notion of corporate character traits, a notion that is essential for a

corporation to be considered virtuous. The point to char­ acter traits is that they are persistent and do not change very easily. However, a corporation can suddenly have a new CEO, who can have a sudden and dramatic effect on a corporation and its culture. If we rely on CEOs to cultivate virtuous corporations, the corporations could cease to be virtuous very suddenly, which undermines the idea that they were really virtuous in the first place. The virtue of people can also be affected by their upbringing and education. Can people outside of corpora­ tions encourage corporations to develop virtuous character traits? Regulators and lawmakers might be able to do so if the legal environment or structure of corporations encour­ aged such development within corporations. This is an interesting idea for virtue ethicists to develop, but the approach has not been clearly established. Ethical consumers who boycott corporations they per­ ceive as not virtuous might be viewed as trying to educate corporations, but because boycotts primarily aim at disrupt­ ing the external rewards of profit, this raises the difficult issue of whether external rewards can be used to get cor­ porations to eventually see the internal rewards of virtue. Many business ethicists discussing the virtue ethics approach seem to think external rewards can have this effect on people; it is less clear what effect it has on corporations. The application of virtue ethics directly to corpora­ tions is highly problematic. Virtue ethicists who attempt this approach will have to show that corporations are the sort of moral actors that can participate in practices that define the excellences of a flourishing corporation – excellences that must promote internal, not financial, rewards. Furthermore, corporations must flourish in some way that is consistent with human flourishing. Finally, corporations must be able to have character traits and habits that correspond to the virtues. Once they establish that corporations are the sorts of things that can be virtuous, virtue ethicists need to identify which virtues corporations ought to cultivate, and they need to explain how corporations can go about such cultivation. Some work has been done in applying virtue ethics to corporations – by, for example, Aditi Gowri – but much more research is required if this approach is to succeed.

Conclusion: Virtue Ethics and the Current Business Environment For virtue ethics to be a useful approach to business ethics, it is insufficient to apply it to theoretical models of per­ fectly competitive markets or to free markets in general, although such application may undermine much of the instinctive pessimism about combining virtue and markets. The useful application of virtue ethics must examine cor­ porate capitalism as it currently exists; it must try to identify business practices with internal rewards that can

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define the excellences underlying the virtues. Virtue ethics must then show how virtuous character traits can be culti­ vated within those practices. However optimistic we are about free markets in general, current trends in corporate capitalism seem unfavorable to the development of virtue in participants. Let us consider trends affecting employees, CEOs, investors, and consumers. Key trends affecting employees, at least in North America and Britain, are declining job security, stagnating salaries for all but the highest paid, increasing debt, longer work hours, a need for two incomes in most families, and a huge increase in financial risk (especially in the United States for health care reasons). These trends do not mean that striving to be an excellent employee is no longer a practice in MacIntyre’s sense, but they do mean that the practice most employees see themselves embedded in is more akin to building an excellent career (which may span numerous employers). This change seems to favor the virtues of self-reliance, hard work, risk-taking (or courage), and self-control (especially financial selfcontrol). However, frequent job and geographical moves discourage the virtues of loyalty, generosity, and community involvement. On balance, knowledge and professional workers probably have a fair opportunity to develop and maintain an excellent character if they strive for it, but we should be less sanguine about the opportu­ nities of unskilled and blue-collar workers to develop virtuous habits. Financial risks, job insecurity, and a declining standard of living threaten the traditional virtues of the dedicated employee. This is what Richard Sennett refers to as the ‘‘corrosion of character.’’ Enron and related scandals would seem to make us equally skeptical of the virtue of CEOs. Current trends putting pressure on CEO virtue center on the shareholder value movement, a trend that emphasizes short-term finan­ cial goals and the external rewards. Part of this trend is the tying of CEO compensation to financial performance of the firm, which ensures that financial goals often overwhelm the internal goals of leadership. Huge increases in CEO compensation aggravate this trend. MacIntyre would describe this as the internal excellences of the practice of business leadership being overwhelmed by the institutions that contain the practice. Key virtues threatened by this trend are honesty, justice, generosity, dedication, and most of the community-oriented virtues. This often means that even though CEOs continue to be administrative leaders of their corporations, they are less frequently looked up to as leaders in a richer sense. Investing is not a virtue-generating practice insofar as it is solely about financial rewards. The current trend that con­ cerns us here is not the declining virtue of investors; the worrying trend is the huge expansion of the financial sector in the overall economy. If virtue ethics is not relevant to investing, then it is worrying that the financial sector has become such a key and large component of our economy. As

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the credit crisis of 2008–09 has made clear, the temptations of finance and the golden bait of debt have distracted too many people from the virtues of hard work, self-control, selfreliance, and many of the family and community virtues. Consumers face too many temptations to buy and possess things; these have combined with the temptations of overconfidence and easily available debt to entice a large number of consumers into too much debt. When a nation’s savings rate declines below zero, it is difficult to maintain that consumers are cultivating the virtues of temperance, delayed gratification, self-responsibility, and justice. The debt crisis reveals a society in which consumers seem to lack practical wisdom. In 1992, when he wrote the book that opened up the Aristotelian approach to business ethics, Solomon said he wanted ‘‘to emphasize the importance of continuity and stability, clearness of vision and constancy of purpose, corporate loyalty, and individual integrity’’ (p. 104). Since then, a tsunami of corporate re-engineering, down­ sizing, leveling, delayering, merging, fixating on shortterm stock prices, de-unionizing, offshoring, outsourcing, automating, and increasing inequality has destroyed the conditions of virtuous character development for employ­ ees, business leaders, consumers, and corporations. See also: Aristotelian Ethics; Corporate Ethics, Reputation Management; Corporate Responsibility; Corporations, Ethics in; Executive Compensation; Greek Ethics, Overview; Leadership, Ethics of; Virtue Ethics; Workplace Ethics: Issues for Human Service Professionals in the New Millennium.

Further Reading Alzola M (2008) Character and environment: The status of virtues in organizations. Journal of Business Ethics 78: 343–357. Aristotle (1941) Nicomachean ethics (Ross WD, trans.). In: McKeon R (ed.) The Basic Works of Aristotle, pp. 927–1126. New York: Random House. Bragues G (2006) Seek the good life, not money: The Aristotelian approach to business ethics. Journal of Business Ethics 67: 341–357. Bragues G (2008) The Ancients against the Moderns: Focusing on the character of corporate leaders. Journal of Business Ethics 78: 373–387. Collier J (1998) Theorising the ethical organization. Business Ethics Quarterly 8(4): 621–654. French PA, Nesteruk JT, Risser DT, and Abbarno JM (1992) Corporations in the Moral Community. Fort Worth, TX: Harcourt Brace Jovanovich. Gowri A (2007) On corporate virtue. Journal of Business Ethics 70: 391–400. MacIntyre A (1981) After Virtue: A Study in Moral Theory. Notre Dame, IN: University of Notre Dame Press. Maitland I (1997) Virtuous markets: The market as school of the virtues. Business Ethics Quarterly 7(1): 17–31. Mandeville B (1924 [1714]). The Fable of the Bees: or, Private Vices, Publick Benefits (Kaye FB, ed.). Oxford: Clarendon. McCloskey DN (2006) The Bourgeois Virtues: Ethics for an Age of Commerce. Chicago: University of Chicago Press. Newhouse D (2000) Resistance is futile: Aboriginal peoples meet the Borg of capitalism. In: Bishop JD (ed.) Ethics and Capitalism, pp. 141–155. Toronto: University of Toronto Press. Sennett R (1998) The Corrosion of Character: The Personal Consequences of Work in the New Capitalism. New York: Norton.

380 Business Practices and Agent Virtue Solomon RC (1993) Ethics and Excellence: Cooperation and Integrity in Business. Oxford: Oxford University Press. Whetstone JT (2001) How virtue fits within business ethics. Journal of Business Ethics 33: 101–114.

Biographical Sketch John Douglas Bishop obtained a Ph.D. in moral philosophy from the University of Edinburgh, Scotland (1979) and an MBA in finance from McMaster University (1985). He worked for two multinational computer corporations for

several years. In 1991, he accepted a position at Trent University in Peterborough teaching and researching business ethics, advertising, and marketing. He has published in the Business Ethics Quarterly, Journal of Business Ethics, Journal of the History of Ideas, Business and Society, and the Canadian Journal of Philosophy. His research interests include both business ethics and ethics and capitalism. He is the editor of Ethics and Capitalism (University of Toronto Press, 2000). He is currently the editor of the philosophical foundations section of the Journal of Business Ethics. His primary research interest is the rights of for-profit corporations.

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Capital Punishment H A Bedau, Tufts University, Medford, MA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Deterrence A punishment deters a would-be offender from committing a given offense if he or she is frightened from committing it by the thought of unpleasant consequences (being caught and punished). Special deterrence is the deterrent effect on a given offender created by the experience of having been punished. General deterrence is the deterrent effect on persons generally by the thought of their liability to punishment. Egalitarian A person who defends equality of treatment of persons as of paramount value. Equability A punishment is equable to the extent that it can be increased or decreased (as fines and imprisonment can) according to the relative gravity of the offense. Frugality A punishment is frugal to the extent that the pleasure law-abiding citizens receive from seeing it inflicted does not exceed the pain caused in the offender. Incapacitation A punishment incapacitates a would-be offender from committing a given offense if physical constraints (leg irons, imprisonment, drugs) make it physically impossible for him to commit the crime. Lex talionis The principle of making the punishment fit the crime by imitating the crime, as in ‘an eye for an eye, a life for a life.’

Marginal deterrence Of two punishments A and B, A is a marginally better deterrent than B if there are fewer criminal acts in which persons risk A than there are criminal acts in which persons risk B. Principle of utility The principle of choosing the course of action among the feasible alternatives that probably will yield the greatest net balance of good over bad consequences for the society as a whole. Profitability A punishment is profitable to the extent that as one undergoes it one also produces social benefits, for example, by productive labor in prison. Recidivist An offender who, having already been convicted and punished for criminal acts, nonetheless commits further crimes. Thus recidivism is a measure of the failure of deterrence, incapacitation, and reform in a given offender’s history. Remissibility A punishment is remissible to the extent that its wrongful infliction can be corrected and compensated. Retribution A punishment is imposed on retributive grounds if it is believed to be deserved (given the offender’s intention and the harm caused by the offense), and its severity is proportional to the gravity of the crime. Revenge A motive out of which one acts, in retaliation for a hurt (whether deserved or not) suffered by oneself or another, without regard to limiting the quality or severity of the retaliatory act.

Capital punishment (the practice of putting offenders to death under the authority of law as punishment for their crimes) raises a wide variety of questions. Some are empirical; for example, how frequently are innocent persons sentenced to death and executed? Is the death penalty a better deterrent than long-term imprisonment? Others are legal; for example, what are the appropriate limits to the right of appeal by a prisoner under death sentence? What criteria should be used to assist the trial

court in deciding whether to sentence a convicted offen­ der in a capital case to death or to imprisonment? Some of the legal questions raise constitutional issues; for example, does the prohibition against ‘‘cruel and unusual punishments’’ in the eighth amendment to the United States Constitution, if properly interpreted, forbid the death penalty? If the death penalty was acceptable to the framers and ratifiers of the Constitution, must it be constitutionally acceptable today? Still other questions

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are essentially political; for example, should a chief executive opposed to the death penalty grant commuta­ tion of a death sentence in the face of public agitation for the prisoner’s execution? Is a nominee’s position on the death penalty a legitimate consideration in evaluat­ ing his or her fitness for judicial office? Some questions are conceptual; for example, is there any difference between favoring the death penalty as revenge versus favoring it as retribution? Can the death penalty be said to have had a deterrent effect on those who have been executed? Lastly, there are important normative ques­ tions; for example, does acknowledgment of a universal right to life invalidate the death penalty? Do the rele­ vant moral principles in conjunction with the relevant empirical facts favor abolition or retention of the death penalty? A fully comprehensive evaluation of the death penalty must eventually address all these kinds of questions. But philosophers may be excused if they focus their attention on the normative questions, because it is precisely these questions that lawyers, criminologists, historians, politi­ cians, and others are most likely to ignore or dispose of superficially. Utilitarian and other consequentialist thin­ kers, however, must try to answer various empirical questions, too, because depending on what the actual facts turn out to be regarding the impact of the death penalty on the crime rate, the risk of executing the inno­ cent, etc., their principles will require them either to favor or to oppose it. In these respects, debating the death penalty is no different from debating the merits of punish­ ment in general or of any other particular form of punishment. What marks the death penalty for special interest is, of course, its effect on the offender and its symbolic signifi­ cance as the ultimate exercise of legitimate state power over the lives of individual citizens. Punishments of lesser severity and finality (imprisonment, fines) generally do not grip the imagination as the death penalty does. It also arouses considerable controversy despite its relative rarity. (In the United States during 1955, around a million persons were being punished in jails and prisons, of whom 3000 were under death sentence and 56 actually exe­ cuted.) Historically, of course, the death penalty along with other corporal punishments (e.g., mutilation, brand­ ing) was commonly used in all nations and societies for a wide variety of crimes. Today, however, corporal punish­ ments have generally been abolished throughout the Western world, and the death penalty – repealed in all of Europe and under intense criticism in the United States despite its popularity (recent public opinion polls report roughly 64% or more favoring it for some cases of mur­ der) – remains the major exception to the practice that punishments should be confined to incarceration, fines, and community service.

The principal interest among philosophers is to decide whether and under what conditions, if any, use of the death penalty is morally justified. The context for argu­ ment over its justification can take either of two forms: the appropriateness of the death penalty in a relatively ideal society (not so ideal that no felonies whatever occur, but ideal to the extent that the innocent are never punished, class and racial bias play no role in punishing the guilty, due process of law is scrupulously observed, etc.), or the appropriateness of the death penalty in some actual society, for example, Great Britain in 1800 or the United States in 2000. Whatever conclusion one reaches about the merits of the death penalty by focusing the discussion on an ideal society, the objection is likely to be raised that the con­ clusion has little relevance to the actual world in which actual people are (or might be) punished with death: Reasonable people do not try to deduce a society’s deci­ sion for or against the death penalty from nothing more than such an abstract argument. Conversely, if the focus is on some actual society, warts and all, the objection will be heard that too much weight is being placed on particular details of fact, any or all of which could in principle be different, with the result that only a contingent, political (and to that extent, unprincipled) conclusion on the justification of the death penalty can be reached. If in what follows it appears that there is indeed undue emphasis on a particular ‘actual society’ – namely, the United States – the explanation lies in the fact that, among the most modernized countries of the world, the United States stands virtually alone in retaining the death pen­ alty. A thorough understanding of capital punishment thus requires developing a grasp of the situation in the United States.

Religious versus Secular Argument Popular argument over the death penalty, today as in centuries past, often relies on attempting to settle the question by reliance on Holy Writ. (The history of Christian thought on this matter is the subject of a 1997 book by James J. McGivern, The Death Penalty Appraised: A Chronology of Christian Loss and Retrieval, Paulist Press, Mahwah, NJ.) A cautious onlooker to the debate might wonder whether the Bible was being used only to support a moral conviction already arrived at on other (unac­ knowledged) grounds. Thus, Jews and Christians favoring the death penalty have often pointed to the many capital crimes endorsed in the Old Testament and have rested much weight on the biblical passage in which God declares to Noah, ‘‘Whosoever sheddeth man’s blood by man shall his blood be shed’’ (Genesis 9:6 – the origin, incidentally, of the Mormon belief that the death penalty ought to be carried out by a firing squad, as the law in

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Utah required for a century). During the mid-nineteenth century, Protestant clergy debated whether this passage was an imperative (directing civil societies to execute murderers) or a prediction (human societies are likely to punish murderers with death if they can). However that is to be resolved (probably in favor of the imperative interpretation), opponents of the death penalty would point to other passages in the Bible, nota­ bly to the use of exile rather than death as the punishment decreed by God for Cain, the first murderer (Genesis 4:10–16). Christians particularly have often cited Jesus’s defense of the woman taken in adultery, in which he invites those ‘‘without sin among you’’ to cast the first stone, implying that since none present is without sin, she must not be stoned, even though Mosaic law required death by stoning for adultery (John 8: 3–7; what punish­ ment, if any, she did deserve goes unmentioned). Modern interpreters of the Bible, searching for a sound religious basis for modern-day use or repeal of the death penalty, do not rest their case on this or that biblical passage torn out of context in the manner suggested above. Rather, as is shown by the extensive and sophisti­ cated discussion by two contemporary Christian theologians, H. Wayne House and John Howard Yoder, in their 1991 book, The Death Penalty Debate (Word Publishing, Dallas, TX), it is necessary to take a more comprehensive view of the biblical portrait of human nature, human society, and God’s will for mankind. Even then, however, reasonable interpreters attempting to take into account all the relevant evidence will have to agree – as House and Yoder do – to disagree. Secular philosophy has little to learn from the Jewish or Christian debate over the death penalty (or from the Muslim position, which invokes Sharia law derived from the Koran to support the death penalty in Islamic socie­ ties) insofar as the debate within these religious communities rests on appeal to beliefs that only their devotees can embrace. However uncertain or controver­ sial the moral principles are on which secular thought relies, acceptance and employment of these principles at least does not rest on an act of faith, a tradition of worship, or belief in any transcendent being(s). These principles may be divided roughly into three groups: principles of abstract justice, such as the right to life and retributive justice; consequentialist principles, notably versions of utilitarianism; and mixed normative theories that combine features of abstract right with considerations of consequences.

The Right to Life For several hundred years, at least from the philosophical writings of John Locke (1690) to the Universal Declaration of Human Rights (1948) and beyond, Western thinkers

have claimed that all persons have a ‘natural’ or a ‘human’ right to life. (Whether this is but a secular echo of or a surrogate for the biblical ‘‘sanctity of life’’ we need not decide here.) In recent years, especially in the context of international human rights law, statesmen and others have appealed to this right in order to invalidate laws and practices involving the death penalty, as William A. Schabas has shown in his 1993 book, The Abolition of the Death Penalty in International Law (Grotius, Cambridge, UK). Philosophy, however, is bound to raise some difficul­ ties with this approach. First, it is probably impossible to defend the right to life as an absolute right, in the sense that any failure to respect this right amounts to acting in a morally reprehensible manner. The right to life has never been understood to protect an unjust aggressor from being killed by his intended victim acting in self-defense and as a last resort. Most philosophers today would think the right to life does not even protect an innocent party to aggression (e.g., a baby as a hostage tied to the front of a tank about to crush a helpless and faultless victim whose only defense is to fire a tank-destroying cannon). Nor does this right imply any duty to give life-giving support to another without one’s voluntary consent (as is shown in Judith Thomson’s example of the dying violinist whose friends give him life support from the kidneys of a kid­ napped donor). If, as these examples show, the right to life is not absolute, then it is best understood either as a presumption, to the effect that no one may take another’s life without adequate reason, or as a way of establishing the burden of persuasion on anyone who would intentionally kill another person. On either interpretation, further argument is required to decide whether there are adequate reasons for the death penalty – and so it would beg the question to appeal to the right to life to try to settle the controversy. Second, it is quite possible to believe both that all persons have a natural or human right to life and that the death penalty is morally appropriate in certain cases. This was the position of John Locke in his Second Treatise of Civil Government. He insisted that although this right is natural and inalienable, it can be ‘‘forfeited’’ – and it is forfeited by anyone who commits a crime that ‘‘deserves’’ to be punished by death. However, Locke’s criterion for when one forfeits one’s life is quite vague, and in any case the doctrine of forfeiture is more dubious than the claim that lethal force can be justified in self-defense. Nevertheless, opponents of the death penalty cannot dis­ miss the idea of forfeiture for no better reason than the inconvenience it presents to them. Either the doctrine of forfeiture has to be uprooted from the theory of human rights on general grounds (unclear though it may be how that is to be done), or abolitionists must show either that murderers do not forfeit their lives, because they do not deserve to die, or that even though they do forfeit their

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lives, such forfeiture by itself does not authorize anyone to put them to death.

Retributive Justifications No doubt the strongest arguments for the death penalty rest on considerations of retribution. Retributivist think­ ing is more abstract and thus free from contingent facts regarding this or that society, varying crime rates, etc., all of which burden utilitarian thinking and tend to make it inconclusive. Kantian Retribution Retributive purposes and justifications of punishment take many different forms. Perhaps the best known, if not the most influential today, is Kant’s in his Metaphysical Elements of Justice (1797). Murderers must die, he insists, because otherwise ‘‘there is no equality between the crime and the retribution.’’ And Kant makes it clear that by ‘‘retribution’’ he means lex talionis, making the punishment fit the crime by imitating it. Although he does not say it in so many words, he holds that murderers deserve the death penalty; the offender deserves to suffer whatever harm he has caused the victim to suffer (‘‘Any undeserved evil that you inflict on someone else ... is one that you do to yourself’’). Kant’s retributivism, like other versions of the doctrine, places little or no emphasis on using punishments in social defense or on choosing between more and less severe punishments on grounds of their greater or lesser effective­ ness in reducing crime. Nor does Kant worry about whether murderers can typically be said to have acted autonomously, so that their decisions to kill can be treated as the decisions of wholly rational agents. It is difficult to resist the conclusion that although Kant’s theory tells us how to punish fairly the crime of murder in an ideal world, it tells us very little about what to do in the real world. Lex Talionis The gravest problem for Kant’s retributive theory lies in his embrace of lex talionis. However plausible it may be to punish murder with death, it is not plausible to punish rape with rape, torture with torture, arson with arson, etc., as Kant’s contemporary, the English jurist Sir William Blackstone, pointed out in his Commentaries on the Law of England (1765–70). Indeed, lex talionis taken strictly is extremely implausible as the principle on which to appor­ tion punishments to crimes because it is incoherent for the vast majority of crimes. One may reply that nonetheless it is strongly recom­ mended for those kinds of cases where it is coherent, and death for murderers surely is the leading case. But it is not

clear how one is to rebut the objection that as a principle lex talionis is woefully narrow in plausible application and wildly absurd or impossible in most cases, and that those who invoke it rely on it simply because it yields the result they want. Proportionality Because of the awkward consequences of relying on lex talionis, retributivists have preferred to rely on a principle of proportionality, according to which the relative gravity of crimes is to be matched with the relative severity of punishments. Typically, this strategy would require the crime of murder (assuming it to be the gravest crime) to be punished with the severest punishment. From this it does not follow, however, that the death penalty need be used at all. Retributive proportionality need not employ any corporal punishments; instead, the entire penalty schedule could consist of sentences to imprisonment of varying duration and deprivation. Retributivist defenders of the death penalty object that refusing to punish murder with death fails to accord due respect and proper regard for the value of innocent life taken in murder. Without the death penalty, murder becomes just another crime only slightly worse than assault, robbery, or rape, when it is of incomparably graver nature. It is unclear how conclusive this objection is, since it seems to rest on an intuition that some will find baffling: Deliberately killing murderers is the best way to show respect for the innocent victim. Other Problems The history of the death penalty shows that it has been judged appropriate for a wide variety of crimes against the person, property, and the state. From a retributive point of view, however, it is difficult to see how the death penalty can be justified for any crime other than murder. Surely rape, robbery, arson, espionage, treason, and so on cannot be punished with death (as they have been in this century) on retributive grounds. Society has, in other words, rarely if ever contented itself with a purely retri­ butive rationale for the death penalty; defenders of the death penalty have invoked retribution where it suits their purposes, but have not hesitated to rely on claims of superior marginal deterrence and incapacitation where they alone provide the needed result. Even where criminal homicide itself is concerned, however, the retributivist faces unsolved difficulties. Does the retributivist propose to do away with the dis­ tinction between murder and manslaughter, that is, between intentional and unintentional homicide? The harm done in either case is the same. Does the retributi­ vist propose to accept or reject the legal distinction between first – and second – degree murder, that is,

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between willful, deliberate, and premeditated killing and all other intentional killing? How does the retributivist propose to deal with the difference between a murderer who kills one victim and another murderer who kills two or ten? Or is the number of victims irrelevant to what the murderer deserves? What these questions show is that a retributivist must make a variety of compromises to give practical effect to the retributivist principle. Since these compromises undermine the purity of the principle as applied, it remains obscure why one should attach preeminent status to the principle in the first place. Desert Trying to take the concept of desert seriously, as retribu­ tivism claims to do, is extremely difficult in practice, even if not also in theory. A purely legalistic interpretation of desert (convicted offenders deserve as their punishment whatever the law provides) poses no problems of applica­ tion, but it is wholly relativistic in outcome: What prisoner X deserves today as a result of being convicted of crime C may be totally at variance with what prisoner Y deserves tomorrow (or would deserve in a contiguous jurisdiction had he been convicted there today). A mor­ alistic interpretation of desert is no doubt to be preferred, but it is extremely difficult to decide in actual cases what this or that offender deserves, morally speaking. It is even unclear just what are the appropriate criteria for moral desert. No doubt guilty offenders (whether convicted or not) deserve to be punished, but what punishment they deserve – the heart of the matter where the death penalty is concerned – remains elusive. Could a retributivist oppose the death penalty? Some have – at least they claim to be retributivist opponents of executions. They seize the issue of desert and turn it inside out, arguing that in an unjust society (all societies are relatively unjust), it is impossible to mete out punish­ ments according to offenders’ moral desert. The result (they argue) is that if you take desert seriously, you will have to oppose singling out some offenders for the irrevocable punishment of death in the spurious belief that they deserve it and that other offenders do not. Conclusion Finally, it should be noted that actual behavior shows how weak the grip of a consistent retributivism is on those who must deal with the death penalty – prosecutors, capital trial jurors, legislators, and clemency authorities espe­ cially. Persons occupying these offices show by their actual conduct that they pick and choose among murder cases, and among accused and convicted murderers, which are the ones who will get the death penalty and which will not. As there is at best little consistency from

jurisdiction to jurisdiction and from case to case in the application of retributive thinking, such selectivity con­ stantly risks being arbitrary and unprincipled. These inconsistencies may not point to any flaw in retributivism, but they do warn against overconfidence in thinking one can rely on putative retributivism in the real world of criminal justice.

Utilitarian Justifications Early Utilitarians The essence of the classic utilitarian argument over the death penalty is deciding whether the misery suffered by the condemned man (anticipating his death, followed by actually dying) and his loved ones (if any) outweighs or is outweighed by the benefits through incapacitation and deterrence the execution would provide. The classic uti­ litarians themselves were somewhat divided in their conclusion on the question. Beccaria and Bentham

Over the past four centuries of Western philosophy, few philosophers have openly opposed the death penalty; Jeremy Bentham is probably the first major thinker to have done so. Bentham’s opposition to the death penalty was apparently inspired by a small but influential book published in 1764, On Crimes and Punishments, by the young Italian jurist Cesare Beccaria. Beccaria favored abolition, but he also favored a very severe alternative of life imprisonment without the possibility of release except by natural death. He thought the deterrent effects of dying at the hands of a public executioner were inferior to those provided by the prospect of a lifetime’s loss of freedom. Bentham agreed; first in his Rationale of Punishment (1775) and late in life in a short pamphlet ‘‘On Death Punishment’’ (1831), he argued on several grounds that the death penalty was inferior to imprisonment; it lacked ‘‘frugality,’’ ‘‘remissibility,’’ ‘‘profitability,’’ and ‘‘equabi­ lity,’’ in contrast to imprisonment, and also had no indisputable advantages of deterrence or incapacitation (or so he believed, but his views on the point were unsupported by any convincing evidence). Thus, as it might be put today, Bentham believed that a cost-benefit analysis of capital punishment versus life imprisonment would lead the rational legislator to prefer the latter. John Stuart Mill

A generation later, however, John Stuart Mill argued in Parliament (1868) against abolishing the death penalty entirely. Abolitionists overestimate the ‘‘humanity’’ of a lifetime behind bars and overestimate the inhumanity of ‘‘a short pang of a rapid death.’’ The death penalty is to be preferred on utilitarian grounds to imprisonment for the

386 Capital Punishment

occasional ‘‘atrocious crime.’’ (This claim is hard to defend on utilitarian grounds; Mill had no evidence to show that only incapacitation by execution would suffice to prevent recidivism in such cases, and he is obviously flirting with retributive reasons, as he is when he attempts to tar his opponents with ‘‘effeminancy.’’) Factors Relevant to Utilitarian Reasoning on the Death Penalty All utilitarian reasoning about social policy, including the death penalty, is highly sensitive to the actual facts, and the facts are likely to differ over time and among societies. As a result, it is impossible to pronounce once and for all whether a utilitarian ought to favor or oppose the death penalty either in general or for some specific offense. As a case in point where utilitarian thinking on the subject can be examined, one cannot do better than consider the evidence accumulated in the United States, where the relevant facts have been studied with greater care than anywhere. General deterrence

Chief among utilitarian concerns is the deterrent effect of penalties on the general public and the evidence for or against a superior marginal deterrence for the death pen­ alty over life imprisonment (with or without the possibility of parole release or commutation of sentence). In the United States during the 1950s and 1960s, sociol­ ogists argued that there was no evidence favoring the death penalty over imprisonment as a general deterrent: (a) abolishing the death penalty in a given jurisdiction was not usually followed by a higher capital crime rate than in neighboring jurisdictions retaining the death penalty; (b) reintroducing the death penalty in a given jurisdiction was not usually followed by a lower rate of capital crimes; and (c) police and prison guards were not more frequently murdered in abolition jurisdictions than in death penalty jurisdictions. In the early 1970s, however, new techniques of research involving multiple regression analysis borrowed from macroeconomics appeared to suggest that each actual execution in the period 1932–70 resulted in several fewer criminal homicides. But this research – both the methods and the results – was extensively criticized, notably by the National Academy of Sciences. The authors of its report, Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (1978), declared, ‘‘We see too many plausible explana­ tions for [these] findings ... other than the theory that capital punishment deters murder.’’ Further analysis during the 1980s and 1990s has confirmed this skeptical conclusion. Few, if any, professional American criminol­ ogists today would endorse the proposition that the evidence shows the death penalty in the United States

during the bulk of the twentieth century has been a marginally better deterrent than imprisonment. As a result, a utilitarian argument over the death pen­ alty must conclude that, so far as the United States is concerned, there is no basis in marginal deterrence on which to prefer the death penalty to the less severe alter­ native of long-term imprisonment. Some still defend the death penalty on grounds of its superior marginal general deterrence by claiming that since it is conceded on all sides that death is a more severe punishment than imprisonment, it must be a better deter­ rent even if only in a few undetected cases. But this a priori argument cannot be put to any empirical test, and so utilitarians and other consequentialists cannot reason­ ably appeal to it in an effort to offset the lack of support the death penalty as a deterrent receives from all the available empirical evidence previously discussed. Incapacitation

Evidence for the incapacitative effects of the death pen­ alty versus imprisonment is difficult to obtain. While it is reasonably clear how many capital offenses are com­ mitted by recidivist capital offenders who were not executed, it is impossible to state how many capital offenses were not committed because a given capital offender was executed. By far the best empirical study of the problem involved tracing the post-resentencing conduct in prison and on parole of the hundreds of prisoners under death sentence in 1972 who were not executed because of the Supreme Court’s ruling in Furman v. Georgia (1972). Of the 453 death row prisoners not executed whose cases were scru­ tinized, seven were later convicted of a second homicide (six while in prison, and one after release). On the other side of the ledger, four inmates on death row at the time Furman was decided were later shown to have been wrongly convicted. If such statistics are generally reliable and all convicted murderers sentenced to death were actually executed, it would appear that for every innocent prisoner executed, two innocent persons would not be murdered by recidi­ vist murders. What a utilitarian should make of this generalization is unclear; what is clear is that inflicting the death penalty absolutely incapacitates that offender, whereas incarcerating an offender does not. This fact is bound to give a slight edge in favor of the death penalty for those who reason by appeal to consequences. Risk of wrongful execution

For more than two centuries, the most potent argument against the death penalty has been the risk of executing the innocent. What, exactly, is that risk? In the postFurman study just summarized, four out of 558 death row prisoners were later shown to be innocent; fortu­ nately, none was executed. In the most extensive study

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undertaken to explore this problem, in which roughly 600 capital cases spanning the years 1900 through 1994 were examined, the investigators concluded that over 400 were wrongly convicted and two dozen involved the execution of an innocent person. During the same years, more than 7000 persons were executed and several more thousand were convicted of capital crimes and sentenced to death. Calculating the risk of wrongful execution from these data is all but impossible. Bentham thought this risk was the gravest objection to the death penalty; J. S. Mill agreed in theory but confidently declared that the risk of execut­ ing the innocent under British law was too remote to take seriously. More recent utilitarians (notably, H. L. A. Hart) have acknowledged the relevance of this consideration but have shown no inclination to estimate the magnitude of the problem. Nor have they suggested that only a utilitarian need worry about the risk of executing the innocent; indeed, non-consequentialists, too, must be con­ cerned with it. In any case, the role played in utilitarian thinking of the risk of executing the innocent must not be overstated. From the standpoint of those who oppose the death penalty and seek to vindicate their convictions by utili­ tarian considerations, the risk of executing the innocent can play only a small role. Any number of acceptable social practices (mining, fire fighting, space exploration) involve risk to the innocent. All parties to the death penalty controversy presumably deplore executing (or even convicting and sentencing to death) the innocent; the controversy must focus on the merits of executing the guilty. Even if there were zero risk of executing the innocent – as would be true in an ideal society (as described above) – hard-core abolitionists would presum­ ably oppose the death penalty. Whether they could do so on purely utilitarian grounds is doubtful. The metaphoric long bookshelf of volumes published in the last two decades on the ‘innocence issue’ attests to the fact that the possibility of executing an innocent person has become an increasingly prominent feature of debates over the death penalty. (The first of these was the 1994 book by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam, In Spite of Innocence, Northeastern University Press, Boston.) More than eight other books on the theme have appeared since. A sobering indication that the danger is real lies in the fact that more than 130 deathrow prisoners were exonerated between 1973 and 2009, with more exonerations likely to come. Evidence in most of these cases has come in the form of results from highly sophisticated DNA testing. This new technology has dramatically altered the nature of the debate.

that the death penalty as actually administered falls pre­ dictably on members of minority races (notably African Americans and Hispanics) and on those who are at the mercy of court-appointed lawyers or public defenders, overworked and underpaid officers of the court who are often inexperienced or of dubious competence. Class bias has not been much studied, but racial bias has been. The most extensive empirical research on that topic has shown that in the South, the murder by a black person of a white victim is measurably more likely to be prosecuted as a death penalty case, leading to a conviction and a death sentence, than murders where the victim and offender are of the same race or where the offender is white and the victim black. Conceding for the sake of the argument that the facts are as described above and – more important – that they are true of the nation as a whole and are resistant to change, a purely utilitarian evaluation would attach no great weight to such bias. Evidence shows that most of those under death sentence have a prior criminal record, in many cases of grave crimes against the person. No great social loss is incurred if such persons are dealt with more rigorously by the prosecution and provided with less effective defense than other murder defendants. Utilitarians since Bentham, however, have insisted on a principle of equality (‘‘each to count for one, none for more than one’’), and if that principle is taken (as J. S. Mill took it) to be part of ‘‘the very meaning’’ of the principle of utility, or if it is taken as a supplementary principle, then racial and class bias inherent in a system of punishment must count heavily against it. But in the United States, the racial and class bias of the death penalty system is part and parcel of the more inclusive racial and class bias of the entire criminal justice system. No empirical research has established that the recent or current death penalty system is more biased against nonwhites and the poor than is the rest of the system. All one can claim is that the consequences of that bias are worse in their impact on convicted offenders if the death penalty is involved than where lesser punish­ ments are concerned. For this reason the egalitarian consequentialist is likely to prefer a system of less severe punishments. Precisely because the consequences of racial bias in death cases can be so harmful – irreversibly so – new analysis of the subject has the potential to throw a brighter light on this aspect of the criminal justice system. (A prime example is the 2006 book edited by Charles J. Ogletree and Austin Sarat, From Lynch Mobs to the Killing State: Race and the Death Penalty in America, New York University Press, New York.)

Racial and class bias

Whatever may be true in other societies or at other times, a prominent feature of the criticism of the death penalty in the United States during the past half-century has been

Cost

Empirical studies of several different sorts during the 1980s and 1990s in the United States have tried to

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estimate the economic costs of a death penalty system (in which every person charged with criminal homicide is a potential death penalty defendant) versus a non-death penalty system. All these studies have concluded that a death penalty system is significantly more costly than the alternative. A careful study in 1993 put the additional cost per case at nearly a quarter of a million dollars ($216 000). More recently, however, by 2009 a study by the Urban Institute had found that a death penalty trial on average costs the state where it is being conducted almost $2 million more than a murder trial where the death penalty was not being sought. Furthermore, the Death Penalty Information Center in Washington, D.C., estimates that merely keeping an inmate on death row adds $90 000 more in additional security costs, each year, over the costs of keeping a prisoner in the general population. A better understanding of these economic issues has begun to play a newly significant role in discussions about possible abolition: In 2007, New Jersey abolished the death penalty, largely for fiscal reasons; in 2009, New Mexico followed suit. Ten other states are considering bills to abolish, largely because of the costs, turning the moral debate more into a matter of fiscal calculations. This additional cost has to be deeply troubling to the utilitarian, and it requires offsetting advantages lest on this ground alone the death penalty system is to be rejected. What those advantages are or might be, as judged by the utilitarian, have already been canvassed: general deterrence and incapacitation. As considerations to cancel and outweigh the economic costs, they are not very promising. Of course, it is open to the utilitarian who wants to preserve the death penalty to recommend policy changes to reduce the costs of the death penalty system. Since most of those costs occur at the trial level (not, as many think, in post-conviction appeals), the imaginative utili­ tarian will explore ways to speed up the voir dire and jury deliberations, reduce the role of expert witnesses for the defense, and curtail funds for investigation of the crime and for bringing defense witnesses to court. But as such reforms come close to breaching the dike of due process, the utilitarian must tread carefully lest rules and practices of general application in the criminal justice system and defensible on utilitarian grounds be abandoned or severely compromised in the search for cheaper ways to conduct death penalty trials. Evaluation

A utilitarian contemplating the death penalty in the United States today would be strongly inclined to con­ clude that it ought to be abolished for all crimes, on the ground that it violates the principle of using the least restrictive means to achieve valid state objectives. Bentham’s objections to the death penalty – its lack of ‘‘frugality’’ and the rest – remain as true today as in his

day. To these must be added the factor of outright eco­ nomic cost and the evidence regarding general deterrence and incapacitation unavailable in his day. It is difficult to see how a utilitarian today could disagree with Bentham, when he wrote (1831), ‘‘The punishment of death—shall it be abolished? I answer—Yes. Shall there be any excep­ tion to this rule? I answer ... No.’’

Conclusion Over the past three centuries, philosophers have arrayed themselves across the normative spectrum in their views on the death penalty. Some believed it must be strictly inflicted on all murderers. Others wanted to confine it only to a few cases of the most atrocious crimes. Still others have conceded that although in the abstract, murderers do indeed deserve to die for their crimes, in actual practice societies are so unjust in their distribution of benefits and burdens, opportunities and responsibilities, that they are incapable of fair application of the death penalty and so must refuse to employ it. And other philosophers have favored complete abolition of capital punishment. Philosophers do not agree over who has the burden of proof: Is it those who would change current law (whatever it is), or is it those who favor putting some criminals to death rather than confining them in prison? For the retri­ butivist, justice in punishment comes first; for others, not taking another person’s life unnecessarily comes first. Perhaps the most important philosophical question in the death penalty debate is this: Does a given theory of punishment (preferred over other theories on whatever grounds) recognize any principle that sets an upper bound to permissible severity or cruelty in punishments? Clearly, utilitarianism does not; there are no doubt good reasons for a utilitarian to oppose torture and cruel punish­ ments, but not because any principle summarily rules them out. Retributivism, too, lacks any such principle; retributi­ vists are willing to impose as deserved punishment whatever is appropriate given the nature of the crime – and that entails insisting on terribly inhumane and cruel punishments, given the savagery manifest in some crimes. In this context, it is worth remembering that the United States Constitution and international human rights law do endorse such a constraining principle (pro­ hibiting ‘‘cruel and unusual punishments,’’ and ‘‘cruel, inhumane or degrading treatment or punishment,’’ respectively). What kind of moral theory might best accommodate such a constraint – either as a first principle or as a special case of some more inclusive principle – remains to be seen. As things stand, we have here an interesting case where positive law breaks ground for philosophy, rather than the reverse. See also: Human Rights; Kantianism; Utilitarianism.

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Further Reading

Biographical Sketch

Banner S (2002) The Death Penalty, An American History. Cambridge: Harvard University Press. Bedau HA (2004) Killing as Punishment: Reflections on the Death Penalty in America. Boston: Northeastern University Press. Bedau H and Cassell P (eds.) (2004) Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford University Press. Blume JH and Steiker JM (eds.) (2009) Death Penalty Stories. New York: Foundation Press. Hood R and Hoyle C (2008) The Death Penalty: A Worldwide Perspective. Oxford: Oxford University Press. Lanier CS, Bowers WJ, and Acker JR (eds.) (2009) The Future of America’s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research. Durham, NC: Carolina Academic Press. Mandery EJ (2005) Capital Punishment: A Balanced Examination. Sudbury, MA: Jones and Bartlett. Palmer LJ, Jr. (2001) Encyclopedia of Capital Punishment in the United States. Jefferson, NC: Macfarland and Co. Sarat A (ed.) (1999) The Killing State: Capital Punishment in Law, Politics, and Culture. New York: Oxford University Press. Zimring FE (2003) The Contradictions of American Capital Punishment. New York: Oxford University Press.

Hugo Adam Bedau, Ph.D. (Harvard, 1961) is the Austin B. Fletcher Professor of Philosophy, Emeritus, at Tufts University in Medford, Massachusetts. He is best known for his long-standing interest in issues having to do with punishment, the death penalty in particular. He edited the standard work on capital punishment, The Death Penalty in America (1st edition, 1964; 4th edition, 1997), and co-edited Capital Punishment in the United States (1976) and Debating the Death Penalty (2004). He is the author of The Courts, the Constitution, and Capital Punishment (1977), Death Is Different (1987), and Killing as Punishment (2004), and co­ author of In Spite of Innocence (1992). In 1997, Bedau received the August Vollmer Award of the American Society of Criminology, and in 2003 he received the Roger Baldwin Award from the American Civil Liberties Union of Massachusetts. A long-time (and founding) member of the National Coalition Against the Death Penalty, he has served on its board and as its chairman; he is currently on the board of the Capital Punishment Research Initiative in Albany, New York.

Care, Ethics of N Biller-Andorno, University of Zurich, Zurich, Switzerland ª 2012 Elsevier Inc. All rights reserved.

Glossary Care A practice, attitude, or value of responding to needs – of others but also of oneself. Categorical imperative Universal moral principle as defined by Kant, which states in one of its formulations that we should act in such a way that we never treat Humanity, whether in ourselves or in others, as a means only, but always as an end. Empathy The ability to emotionally and rationally reconstruct the perception of a concrete other while recognizing the limitations of such an endeavor.

Care: Some Conceptual Clarifications Human relationships play a central role in ethics. Defining our responsibilities to ourselves and to others, critically reflecting on concrete relationships we find ourselves in, and considering their impact on who we consider or would want ourselves to be – these are tasks that form a constitutive part of our everyday moral lives. The way we care for each other shapes not only the understanding of ourselves as individuals but also the societies we live in. Caring relationships are the basic fabric of all functional social units – partnerships, families, and communities. How to shape those relationships is a question that is not limited to close personal contacts; it is as salient for distant relationships, including personal strangers and future generations. It can in fact be extended to comprise our relationships with nonhuman animals or the environment. Given the relevance – both broad and deep – of caring to ethics, it is surprising that ethical theories have tended to focus on rational moral agents that seem to be con­ ceptualized primarily as independent and self-sufficient, on duties that originate in highly abstract universal prin­ ciples, and on contracts between persons who focus on their own interest vis-a`-vis the interest of the other party. Care ethicists have criticized the lack of explicit emphasis on care as a major conceptual basis for moral theorizing. They see the selective reliance on elements – such as contractual obligations, impartiality, noninterfer­ ence, and self-determination – that are prominent in some spheres of public life (e.g., economics or law) as insuffi­ cient or even dangerous, devaluing the actual relationships we have with particular others.

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Feminism A theoretical and political discourse concerned with issues of gender difference, aiming at social, political, and economic equality of men and women and at promoting women’s rights (i.e., equal rights for women). Heinz dilemma Heinz’s wife is desperately ill, but Heinz does not have the money to pay for the drug. The pharmacist refuses to hand out the drug for less. Should Heinz steal the drug? The dilemma was used in the elaboration of Kohlberg’s model of moral development.

Care is perceived as a – if not the – fundamental value, even more fundamental than justice. Because we are all for a substantial part of our lives dependent on being cared for, it is a prerequisite for personal existence. At the same time, care is considered as an activity, a work or labor, that is characterized by requiring involvement (or even ‘engrossment,’ as Nel Noddings called it) with the other. In that sense, care does not mean ‘caring about’ in a very general, noncommittal way but, rather, an active ‘taking care of.’ To some, ‘caring for’ is a still more appropriate term because it addresses the affective com­ ponent of caring labor. Indeed, caring is also regarded as an attitude or disposition, which precedes or accompanies a care activity. Not only as a value but also as a practice, care is not given due attention. Those of us who are mostly involved in caring work – taking care of children at home, of patients in a hospital, and of elderly people in a nursing home – are likely to be underpaid (if paid at all) and of relatively low social status. Although care ethicists have different views about how care should primarily be conceptualized and how it should be linked to existing moral theories, they all agree that care deserves more attention – be it as a value, as an attitude, or as a practice.

The ‘Care versus Justice’ Debate and Its Roots There are different ideas about the theoretical status of ‘care’: Some argue it is a theory of its own, whereas others see it rather as an element or perspective to be integrated

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in other theories. Still, there are a number of common features, which were defined during the ‘care versus jus­ tice’ debate that gained considerable momentum in the 1990s. The difference starts with the ontological or anthro­ pological premises: A care perspective views human beings primarily as interrelated and dependent on each other, whereas a justice perspective would rather focus on autonomous individuals. Second, regarding the episte­ mological premises, a care perspective considers moral judgments as contextual and moral standpoints as posi­ tioned, whereas a justice perspective could be characterized by universalism, objectivism, and impartial­ ity. A care perspective also values the epistemic potential of emotions in appreciating moral conflicts and identifying solutions, whereas a justice perspective typically relies on reason. Third, a care perspective sees moral conflicts as conflicting responsibilities based on the perception of different needs, whereas a justice perspective would emphasize conflicting rights. Fourth, from a care perspec­ tive, tools to solve moral conflicts consist of an empathic reconstruction of the perspective of the concrete other as well as a conscious balancing of responsibilities toward other(s) and self, whereas a justice perspective focuses on the generalized other and the role of logical deductive thinking – the recognition and correct application of rules. Fifth, what is at stake in moral conflicts from a care perspective is responding to needs (especially of those particular others for whom we have taken responsibility) while avoiding to hurt, and maintaining or improving particular relationships that may well be asymmetric and not freely chosen; a justice perspective is mainly concerned with equality, reciprocity, and respect for autonomy. Finally, moral maturity, from a care perspective, consists of the ability to capture the complexity of human relation­ ships and the mutual connectedness of self and other, together with the capacity to appropriately balance care for others and for oneself; a justice perspective would rather posit the consistent deduction of moral decisions from generalized principles. This is a very brief sketch of different priorities that are usually identified. Much of the debate relates back to the seminal work of Carol Gilligan. Gilligan, as a moral psychologist, challenged Lawrence Kohlberg’s model of moral development. Kohlberg, building on Piaget and Kant, had described several distinct, progressive stages of moral development. After a premoral phase, in which there is no distinc­ tion between good and bad, children enter the preconventional phase, which contains different stages. Stage 1 (obedience and punishment orientation) is char­ acterized by deference to a superior power and by an avoidance of punishment, which is regarded as a value in itself. The physical consequences of an act determine if it is judged as morally ‘right’ or ‘wrong.’ In stage 2

(instrumental relativist orientation), ‘good’ means having one’s own needs met. There is some interest in the needs of others, but primarily only if this promotes one’s own well-being. In the conventional phase, fulfilling the expectations of family members and one’s community or country is con­ sidered a value in itself. In stage 3 (interpersonal concordance orientation), behavior is judged by the approval it receives from others. Individuals intend to be a ‘good boy’ or ‘good girl.’ In stage 4 (law and order orientation), respect for authorities and rules becomes important because they help to maintain social order. The postconventional phase is marked by the search for moral values and principles that are valid indepen­ dently of the authority of particular groups or individuals. In stage 5 (social contract orientation), acting rightly is measured against standards that have been scrutinized and approved by society. Individuals can hold different values and opinions, so there is a need for procedural rules to reach consensus. There is a certain inclination toward a utilitarian approach in judging the adequacy of standards such as laws. In stage 6 (universal ethical prin­ ciples), individuals act rightly not because they fear punishment but, in order to serve their own purposes, because of social expectations, to act in accordance with existing law, or because such action has been agreed upon in a consensus process. Rather, right acts are determined through the application of ethical principles that are comprehensive, consistent, and universal (e.g., the Kantian categorical imperative). This model is based on a number of empirical studies, particularly a longitudinal study including a sample of boys and young men who were confronted with the ‘Heinz dilemma.’ When Gilligan extended these studies to include female participants, she realized that the girls she interviewed frequently ended up in lower stages of development. To her, however, these voices did not sound more morally immature but, rather, different. As a consequence, she described an alternative model of moral development. Gilligan’s model comprises three levels and two tran­ sitional phases. Level 1 is characterized by a purely egocentric perspective, with a view to securing one’s own survival. In the first transitional phase, this attitude is criticized as selfish; a new understanding of the rela­ tionship between self and other leads to the recognition of the concept of responsibility. Level 2 centers on the elaboration of a conventional concept of responsibility, together with a maternal morality that is concerned about the well-being of others. ‘Good’ is understood as being synonymous with ‘care for others.’ In the second transi­ tional phase, relationships are critically examined for disbalances that result from an exclusive focus on caring for others rather than for one’s own needs. There are first attempts to distinguish care from self-effacement. In level

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3, the tension between selfishness and responsibility is resolved through a new understanding of the relationship between self and other. ‘Good’ means finding the right balance in caring for others and for oneself. Care – with its rejection of exploitation and hurting – becomes the lead­ ing principle for moral judgments. Gilligan’s moral agent does not claim impartiality: His or her moral judgments depend on situative and relational contexts, and the preceding moral reflections draw on empathy, compassion, and a sense of responsibility for self and others. Gilligan did not believe, however, that what she called ‘ethic of care’ or ‘care orientation’ should replace the ‘ethic of justice’ as expressed in Kohlberg’s model. Rather, she considered them as two distinct ways of looking at moral problems – two perspectives that can be taken in alternation but not at the same time. Gilligan, as a moral psychologist, did not aim to ela­ borate an ethical theory. Her findings, however, were taken up by moral philosophers, many of them feminists, who found in Gilligan’s work a suitable anchor to articu­ late their dissatisfaction with what they considered to be the one-sidedness of much traditional and current moral theorizing. In the ensuing debate, themes emerged such as the political implication of an ethics of care, the theore­ tical status as a theory of its own versus a perspective to be integrated with existing theoretical frameworks, the rela­ tionship of care and justice, and the compatibility with feminist concerns.

The Ethic(s) of Care: Criticism and Misunderstandings The ethics of care – Gilligan’s empirical work and its philosophical development – did meet with considerable criticism from various sides. An Ethics for Women Only? Carol Gilligan’s claim, based on her empirical findings, was that girls and women tend to talk ‘‘in a different voice’’ about moral conflicts than boys and men. This statement has been challenged, on both descriptive and normative grounds. In one of her major studies, Gilligan had used abortion as a moral conflict to be discussed by female study participants. Because this was a topic parti­ cularly close to women, critics argued, it is not surprising that Gilligan witnessed a care-focused orientation. Had she chosen a topic that was equally close to men – such as refusing military service – they would have shown the same focus on avoiding to hurt, caring for self versus others, responsibility, empathy, and affective responses. Espousing a care orientation, so the claim goes, is not so much an issue of gender as it is of proximity to the subject at stake.

Another criticism pointed to the fact that Gilligan had recruited particularly white middle-class women into her studies but generalized her findings to all women irre­ spective of social class, ethnicity, or other factors that may influence individual moral orientation. However, Gilligan’s claim of a gendered moral per­ spective was not just criticized on descriptive accounts but also challenged at the normative level: Should we consider women as having (or tending to have) a moral orientation distinct from that of men? Should the ethic of care remain the exclusive domain of women, a special morality for the ‘fairer sex’? If the ethics of care is thought to add important insights to traditional mainstream ethics, should we not wish for everyone to embrace it? If we start with a separate ethics for women, are we going to develop one for different ethnic or age groups? To this it needs to be said that Gilligan only described a correlation she found and never suggested that only women should embrace a care orientation. It is indeed important to keep the two questions separate: (1) Do women more frequently argue from a care orientation than men? and (2) Should women, or even everyone, adopt a care orientation (as a replacement or in addition to a justice orientation)? This would assume that the care perspective is superior or at least complements the justice orientation in a significant way. But beyond the question of the ethic of care being gender specific there is yet another, related concern: Is the care orientation mainly used and – again, normatively speaking – is it more appropriate in the private realm? This would raise similar issues of splitting ethics, if not according to groups of persons but to different areas of life. Also, because the private realm in many societies is still predominantly the domain of women, a similar gen­ der connotation would result. This concern has been addressed by several care ethicists who have shown that the ethics of care does have a political dimension in that it prompts a scrutiny of societal and institutional conditions with a view to their being conducive to the flourishing of caring relationships. Undermining Feminist Achievements? Feminists have not univocally welcomed the ethics of care. Some feared it would reinforce the separation of private and public – justice in public affairs and different, somewhat softer standards for the intimate world at home. Making clear how seemingly private issues – such as the unfair distribution of duties in the household or access to birth control – are public issues has required a major effort on the part of feminists, as scholars and as activists. The ethics of care seemed to favor redefining private life as detached from the public by suggesting a moral outlook on matters that would apply mainly to close relationships. Removing private life from the demands of justice

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understood as a universal principle would work in favor of maintaining or returning to a conservative, patriarchal social order. Rather than valorizing caring work and rele­ gating women to the private, these voices argued, we should prioritize the recognition of their equality, their autonomy, and their rights. The charge that an ethics of care might in fact put women who adhere to a care orientation at a higher risk of burnout and exploitation is a serious one. However, it seems to rest on a misunderstanding: The ethic of care does not promote women’s self-effacement. On the con­ trary, according to Gilligan’s model it is a sign of moral maturity to be able to critically reflect societal expecta­ tions, to examine existing social structures for their ability to accommodate and further caring relationships and practice, and to make conscious decisions on what needs to be attended to, aiming at a balance between the care provided to others and to oneself. Old Wine in New Bottles? The ethics of care caused irritation not only in the feminist camp but also among traditional, mainstream philosophy. It was considered conceptually unclear, of questionable theo­ retical status, taking up themes that had been voiced time and again in the history of philosophy. Care as a philoso­ phical concept was identified from antiquity on through the Middles Ages to modern philosophical approaches, such as Kierkegaard’s or Heidegger’s. Other reference points were Hume’s moral sentimentalism and Schopenhauer’s ethics of sympathy. The issue of historical parallels cannot be discussed in detail here. At this point, may it suffice to emphasize that the fact that relevant links can be established with related or comparable topoi that have emerged and re-emerged over the history of philosophy does not weaken the necessity to discuss these themes again, in new constella­ tions and in new contexts. The concept of justice as well is an ancient one, and yet theories of justice are considered a timely and serious field of study in philosophy. It would indeed be surprising if a major element of moral reasoning was discovered for the first time in the twentieth century. What is certain, however, is that the ethics of care did not originate as a plagiarism from classic philosophy but from the empirical observation of different moral orienta­ tion, on the one side, and, on the other side, the search for a fuller account of moral theory and, in fact, moral life than those offered by approaches based on abstract, universaliz­ able principles that are to be applied impartially. Care as an Aspect in the Application of Justice? The theoretical status of the ethics of care has remained somewhat controversial. Whereas some consider the ethics of care to be a full theory of its own, or at least

see the potential of it being developed into one, others consider it an orientation or perspective that can be integrated into existing theories. Gilligan did not use the term ‘ethics’ but ‘ethic’ of care, without a definite claim to its theoretical status. If the ethics of care is considered a full theory, then the question arises if it is to be regarded as a comprehensive and universal theory. If it is not, it runs into the problem of being a theory for specific domains only, such as the private, which has already been discussed as problematic. If it is to be considered a universal theory, it certainly needs to encompass justice as well because it is difficult to imagine an ethical theory that can do without it. This, in turn, raises the question of whether justice can be sub­ sumed under a care theory or if care is not rather to be considered as secondary to justice. Whereas some consider justice to comprise care con­ cerns, care theorists such as Virginia Held have argued that care is in fact prior to justice: There can be care without justice – think of the precious services in the care for children, the sick, and the elderly, which are offered with minimal or no remuneration – but not the other way around. Societies can be unjust, but without caring relationships they cannot exist, given that all indi­ viduals are dependent on care for significant parts of their lives.

Theoretical Considerations There have been very different ways of tying the ethics of care to the existing literature. Whereas some have tried to work out theoretical accounts that can stand on their own, others have searched to retrieve care elements in other moral theories and to make them more prominent within these accounts. The Ethics of Care as a Feminist Ethics It may seem natural to group the ethics of care with feminist ethical theories. However, care accounts met with a rather critical reception among feminists. On the other hand, some care theorists considered their accounts as feminine rather than feminist. Although care approaches typically value women’s moral experience, not all of them necessarily have a programmatic focus on combating the subordination of women. Some authors have probed ‘maternal thinking’ as an inspiration for ethics; others have explored how women use their emo­ tional resources to guide them as caregivers. Still others have hesitated to consider such contributions as genu­ inely feminist because they lack a focus on women’s autonomy, liberty, and independence, as well as consid­ erations of fairness and equality. For care theoreticists who consider themselves feminist, showing how their

394 Care, Ethics of

accounts do not neglect the social and political dimension and how care and justice can be integrated is of great concern. The Ethics of Care as a Form of Virtue Ethics The ethics of care is frequently taken to address questions of a ‘good life.’ This means it does not limit itself to determining if actions are ‘right’ or ‘wrong’ but reflects on the moral agent in his or her relatedness to others, on his or her moral motivation and emotional responses. Further explorations in these directions may bring the person’s character and life plan into view. These features, however, are typical of virtue ethics. Moreover, the focus on appropriate contextual moral decisions that is charac­ teristic for the ethics of care has been compared to the Aristotelian concept of phronesis (practical wisdom). Other authors have instead focused on parallels with Hume’s moral sentimentalism. Hume has received a vir­ tual ethical reading lately, leading to new forms of virtue ethics. Annette Baier has identified a number of points that illustrate a proximity of Hume’s ideas with the ethics of care. For instance, morality for Hume does not consist of the rational application of universal rules but, rather, the cultivation of sympathy as the more fundamental capacity. Moral behavior is the result of efforts to mini­ mize conflicts through a conscious reflection of one’s own feelings and needs as well as those of others. Our moral motivation does not primarily stem from our recognition of rules as general principles but from our capacity for sympathy. Reason is not constitutive for morality but, rather, an aid to reflect on and possibly correct one’s sentiments. Finally, the Humean self is not primarily individualist and egocentric but oriented toward contacts with others. The relationships the self finds itself in are frequently intimate, unchosen, and asymmetric. As these selected parallels illustrate, the ethics of care can indeed be seen in the tradition of virtue ethics approaches and may well inspire the elaboration of mod­ ern forms, neo-Aristotelian or other. A Care Perspective within Kantian Ethics Considering the ethics of care as a feminist ethics or as a form of virtue ethics are not the only ways in which the ethics of care can be conceptualized. The Kantian ethics may at first sight seem an unlikely candidate, usually being perceived as a proponent of an ethics of justice. This, however, renders the question of a possible integra­ tion even more interesting. Certainly, the premises of the ethics of care differ from Kantian ethics: The ethics of care focuses on an interdependent instead of an indepen­ dent self; it defines moral conflicts not as competing rights but, rather, as conflicting responsibilities; it does not pre­ sume an impartial moral point of view but focuses on

individual, concrete moral agents that are seen as situated selves; and it does not seek to identify the one and only correct moral decision but instead aims to change situa­ tions in a way that avoids a clash of the interests at stake. All of these elements seem quite antithetical to a Kantian ethics, which is known to be characterized by conceiving of virtue as complying with the principle of pure practical reason, not because of consequences for concrete individuals but out of respect for the principle. This principle, the categorical imperative, is valid for all reasonable beings. It is this very capacity to reason and to act in accordance with moral law out of respect for this law that is the basis for human dignity. Without entering into details, it can be stated that there are a number of elements within Kantian ethics that seem to open the door for care concerns, such as the duty of empathy or the recognition of compassion as an – albeit secondary – source of moral motivation, implying an indir­ ect duty to cultivate emotions. Other elements amenable to a care-oriented interpretation are the maxims, which can take contextual aspects into account, or the respect for others as ends in themselves, which presupposes an interest in how others would define themselves in that regard. The fact that we seem to have an idea of which maxims to test for their compatibility with universal moral law leads to the assumption that we have some pre-existing moral knowl­ edge; we do have an understanding of what is morally salient and what is not. It may well be that the ethics of care can help identify problematic aspects of Kantian deontology and elaborate areas that have remained underdeveloped. Interestingly, the ethics of care has not only met with a controversial reception but also its theoretical develop­ ment has taken rather different ways, from its being conceived as a (feminist) theory in its own right to its representing a perspective that could be explored further within the framework of other theories. Beyond the rela­ tionship to virtue ethics and deontology, other approaches have been identified as addressing care con­ cerns, among them the work of phenomenologists such as Levinas, religious ethics such as Christian ethics, or the­ ories from non-Western contexts such as Confucian ethics or African approaches with their strong emphasis on community and narrative. Others, such as the compat­ ibility with pragmatic ethics, still remain to be explored.

Implications of a Care Perspective: The Health Care Setting as an Example The ethics of care has provided important stimuli for rich, multifaceted theoretical explorations. However, what are the implications for practical decision making in concrete contexts or for a conceptual analysis of problems that

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present themselves in specific settings, such as health care? In fact, the health care setting is an area in which the ethics of care has met with particular interest. Care has been a central theme in medicine throughout its history. In the sense of ‘taking care of the patient,’ it can be understood to refer to technical care, in the form of diagnostic or therapeutic intervention, in contrast to ‘car­ ing for the patient,’ which points more to the concern for the other, who is being accompanied and helped in a difficult situation. There is a trend to ascribe the latter to nursing, whereas technical care or – even more nar­ rowly– cure is thought of as the domain of physicians. This distinction is unhappy insofar as it makes concern and devotion appear less relevant to physicians’ work. It has also led to a misconception of the ethics of care being a form of nursing ethics. Although caring is without any doubt a prominent concept in nursing, it should not be confined to just one health care profession. Caring is a constitutive moment in the encounter of physician and patient as well. In order to trust their physicians, patients need to know that physicians care about their well-being. A caring attitude is expressed, for example, through attentive listening, interest for the psychosocial context in which a disease occurs, and offering understanding and support. Emphasizing the caring dimension in medicine, however, has also been regarded with some suspicion, for instance, by some feminist bioethicists and those who hold patient’s rights in high esteem. The concern was that promoting the ‘caring’ health care practitioner could be used to move backward to a more paternalistic medicine, away from the focus on patient autonomy that has char­ acterized medical ethics during the past decades. But this, again, would rest on a misunderstanding of the ethics of care, which does not aim to undermine indivi­ dual autonomy but, rather, aims to encourage a critical reflection of self in its embodiedness and relatedness while trying to empathically understand the individual moral world of the other. The implications of the ethics of care extend beyond individual relationships between patients, nurses, physi­ cians, other health care workers, and relatives; a care perspective can help to bring the institutional and societal frameworks into view that define how medicine is prac­ ticed. Instruments aimed at increasing economic efficiency, such as Diagnosis Related Groups for the in­ patient setting, set incentives for limiting care to the necessary technical interventions in a time frame that is profitable for one’s institution. This means that those acts prompted by attentiveness, empathy, concern, and devo­ tion, such as listening and talking or accompanying the patient, are potential distractions from that goal. Health care professionals working under such conditions find themselves in a permanent conflict between working

toward the economic well-being of their institution and providing the care to the patient that is in accord with their own ideas of good medicine or good nursing. As a consequence, health care workers feel exploited and are lost due to burnout or because they search for other job opportunities. From a care perspective, such a setting would clearly need to be questioned because it hampers the development of caring relationships that are supposed to unfold in a salutory environment. Another impediment to such relationships is limited access of patients who are deemed unprofitable or even an economic risk to the respective health care institution. Such marginal groups are typically the chronically and/ or psychiatrically ill, the polymorbid, the elderly, and the under- or uninsured. Although access and allocation are clearly matters of justice, they fall fully within the scope of an ethics of care: As a nurse, for instance, you would reflect morally on why you give more attention to the privately insured patient, somewhat less to the publicly insured (who may be even sicker and more in need of your care), and why the uninsured or otherwise finan­ cially unattractive patient was turfed so quickly from the ward even though it did not make sense from a medical standpoint. The ethics of care can also be helpful in identifying conceptual challenges. A classic example for a conceptual stalemate is the discussion of the moral status – some call it moral value – of different groups of human beings, such as embryos or patients in a persistent vegetative state. Whereas utilitarian approaches are usually quite keen on such moral ‘price tags’ because they help in determining how benefit can be maximized, an ethics of care might deviate from the attempt to solve the status question first – which is a near impossible task in pluralist societies, given the metaphysical background that such questions evoke. In the case of preimplantation diagnosis, for instance, a care ethics approach would probably consider the different moral agents involved and try to determine what respon­ sibilities toward others the respective moral agent perceives. For instance, the prospective parents may feel responsible not only for what they see as their future child but also for elder siblings, the reproductive health specialist for the well-being of the couple he or she is treating, and a pro-life activist for embryos discarded in the clinic. This analysis would then be followed by an attempt to identify possible constellations that minimize the potential for con­ flict and harm but still allow for a respectful exchange of perspectives. Another example for questions at the conceptual level concerns organ transplantation. The rules for living organ donation seem to be quite straightforward: What is usually required is the consent of a competent individual that is (1) informed and (2) voluntary. Although such decisions are scrutinized daily by psychologists or clinical ethicists, it is far from clear what ‘voluntary’ means in the

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context of a close relationship between donor and recipi­ ent. Does a mother ‘voluntarily’ decide to donate a kidney for her teenage daughter who is not coping well with dialysis? Does a husband ‘voluntarily’ donate a part of his liver to his wife, whose physical deterioration during the past year he has watched with great sorrow? Whereas the ethics of care cannot give a straightfor­ ward answer to current conceptual challenges in bioethics, it can provide an analytical framework for reflecting about the particular nature of the relationships at stake and about how concrete moral agents can be empowered to make decisions that reflect a high level of moral maturity.

Conclusions There has been a lively debate regarding the ethics of care during the past two decades: Is the contrast with an ethics of justice adequate? What about the supposed gender specificity of Gilligan’s empirical findings that triggered the debate? Can the ethics of care stand on its own? Does it add anything to existing theories, such as virtue ethics? What does it mean for different fields of practice? Today the debate seems to have calmed down some­ what, although some major challenges remain, particularly regarding the integration of care and justice perspectives and the specification of such an integrated account for different fields, such as bioethics or business ethics. The ethics of care has provided major stimuli for both theory and moral practice. Its contributions should be significant enough to ensure that it will not be considered as an ephemeral fashion but as a substantive and sustain­ able source of moral inspiration. See also: Aristotelian Ethics; Feminist Ethics; Kantianism; Moral Development; Nursing; Theories of Ethics, Overview; Theories of Justice, Rawls; Needs and Justice; Virtue Ethics; Women’s Rights.

Further Reading Baier AC (1994) Moral Prejudices: Essays on Ethics. Cambridge, MA: Harvard University Press. Benhabib S (1992) Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics. New York: Routledge.

Carse A (1991) The ‘voice of care’: Implications for bioethical education. Journal of Medicine and Philosophy 16: 5–28. Gilligan C (1982) In a Different Voice. Cambridge, MA: Harvard University Press. Held V (ed.) (1995) Justice and Care. Essential Readings in Feminist Ethics. Bolder, CO: HarperCollins. Held V (2006) The Ethics of Care: Personal, Political, and Global. Oxford: Oxford University Press. Herman B (1993) The Practice of Moral Judgement. Cambridge, MA: Harvard University Press. Kittay EF and Meyers DT (eds.) (1987) Women and Moral Theory. Totowa, NJ: Rowman & Littlefield. Kohlberg L (1981) The Philosophy of Moral Development: Moral Stages and the Idea of Justice. San Francisco: Harper & Row. Noddings N (1986) Caring: A Feminine Approach to Ethics and Moral Education. Berkeley: University of California Press. Sharpe V (1992) Justice and care: The implications of the Kohlberg– Gilligan debate for medical ethics. Theoretical Medicine 13: 295–318. Slote M (2007) The Ethics of Care and Empathy. New York: Routledge. Tong R (1998) The ethics of care: A feminist virtue ethics of care for healthcare practitioners. Journal of Medicine and Philosophy 23: 131–152. Tronto JC (1993) Moral Boundaries: A Political Argument for an Ethic of Care. New York: Routledge. Walker MU (1998) Moral Understandings: A Feminist Study in Ethics. New York: Routledge.

Biographical Sketch Prof. Dr. med. Dr. phil. Nikola Biller-Andorno studied medi­ cine at the University of Erlangen–Nu¨rnberg as well as philosophy and social sciences at the University of Hagen, Germany. Multiple scholarships and awards allowed her to pursue her research interests at institutions such as the Hastings Center, Yale University, and the Harvard Medical School. After a period of further academic qualification (Habilitation) in ethics and theory of medicine at the University of Go¨ttingen, Germany, she worked as Ethicist at the World Health Organization (2002–04). In 2004, she was appointed Professor of Medical Ethics at the Charite´ in Berlin; in 2005, she joined the University of Zurich as Full Professor of Biomedical Ethics. She serves as a member of the Central Ethics Commission of the Swiss Academy of Medical Sciences, as temporary advisor to the World Health Organization, and as deputy editor of the Journal of Medical Ethics and is active in the boards of several professional asso­ ciations (International Association of Bioethics, Akademie fu¨r Ethik in der Medizin, and Swiss Society of Biomedical Ethics). She has published and lectured widely in the field of bioethics, her work so far including more than 120 contributions to journals and book chapters and seven co-authored or co-edited books.

Casuistry M G Kuczewski, Loyola University Chicago, Maywood, IL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Communitarianism A neo-Aristotelian school of thought that claims ethics is primarily a matter of a shared understanding of the good or is based on interpersonal deliberative processes. Moral taxonomy A tree-like grouping of cases arranged according to their similarity. The higher branches of the tree contain moral maxims, general concepts, and principles relevant to the cases beneath them. Morphology The general features of a case. Natural law theory A kind of philosophical position holding that God or nature inclines beings toward certain goals and ends. Happiness is thought to be action in accordance with these ends. Paradigm A clear case in which most persons would agree on the appropriate solution.

Introduction Casuistry is case-based reasoning or any method of inquiry that is driven by cases rather than theory. In applied ethics, casuists argue that ethical theory is of little help in solving particular moral problems, but that with enough attention to circumstances and details, acceptable resolutions can generally be reached. Although they agree on this basic premise, casuists may differ on how to proceed in resolving particular problems. Casuistry is a term that was discredited in philosophi­ cal circles for several hundred years but was revived by bioethicists in the 1980s. Although the first generation of work in casuistry took place almost exclusively within the field of bioethics, its popularity has grown to the point that it is beginning to influence other areas, such as engineering and business ethics.

The Contemporary Appeal of Casuistry Reasons for the widespread appeal of casuistry among bioethicists are readily apparent. Hundreds of years of debate between ethical theorists (e.g., deontologists vs. utilitarians) have produced no consensus on methodolo­ gical questions. Furthermore, those who attempted to apply these theories directly to particular problems found that they were too general to yield useful results,

Practical wisdom The virtue of the part of the intellect that deals with matters that are variable. It is often concerned with particular judgments and includes a perceptual component. It is also sometimes called phronesis or prudence. Sophistry A rhetorical style of argumentation in which regard for the truth is secondary to considerations of self-interest. Teleology A system whose main feature is goaldirectedness. Because human beings can make choices, teleological systems of ethics usually identify happiness with determining the highest ends of human life and making choices in accordance with them. If the belief is added that God or nature inclines human beings toward these ends, then teleological ethics becomes natural law theory.

or that such applications yielded rigid and blunt solutions that were insufficiently sensitive to the nuances of particular situations. This result is untenable for those who work in applied ethics. Questions must be answered, conflicts managed, and problems resolved. In bioethics, the demand was particularly acute for ethical reasoning to guide the new life and death choices that technology brought forth. The creation or revival of practical meth­ ods to deal with these matters was inevitable. Even if the word ‘casuistry’ had not come back into vogue, this meth­ od’s return seems to have been assured. Of course, a tree is judged by its fruit in applied ethics. Bioethics, the nascent home of casuistry, has grown enormously and has produced areas of widespread agreement. Case-based reasoning has aided this progress and may provide a rational account of the development of consensus. The completeness of this account is a subject of current scholarship, and some argue that casuistry presupposes more fundamental commitments or requires ‘something more’ beyond its austere methodology.

The History of Casuistry Ancient and Medieval Origins The term ‘casuistry’ seems to have first been used in the medieval period, but this general approach to ethics has roots in the writings of Aristotle, especially his

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Nicomachean Ethics (NE). For Aristotle, ethics is a prac­ tical knowledge whose characteristics differ from those of the theoretical sciences. Theoretical sciences begin with self-evident first principles and proceed through logical demonstration to deliver conclusions that obtain with necessity. In contrast, practical sciences are imprecise. Practical investigations consider the opinions of wise persons and facts established by perception or habit as starting points and dialectically proceed to cull the first principles from such examinations. The conclusions of practical reasoning do not follow deductively from the first principles but require observation and inductive inference. Such conclusions hold only generally or ‘for the most part’ (Aristotle, NE, I, 3, 1094b11�27). For instance, Aristotle often begins an inquiry by directing the reader to paradigmatic examples of the matter that he is exploring. Because ethics is largely about the good life, Aristotle exhorts us to look to those we credit with living well. Similarly, when describing virtues such as courage, he sets forth a paradigmatic illustration and then consid­ ers instances that bear resemblance. To recognize these paradigms, the student of ethics requires experience and a kind of developed moral judgment known as practical wisdom (phronesis). Furthermore, the exercise of practical wisdom in particular instances involves a mature percep­ tual capacity (aisthesis). The person of practical wisdom perceives the particular case to be of a certain type or analogous to a certain paradigm based on its particular circumstances. These themes – that is, paradigms, cir­ cumstances, analogy, and practical wisdom – pervade casuistry throughout the Middle Ages and in its current incarnation. Albert Jonsen and Stephen Toulmin, in their seminal work, The Abuse of Casuistry: A History of Moral Reasoning, detail the rise of casuistry in the Middle Ages and its fall from grace during the Enlightenment. They argue that the practice of casuistry was mainly pursued by medieval spiritual counselors called ‘confessors.’ Catholic theolo­ gians from Augustine of Hippo to Thomas Aquinas had developed a rich tradition of natural law philosophy and theology that viewed all things as being teleologically ordered by a creator God. Each thing had its proper end in the cosmic scheme. Human beings also have their appointed place within the outline of creation provided by natural law theory. However, this kind of philosophy was too general to be very helpful to clerics who had to consider the particular acts of those in their spiritual care. They needed to fill in the outline of the natural law with paradigm cases and catalogs of variations. For this task, the moral perception and practical judgment of which Aristotle spoke would be required. According to the med­ ieval thinkers, the faculty of conscience (conscientia) accomplished the particular judgment under the guidance provided by the virtue of prudence (prudential).

The main tools of the casuist can be seen in the work of the medieval confessors. Prudence could identify some cases in which the goodness or evil of the action taken was clear. These paradigm cases are often helpful as the start­ ing point of reasoning when confronted by more murky ones. Whether a problematic case is more like one para­ digm than another is usually the key question in determining the moral correctness of an action. Problem cases can be grouped with one type or another based on the characteristics of the case (morphology). These clas­ sificatory acts are not indubitable but are judgments about the similarity between cases and the summing of factors in a given case to determine the action most likely to be morally correct (probabilism). Furthermore, paradigms can be arranged according to their similarity to other paradigms, their generality or specificity, etc., culminat­ ing in a moral taxonomy of cases. Jonsen and Toulmin contend that casuistry was not derivative of natural law theology but that these classificatory schema developed largely of their own momentum. This point is crucial for casuistry’s revival because few secular ethicists would be interested in a new incarnation of natural law theory. Casuistry fell into disrepute because it became equated with sophistry. That is, certain confessors became known for cleverly using casuistic reasoning to alibi the misdeeds of their patrons. This led to a ridicule of casuistry (abuse) as mere subjectivism and relativism. These connotations persist to the present day despite the success of the new casuistry. The Contemporary Revival of Casuistry Casuistry began its most recent incarnation when Albert Jonsen asked the modest question, Can an ethicist be a consultant? He answered the question by pointing out that ethics consultants cannot bring to the bedside a theoretical system that churns out indubitable results, nor can the consultant set forth simple answers that settle cases regardless of the circumstances. Jonsen subtly pointed out that even common phrases we hear during a consultation involving duties or rights only apply in a more or less fashion and are like the common adages and maxims with which the medieval confessors worked. The consultant analyzes the case by examining all of its nuances and then sums factors that speak for one course of action or another. In the real world of moral decision making, many factors tend to work together to guide the reasoning process. Putting these factors in perspective supports one or a few choices as likely to be morally correct. In other words, Jonsen’s answer to his own ques­ tion is that an ethicist can be a consultant if he or she is a casuist. Jonsen and Toulmin claim that their revival of casu­ istry received its impetus from their work on the National Commission for the Protection of Human Subjects of

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Biomedical and Behavioral Research. This commission was chartered in the wake of the infamous Tuskegee syphilis experiments and was charged with creating guidelines for research involving human subjects. Jonsen and Toulmin claim that the success of the commission, which issued the landmark Belmont Report, was due to putting aside theoretical commitments and proceeding ‘taxonomically.’ That is, they supposedly considered one class of difficult cases at a time and compared them to simpler, paradigmatic cases. The report outlines several duties of the investigator to the subject, such as respect for persons, beneficence, and justice. Similarly, Jonsen and Toulmin have remarked that cases were discussed in terms of other ‘‘mid-level principles’’ such as fairness and truth-telling. However, these duties or principles were not used in any sort of deductive manner but were the common tongue in which cases were discussed and settled. Before moving on to the more detailed analysis of the methods of casuistry, one point is worth noting. Casuistry depends on there being a relationship between facts and values that is intimate and viable. This pre­ supposition is quite different from that chasm between facts and values that post-Enlightenment ethics has taken to be self-evident. Casuists assume that by analyz­ ing the circumstances of a case closely (the facts), moral courses of action suggest themselves (values). This is a presupposition that is held dear by the Aristotelian tradition in general and thus has been the subject of analysis by other contemporary Aristotelian movements, such as communitarianism and virtue theory. Because casuistry is not a theoretical account of the nature of reality, it need not offer an a priori justification of such a presupposition but is justified or condemned by the cogency of the results of the method.

Common Approaches to Casuistry: Jonsen, Strong, and Brody The Casuistry of Albert Jonsen Albert Jonsen and Stephen Toulmin revived the termi­ nology of casuistry through their celebrated book. However, this text did not provide much instruction regarding how to use the method. Subsequently, Jonsen has provided some detailed descriptions. He has system­ atically outlined the working of the casuist’s tools through which casuistry is supposed to provide a way to ‘work up’ a case in a manner analogous to the diagnostician’s art in medicine. For Jonsen, the key elements of casuistry seem to be attention to the morphology of a case, the development of a moral taxonomy, and the implicit dependence of these two elements on a notion of practical wisdom. The mor­ phology is the narrative or story of the case and consists of

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a complete description of it. The case is worked up by considering the medical indications, the patient prefer­ ences, quality of life considerations, and social and economic factors external to the patient but affected by the case. Continuing the analogy with the diagnostician’s art, the casuist classifies the case in front of him as being of a certain type – for example, a case of euthanasia. With the identification of a type comes the recognition of relevant common moral maxims or rules of thumb that typically govern such cases. For instance, euthanasia is a type of killing, and killing is governed by such moral maxims as ‘thou shalt not kill.’ Nevertheless, we also know of para­ digm cases of justified killing such as those where the killing might be a kind of helping, such as killing a general at his request because he has been captured by the enemy and wishes to not divulge secrets. The casuist must deter­ mine whether the problematic case he is investigating is closer to those governed by the moral maxim against killing or those in which killing is justified as helping. Classifying the case results in placing it on the tree of cases on branches that contain cases similar to this one. It was previously noted that this moral taxonomy is an idea handed down from the medieval confessors. However, the taxonomy is currently an ideal that does not exist any­ where, but a casuist would have grounds to claim that medical ethicists have charted certain types of cases well enough that creating it is not difficult and that our reason­ ing in certain cases reflects such a taxonomy. It is also worth noting that in The Abuse of Casuistry, Jonsen and Toulmin do argue for a taxonomy that is quite general in nature at its higher levels. They argue that traditional ethical theories, such as deontology and utilitarianism, have failed because they did not circumscribe their proper sphere of application. These proper applications are related to the type of interpersonal relationship that is in question. At the highest levels of the taxonomy, the tree is split into an ethics of strangers governed by deontolo­ gical reasoning and an ethics of intimacy in which utilitarian maxims hold sway. Jonsen illustrates his approach using an infamous case from the medical literature known as ‘It’s over, Debbie.’ This case is one in which a resident enters a patient’s room in the middle of the night to administer palliative care to a patient in great pain. The patient’s chart reveals that she is terminally ill from ovarian cancer. She says, ‘‘Let’s get this over’’ to the resident, who administers a heavy dose of morphine. This induces respiratory depres­ sion and the patient dies within an hour. Lining this case up under the appropriate paradigms is all important. Jonsen tells us that a paradigmatic case of euthanasia, if such exists, would involve a request for a lethal drug made by a competent patient to a physician with whom he or she has an established relationship. The further one wanders from this paradigm, the less justified

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is the killing. Debbie’s case seems to be far removed from this paradigm – that is, the resident is not her personal physician and does not know if her utterance reflects a long-held wish or a momentary whim due to inadequate treatment of her pain. In this case, Jonsen does not need to tackle the more difficult question concerning whether there is a paradigm of acceptable active euthanasia. He simply shows that this case fails to embody the crucial circumstances of such a paradigm if there be one. This question of the existence of a paradigm is very important. Paradigm cases, by means of analogy, can provide solutions to less clear cases. Jonsen employs the metaphor of kinetics to depict how paradigms move our thinking in problematic cases. However, this motion is not automatic. The casuist must determine if the problem case is rele­ vantly similar to the paradigm or more similar to some other paradigm. One can claim that some sort of ‘princi­ ples of relevance’ are needed to help with this task. However, such principles are anathema to the casuist. In the place of relevance rules, Jonsen holds forth the virtue of practical wisdom or prudence. Practical wisdom is necessary so that casuist does not replace the principles of ethical theory with paradigms and fall back into an intellectual tyranny in their applica­ tion. Instead, he or she must be able to recognize when the paradigm should impact the problem case and when it should not. This judgment involves weaving the circum­ stances of the particular case together and embedding it within the larger institutional and social context. Jonsen writes, The circumstances of human life are, of course, mutable, but at the same time, they are embedded in important social institutions that are, if not immutable, at least relatively stable. The prudent person has the knack of recognizing that following this or that maxim, in these or those circumstances, contributes to the support of strengthening of the relevant social institutions or that, contrariwise, certain actions will undermine or modify the institution in certain ways. Similarly, actions are embedded in personal ideals, revealing or obscuring them. The prudent person also appreciates the way in which certain actions, under certain circumstances, cor­ respond to the ideals that he or she credits. In both the social and personal realm, prudent judgment apprehends the fit of maxims and circumstances. (Jonsen, 1991: 304)

The resolution of a particular case requires experience and knowledge of many particular cases and their atten­ dant circumstances. To determine which circumstance is the most relevant will also require an appreciation of the social and institutional context. The likely answer to the quest of the existence of a paradigm is probably answer­ able on this basis as well.

In most instances, paradigms are uncontroversial cases in which virtually all persons can agree. However, regarding questions for which there is not yet a societal consensus, casuistry has two choices. First, it may be conservative and claim that there are no paradigms where there is no general agreement. Nevertheless, as in Debbie’s case, it could describe the features of a case that might be most likely to produce widespread agreement. Second, casuistry can take a more Aristotelian route and argue that paradigm cases are not cases on which most persons agree but are cases on which persons of practical wisdom agree. If this is the claim, then it will sometimes be the role of the bioethi­ cist or of an authority, such as the Supreme Court, to perform a prophetic role. That is, prudence will require setting forth a new paradigm and calling others to recog­ nize it. Although Jonsen is clearly the most renowned casuist in bioethics, his approach and terminology do not seem to have developed a large following among ethicists. His reliance on common moral adages and maxims is too open-ended for most ethicists. For instance, it is difficult to know which heading to reach for in a case such as Debbie’s (e.g., ‘killing’), and Jonsen’s paradigms can seem remote from the case at hand (e.g., the paradigm of the general who asked to be killed). There is a desire for a casuistry that avoids these obscurities. The key features of casuistry are the identification of paradigm cases and the ability to draw analogies from the paradigms to relevantly similar cases. Thus, an approach to casuistry that places the emphasis on these elements is likely to be seen as maximally useful by clinical ethicists. Carson Strong has advanced such a method. The Casuistry of Carson Strong: The Method of Case Comparison Carson Strong’s approach, called the case comparison method, reflects the kind of reasoning indicative of the National Commission. In an effort to make the search for maxims and paradigms less open-ended, Strong embraces general middle-level ethical concepts and principles, such as truth-telling and justice, and rolespecific duties that characterize the physician–patient relationship, such as respect for patient autonomy and nonabandonment of patients. One should first iden­ tify which of these are in conflict in the case at hand. Second, one should identify the possible alternative courses of action. Third, one should compare this case with similar others to ascertain morally relevant ways in which these types of cases can differ. Finally, one should seek a paradigm case for each option under consideration. Strong’s method of case comparison sounds compli­ cated, but it is not. Another way of stating the essential

Casuistry

steps of this method is as follows: Ascertain which midlevel principles are in conflict – for example, respect for patient autonomy and nonmaleficence. Then, identify paradigm cases similar to the one at hand in which each of the two principles is clearly supreme. That is, one should generate one paradigm in which it is clear that the patient’s autonomy should be respected and one in which it is clear that nonmaleficence is the weightier principle. Let us take an example. Imagine that a competent adult patient has cancer. Aggressive surgery and chemotherapy fail to stem its spread. The patient’s family says that the health care professionals should not tell this bad news to the patient because it will devastate him. The health care profes­ sionals are not sure what to do. Strong’s methodology counsels us to identify the conflicting principles in this case – that is, respect for the patient’s autonomy versus a desire to avoid harming the patient (nonmaleficence). The providers should try to arrive at a paradigm case in which it would be correct to withhold the news about the cancer and one in which they must tell him. After much hypostasizing, the providers determine that a paradig­ matic case in which it is proper to withhold this news could be one in which they were completely sure the patient would not want bad news. The more sure they were about this, the more correct withholding the news would be. They determine that the only way to be com­ pletely sure would be for the patient to tell them he did not want bad news about his illness. Thus, the paradigm case would be one in which the providers go to the patient and ask if he would wish them to withhold unencouraging news about his condition so that he might be free to fight any illness or to enjoy his life without such psychological burdens. If he agreed to that plan, his case would be governed by the paradigm of nonmaleficence. Conversely, the paradigm in which patient autonomy triumphed might involve the patient asking the providers repeated and direct questions about the spread of the cancer. It should also be noted that casuists are not committed to the concept of moral dilemmas. The solution in this problem case concerning truth-telling will likely both respect the patient’s autonomy and minimize the injury to him (nonmaleficence). If he tells the providers he wishes the information withheld, his autonomy is respected by honoring this wish and withholding the information will also minimize harm. If he wishes to know all the information, his autonomy is respected and it is likely that a patient who wishes to know his condition will suffer less harm by being told bad news than he would by being kept in the dark. It is clear that Strong’s method is maximally useful because it generates paradigms close to the case at hand. Practical wisdom expresses itself as creativity in generat­ ing these paradigms that can serve as the basis of

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agreement. The main problem that Strong’s method faces also involves these local paradigms. Because the method generates paradigms very similar to the case at hand, they may be less stable and more culturally condi­ tioned than the more general and remote paradigms and maxims that Jonsen invokes. For this reason, casuists should probably distinguish genuine higher order para­ digms from intermediate ones. Of course, when an intermediate paradigm ceases to be paradigmatic and must be replaced by another intermediate paradigm is a question for practical wisdom. Given the austerity of Strong’s approach to casuistry and the rich, elaborate machinery of Jonsen’s method, one might expect that scholars would focus on the difference between these two philosophers. However, this has not been the situation in the literature on casuistry. Instead, some have mistakenly sought to draw a sharp contrast between the casuistry of Albert Jonsen and that of Baruch Brody.

The Casuistry of Baruch Brody: The Model of Conflicting Appeals or Pluralistic Casuistry The contrast between the work of Albert Jonsen and that of Baruch Brody is prima facie inviting because Brody uses the rhetoric of ethical theory. Nevertheless, a brief exploration of the fundamental assumptions behind his terminology and method shows a strong similarity to Jonsen’s work. As a casuist, Brody is committed to the claim that our fundamental moral intuitions are judg­ ments about the rightness or wrongness of particular actions, the justice or injustice of particular social arrangements, etc. Brody points out that these basic judgments are neither evident nor indubitable for a variety of reasons, including that we may have ignored certain nonmoral properties of the situation – that is, the circumstances of the case. These intuitions are tentative and open to revision. We proceed from a number of these intuitions to the next state of ‘theory formation.’ Brody writes, The goal of this stage is to form a theory as to when actions are right or wrong, agents blameworthy or inno­ cent, and institutions just or unjust. The data about which we theorize are those initial intuitions. The goal is to find a theory that systematizes these intuitions, explains them, and provides help in dealing with cases about which we have no intuitions. (Brody, 1988: 13)

The good Aristotelian (i.e., the good casuist) begins with particular judgments and proceeds to increasing levels of generality. These generalities may then aid in difficult cases when there are no clear intuitions. These general­ izations make thematic what goods or principles (maxims) are at stake in related and similar cases and what features

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of the cases make them similar. Intuitions may also be challenged in a variety of ways, such as by showing they are based on misconceptions or misperceptions, or that they have the support of custom despite being inconsis­ tent with our other practices. During the process of systematizing the initial, tentative judgments, one may well find that he or she is mistaken about some of these judgments. The systematizing process is part of the cri­ tical function of moral reflection. For Brody, the theory of medical ethics is nothing more than a model of the physician–patient relationship. The particular model Brody develops is called the model of conflicting appeals. It takes into account that each of the traditional models of ethical theory makes an appeal to a particular good, such as rights, virtues, consequences, efficiency, or justice. Each traditional ethical theory appeals to one of these goods and is usually rejected because it can be counterexampled by appeals to do the other goods. Thus, a model of the physician–patient rela­ tionship that can appropriately balance the claims of each provides an adequate framework for decision making in medical ethics. The most important feature of Brody’s account, the feature that makes him a casuist, is that theory does not achieve independence from the cases. Theory is con­ firmed by how satisfactorily it deals with cases. To the extent that it does not deal satisfactorily with cherished intuitions regarding particular cases, the theory is open to criticism and revision. Theory is created to help resolve the cases in which one has no intuitions or in which they are not clear. In these cases, theory serves a heuristic function in identifying the relevant considerations, cir­ cumstances, and maxims. However, theories cannot dictate solutions without the intuitive support that is derived from other, clearer cases. Brody points out that there is no standard metric by which to assign objective weights to each conflicting consideration and then calculate the result. Instead, he provides several very general guidelines for the assessing of conflicting considerations but argues that that is as far as theory can go. To resolve particular cases, he advocates a ‘judgment approach.’ In this approach, he echoes Jonsen’s revival of the Aristotelian notion of practical wisdom. At the core of these two casuistries is this identical concept. One can easily see additional similarities between the casuistry of Baruch Brody and that of Albert Jonsen. In fact, it is difficult to find a difference other than their respective use of the term ‘theory.’ Brody is in agreement with the taxonomic method that is important in Jonsen’s casuistry. Arranging generalizations concerning types of cases, respective goods, practices, and institutions hier­ archically can be called a theory, and no violence is done to casuistry in saying that it aims at theory. Brody simply uses ‘theory’ where Jonsen would use ‘taxonomy.’

Traditional ethical theory, the kind of theory to which casuists are averse, works in a top-down manner from the highest level of generalization to the lowest level of particular judgments. Usually, it tries to bridge this gulf in as few steps as possible. Brody is a casuist in that he works upward from moral intuitions. The intermediate steps are important – perhaps all-important. Jonsen envisioned casuistry as a critique of theory. Both deontological and utilitarian considerations are rele­ vant to moral life. The type of relationship, intimate or stranger-like, often guides which kind of considerations is more salient. Brody highlights the fact that the doctor– patient relationship embodies features of both kinds of relationship as well as a variety of other kinds of moral considerations. A ‘rich casuistry’ will contain a variety of cases that emphasize each of the various aspects of this model of the physician–patient relationship and give gui­ dance when appeals to the various considerations conflict.

Contemporary Casuistry and Ethical Theory Casuists are sometimes seen as antitheorists. If we define theory by the model of Euclidean geometry, casuists are in strict opposition to it. The geometric model views theory as a deductive enterprise beginning from first principles that are self-evident or intuitively grasped and proceeding through a chain of inferences to particular conclusions. Traditional ethical theories, whether utilitar­ ian or deontological in nature, place the highest premium on their first principles or values and see the work of ethics as applying those principles to particular cases. The particular situations are seen as less certain and do not directly affect the principles. We have noted that this approach leads to ethical systems that are either too gen­ eral to be of help in practical matters or too rigid to deal appropriately with particular subtleties. This casuistic critique of traditional ethical theory should not be con­ fused with an aversion to generalization. Baruch Brody notes that traditional ethical theories all have cases for which their principles seem ideally suited. However, those same principles fail when applied to a variety of other cases. In other words, counterexamples seem to undermine a principle by showing that an appeal to another principle is more appropriate. He thereby suggests that rather than being best construed as a deduc­ tive system, the principles of ethical theories are best seen as generalizations from the cases that suit them. As noted previously, these generalizations can guide us in gray areas when our intuitions are not clear. However, judg­ ment is always the final arbiter rather than principles. Even when a principle seems appropriate for a certain set of cases, one can often find cases within the domain whose particular circumstance could make them an

Casuistry

exception for which appeal to a different principle is appropriate. It seems that it is the priority of the particular that distinguishes casuistry. Giving priority to the parti­ cular over the more general is not the same as saying there is no place for the general.

Casuistry and Practical Wisdom: Does Casuistry Always Require ‘Something More’? Most versions of casuistry give a central place to practical wisdom. Exactly what this faculty provides is not always clear, but it seems to be an ability to make appropriate judgments concerning patterns of moral experience. Sometimes, casuists emphasize the role of judgment in recognizing and characterizing paradigms, whereas others emphasize its role in determining the relationship between a particular case and a paradigm or competing paradigms. Still others note that practical wisdom and judgment may be needed to draw generalizations and theoretical constructs. Much of the criticism that has been directed at casuistry is ultimately a discomfort with practical wisdom occupying such a central role. After all, judgment seems very subjective and objectivity is usually considered highly desirable in ethics as in other shared areas of human endeavor. Some challenge the use of judgment or practical wis­ dom in general. Support for the concept of practical wisdom often came from those who studied clinical judg­ ment. Experienced clinicians seem to evidence a similar kind of pattern recognition in making diagnoses and determining appropriate courses of treatment. Patients often present with a variety of symptoms that do not obviously sum to a particular diagnosis. The physician must draw on the patient’s history and a variety of sources of information to construct a differential diagnosis. This will often require comparison to more paradigmatic cases of various illnesses and assigning a relative importance to the symptoms the patient describes. Similarly, once a diagnosis is made, the physician must determine a course of treatment. Because there are often several options, the physician tries to match the course of treatment to the presentation of the illness but also takes into account nonmedical factors, such as the values and preferences of the patient. However, this model has come under fire from the evidence-based medicine (EBM) movement. EBM is an attempt to foster a standard of care in medicine that draws upon the best evidence available. Although evidence regarding the best practices in med­ icine is continually growing, such evidence has often failed to impact clinical care and practice habits, and regional variations in plans of treatment have sometimes persisted without justification. As a result, the EBM movement has asserted the priority of empirical

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evidence, especially as controlled clinical trials over clinical or expert judgment. Although this assertion of evidence has an immediate appeal, Mark Tonelli has convincingly shown that in the practice of medicine, any attempt to eliminate clinical judgment will result in poor care for many patients. His main point is that the results of the large studies that are often considered the gold standard of evidence are not easily applied to many patients. Clinical trials typically show which treat­ ment had significantly better outcomes for most patients enrolled in the study. However, this does not necessarily show that the ‘superior’ treatment is better for every patient in the study or for the patients that physicians encounter after the results of the study have been reported. Tonelli points out that the clinician must use judgment and experience to assess the degree to which his or her patient is similar to the study subjects who benefited in the study. He suggests that this is a kind of casuistry in which the physician compares the particular (his or her patient) to a paradigm of the ideal patient who benefited in the study. Furthermore, the physician’s plan of care must also take into account other contextual features such as patient values and system factors such as the patient’s ability to access the prescribed treatments. Although clinical judgment and ethical judgment are not the same thing, the analogy between the two has generally been meant to show that complex areas of human endeavor often require the judgment of an experienced person. This case is fairly convincing, and the reliance on such judgment is probably eschewed at the risk of distorting practice. Nevertheless, acknowled­ ging the importance of judgment will always be a source of concern for critics. The fear that such judgment can­ not yield the kind of objectivity that is desired of ethical discourse is pervasive and takes a number of forms. Some are concerned that a reliance on practical wisdom results in a mute particularism that cannot discourse about its verdicts. Others fear it will result in a conservatism that cannot question the conventions of the community within which it was formed. Still others fear that prac­ tical wisdom has no anchor to prevent a slippage into relativism. These three criticisms are related to concerns about objective justification. When one sees a paradigmatic case in which the appropriate course of action is clear, it is not obvious what remains to be said to justify the action in that situa­ tion. As a result, one can be concerned about how to justify the course of action to those who do not ‘see’ the paradigm the same way. This problem is also sometimes noted on the other end of the spectrum, namely how one can transfer the solution from a paradigm to a less clear particular case other than by a process of intuition – a process that may yield different conclusions when employed by reasonable people who may disagree. If casuistry is a form of intuitionism, it will suffer from the

404 Casuistry

problem of how one can claim objectivity for subjective intuitions. Casuists typically respond that one can accept the concept of intuition, judgment, or practical wisdom without accepting that this renders one mute regarding questions of justification. The casuist can explain the appropriate action that a paradigm illustrates with refer­ ence to all the kinds of reasons in terms of which one usually justifies actions. That is, one can point to deonto­ logical considerations such as need to respect the choices of other rational beings, utilitarian reasons such as the consequences of the action or alternative courses of action, or other common moral notions such as kindness and fairness. Reasoned debate can take place regarding whether these notions are sufficient justification and whether various circumstances make these considerations more or less relevant in the given situation. Carson Strong argues that the charges of mute intuitionism are under­ mined by bringing competing paradigms that recommend different courses of action to the discussion. The compet­ ing paradigms provide an opportunity to explain which circumstances make which considerations more relevant and to argue concerning which paradigm a particular case resembles. Of course, there may be areas and cases in which such analysis and dialogue does not yield a single answer but allows that there may be a range of morally acceptable solutions. Casuistry’s reliance on practical wisdom, judgment, or intuition need not render it mute. Nevertheless, having the resources for dialogue does not necessarily allay all fears regarding the context-dependent nature of casuistry. Because casuistry does not assert unequi­ vocal absolute starting points, judgment can err owing to being conditioned by society in which that judgment has been developed (conservatism) or may fail to have a sufficient anchor to prevent the judgment of reason­ able persons from inadvertently slipping into immoral prescriptions (laxism). These criticisms are difficult to deny completely. The resources that casuistry has at its disposal clearly allow for critical dialogue and reflec­ tion that can be useful in this regard. However, any inductive method allows fallibility and the potential need for reconsideration. Nevertheless, it should be noted that at least some minimal generalizations from critical reflection, on further examination, may not be relative to context. For instance, reflection on experi­ ence can yield judgments that the gratuitous infliction of pain and suffering is wrong. This is possibly the kind of theory that Gregory Kaebnick believes should result from casuistry. These kinds of generalizations may say something about human nature or at least the nature of moral experience and can be used to criticize particular judgments that might err. Having some generalizations prove to be more fundamental than others would not seem to undermine the casuistic enterprise provided we

do not assert a priori that no circumstances can render the generalization inappropriate. Perhaps the more fruitful path that has been taken is to embrace the surrounding culture and social context in the same critical reflection and dialogue in which the casuist participates. In this way, casuistry is a close relative of communitarianism and professional ethics in general. The ‘something more’ that critics see as needed to anchor casuistry can be the ends of a profession and the values and needs of a community.

Casuistry and Professional Ethics Casuistry’s contemporary revival has taken place predo­ minantly within the field of medical ethics. Some work, such as that of Martin Calkins, indicates that it is spreading to other applied fields, such as that of business ethics. Stephen Toulmin suggested that medicine pro­ vided the proper context for the revival of applied ethics because medicine is anchored in objective human needs such as pain and suffering and takes on a teleological character in seeking to address these realities. Medicine provided a model of how social practices can embody a kind of objectivity and also became a context within which applied ethics (i.e., casuistry) could develop. The ongoing dialogue between medicine and ethics has expanded from a discussion of right action to the questions of the relationship of the professional to society. Professionalism has come to be the dominant term in medicine to encompass the ethical, legal, and social aspects of doctoring. This terminological shift has been well received among physicians because it seems to sug­ gest the vocational and identity issues that are at stake in the bureaucratizing and standardizing of medical care. Much of the professionalism literature has echoed virtue ethics and described the qualities of the ideal physician, whereas other efforts have focused on outlining the com­ petencies or skills that doctors should be able to demonstrate. Ethical reasoning has fallen under these competencies. What is important for our purposes is that the professionalism movement provides an ongoing teleolo­ gical enterprise within which a mode of ethical analysis such as casuistry continues to operate. Kuczewski argues that the ‘something more’ that is the desire of casuistry’s critics has become in medicine a living the­ ory and self-understanding of the profession. Actions counseled or prohibited through casuistic analysis con­ tribute to the self-understanding of the roles and relationships of the physician and can conversely be critiqued from the understanding of those roles and relationships.

Casuistry

As already noted, casuistry is often said to be akin to other neo-Aristotelian movements such as communitar­ ianism. The communitarian usually emphasizes the shared common understandings of members of a commu­ nity in arriving at workable solutions to moral quandaries. Casuistry has sometimes been seen as a way to make thematic and develop those shared understandings. However, casuistry rejects the idea that cases are resolved through a prior articulation of shared values. Cases elu­ cidate and refine our shared understandings. Similarly, the self-understanding of professionals seldom dictates solutions to cases, but the values and shared understand­ ings of the profession can be explicated through casuistic analysis. Nevertheless, only the most dogmatic casuist would fail to acknowledge that these shared understand­ ings will have an impact on case analysis, especially in contestable areas. In summary, casuistry seems to be a well-articulated method of analysis that has undergone a particularly strong reincarnation in biomedical ethics. The continuing development of the professional ethics of the medical profession has continued to make casuistry a fertile method for almost two decades and has fostered consid­ eration of the relationship between this frontline approach and the larger pictures provided by theories and professional self-understanding. Although it has shown some signs of making inroads in engineering ethics and business ethics, it remains to be seen if these areas will prove as fertile ground as medicine.

See also: Aristotelian Ethics; Communitarianism; Consequentialism and Deontology; Principlism; Professional Ethics; Theories of Ethics, Overview; Utilitarianism; Virtue Ethics.

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Further Reading Arras JD (1991) Getting down to cases: The revival of casuistry in bioethics. Journal of Medicine and Philosophy 16(1): 29–51. Brody B (1988) Life and Death Decision Making. New York: Oxford University Press. Brody B (2003) Taking Issue: Pluralism and Casuistry in Bioethics. Washington, DC: Georgetown University Press. Calkins M (2001) Casuistry and the business case method. Business Ethics Quarterly 11(2): 237–259. Jonsen AR (1980) Can an ethicist be a consultant? In: Abernethy V (ed.) Frontiers in Medical Ethics, pp. 157–171. Cambridge, MA: Ballinger. Jonsen AR (1991) Casuistry as methodology in clinical ethics. Theoretical Medicine 12(4): 295–307. Jonsen AR and Toulmin E (1988) The Abuse of Casuistry: A History of Moral Reasoning. Berkeley: University of California Press. Kaebnick GE (2000) On the intersection of casuistry and particularism. Kennedy Institute of Ethics Journal 10(4): 307–322. Kuczewski MG (1997) Fragmentation and Consensus: Communitarian and Casuist Bioethics. Washington, DC: Georgetown University Press. Kuczewski MG (2007) The soul of medicine. Perspectives in Biology and Medicine 50(3): 410–420. Strong C (1988) Justification in ethics. In: Brody B (ed.) Moral Theory and Moral Judgments in Medical Ethics, pp. 193–211. Dordrecht, The Netherlands: Kluwer. Strong C (1999) Critiques of casuistry and why they are mistaken. Theoretical Medicine and Bioethics 20(5): 395–411. Tonelli MR (2006) Integrating evidence into clinical practice: An alternative to evidence-based approaches. Journal of Evaluation in Clinical Practice 12(3): 248–256. Toulmin SE (1981) The tyranny of principles. Hastings Center Report 11(6): 31–39. Toulmin SE (1986) How medicine saved the life of ethics. In: DeMarco JP and Fox RM (eds.) New Directions in Ethics, pp. 265–281. New York: Routledge Kegan Paul.

Biographical Sketch Mark G. Kuczewski, Ph.D., is the Fr. Michael I. English Professor of Medical Ethics and the Director of the Neiswanger Institute for Bioethics and Health Policy at Loyola University Chicago Stritch School of Medicine. He is President of the American Society for Bioethics and Humanities (2009–11).

Censorship B Williams†, (Formerly) University of California at Berkeley, Berkeley, CA, USA ª 1998 Elsevier Inc. All rights reserved. This article is reproduced from the previous edition, volume 1, pp 443–436, ª 1998, Elsevier Inc.

Glossary Censorship Suppression or regulation of publications by a legally constituted authority on grounds of content. First Amendment Provision of the U.S. Bill of Rights governing freedom of speech. Obscenity In English law, technically ‘a tendency to deprave and corrupt.’

Censorship includes any kind of suppression or regulation, by government or other authority, of a writing or other means of expression, based on its content. The authority need not apply to a whole judicature, and the effects of its censorship may be local. The term is sometimes used polemically by critics of a practice that would not be described as ‘censorship’ by those who approve of it: In the United States, the term has often been applied in this way to the activities of school or library boards in preventing the use or purchase of books that contain sexual scenes or teach Darwinism. It does seem that an activity has at least to be publicly recognized in order to count as censorship; interference with mail by the secret police or covert intimidation of editors would be examples of something else. Accordingly, any censorship implies a public claim of legitimacy for the type of control in question.

Methods The most drastic methods of control involve prior restraint: A work is inspected before it is published, and publication may be forbidden or permitted only after changes have been made. Traditional absolutist regimes sought to control book publication by these means, and the Inquisition similarly regulated publication by Catholic writers. Legal procedures to the same effect still exist in many states for the control of material affecting national security and in illiberal states for the control of political content and social criticism. Until 1968, theatrical performances in England were controlled y

Deceased.

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Pornography Publication in any form with explicit sexual content, intended to produce sexual arousal. Prior restraint A method of control that prevents material from being published. Zoning A system of controlling pornography (or another activity) by permitting its sale only in certain designated areas.

in this way by a Court official, the Lord Chamberlain, whose staff monitored the script before production, demanded changes on a variety of grounds (including disrespect to the monarchy), and visited performances to see that their instructions were being carried out. In many jurisdictions, cinema films are inspected by some official agency before release, and its powers may include that of suppressing some or all of a film. However, the emphasis of these inspections has increasingly moved from suppression to labeling, the agency not so much censoring films as classifying them by their suitability for young people (in Britain the relevant body changed its name to express this). Prior restraint is essential when censorship is motivated by official secrecy: Once the information is out, the point of the censorship is lost (the British government attracted ridicule in the 1980s by trying to ban a book on security grounds that had already been published elsewhere). There are other aims of censorship, however, that do not necessarily demand prior restraint. If a work is thought objectionable on grounds of indecency, evil moral character, or its possible social effects, the suppression of it after publication may still be thought to have a point, in limiting people’s exposure to it. The word ‘censorship’ is sometimes used to apply only to methods of prior restraint, but legal provisions aimed at suppression after publication can reasonably be seen as having similar purposes and effects, and the term will be taken here to cover these procedures as well. Except in relation to media such as broadcasting, questions of principle are now normally discussed in terms of censorship after publication. It is important that censorship even in this wider sense still aims at suppression. Schemes of restriction or zoning applied to pornographic materials that require them to be sold only in

Censorship 407

certain shops and only to adults are analogous to film classification and should be distinguished from censorship.

Limits In 1774, Lord Mansfield said, ‘‘Whatever is contra bonos mores et decorum the principles of our laws prohibit, and the King’s Court as the general censor and guardian of the public morals is bound to restrain and punish’’ [Jones v. Randall (1774)]. Although this dictum was approvingly mentioned by another English Law Lord as recently as 1962, few now would offer quite such a broad justification for censorship. In part, this is because of doubts about what ‘the public morals’ are and by whom they are to be interpreted: Pluralism, skepticism, sexual toleration, and doubts about the social and psychological insight of judges have played their part in weakening confidence in the notion. A more basic point is that even where there is a high degree of moral consensus on a given matter, it remains a question of what that may mean for the law and what, if anything, can count as a good reason for using the law in an attempt to suppress deviant opinions or offensive utterances. Liberal theories claim that freedom of expression is both an individual right and a political good that can be curtailed only to prevent serious and identifiable harms. They can agree on this even though they may disagree to some extent about the main basis of these values, some emphasizing the danger of political and other power that is not transparent, some the importance of artistic and other expression, and some the ideal, influentially urged by John Stuart Mill, that it is only through an open ‘market place of ideas’ that truth can be discovered. Liberals will agree, obviously, that the presumption against censorship is always very strong. They will differ to some extent, depending on their other views, about the kinds and the severity of harm that may in certain cases justify it. All will want to defend serious political speech; those who emphasize self-expression may be particularly concerned with protecting potentially offensive artistic activity. Those who stress the idea that free speech is a right (as Mill usually did not) insist that the reasons for suppression must take the particular form of a threatened violation of someone’s rights. A very strong version of such principles is embodied in U.S. law, which has interpreted the First Amendment to the Constitution (‘‘Congress shall make no law . . . abridging the freedom of speech or of the press’’) in such a way as to make censorship on any grounds very difficult. Mr. Justice Holmes in 1919 produced an influential formula: ‘‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about

the substantive evils that Congress has a right to prevent.’’ Restrictions in such terms have been taken to protect even overtly racist demonstrations, let alone publications. The ‘clear and present danger’ test is not used with regard to pornography, but the effect of Supreme Court decisions in that area has been that, at most, hard-core pornography can be suppressed. In many parts of the United States, all that the law enforces is zoning restrictions. English law allows greater powers of suppression than that of the United States: Publications designed to arouse racial hatred, for instance, may be illegal, and the same is true in other jurisdictions. (In Germany and elsewhere, it is illegal to deny the Holocaust.)

Pornography In the case of pornography, the main concept used in English law is obscenity; in a formula inherited from a judgment of Chief Justice Cockburn in 1868, the principal statute defines a publication as obscene if it has a ‘‘tendency to deprave or corrupt’’ those exposed to it. This professedly causal concept of obscenity implies that the rationale of the law is to be found in the harmful consequences of permitting a particular publication. However, as the House of Lords has itself observed, the courts could not apply this formula in a literal sense, and do not really try to do so. No expert evidence is allowed on the matter of causation, and in practice the question is whether a jury or a magistrate finds the material sufficiently offensive. As critics have pointed out, this not only makes the application of the law arbitrary, but reopens the question of its justification. In contrast to the principle that rights to free speech may be curtailed only by appealing to harms or the violation of rights in the particular case – the principle that Holmes’ ‘clear and present danger’ test expresses in a very strict form – only those who think that it is the business of the law to express any correct, or at least shared, moral attitude are likely to justify a work’s suppression simply on the ground that it is found deeply offensive. There has been a great deal of controversy about the effects of pornographic and violent publications, and a variety of anecdotal, statistical, and experimental evidence has been deployed in attempts to find out whether there is a causal link between such publications and some identifiable class of social harms, such as sexual crime. It is perhaps not surprising that such studies are inconclusive, and more recent advocates of censorship, such as some radical feminists, have moved away from thinking of censorship in this area on the model of a public health measure, and concentrate on the idea that certain publications unacceptably express a culture of sexual oppression. This approach tends to treat legal provisions against pornography like those against

408 Censorship

publications that encourage racial discrimination. In some systems, of course, this would still not make such censorship constitutional, even if the problem can be solved of making the provisions determinate enough for them not to be void for uncertainty. A legal provision drafted by Catharine Mackinnon (which has not been accepted in any U.S. state, although it has influenced Canadian law) would offer a ground of civil action against publishers or manufacturers of pornography by someone who can show that she or he has been damaged by it. This procedure might be said not to be an example of censorship as it is normally understood, but it is relevant to see it in terms of censorship, to the extent that the legal action is based on the content of the material. If a woman is assaulted or raped in the course of making a pornographic film, there is already a ground for legal action; the proposals against pornography will differ from this in being essentially connected with the existence and content of the pornographic material itself. A radical feminist outlook reinterprets the relation of pornography to other phenomena and, with that, the rationale of trying to control it. Traditional views, whether liberal or conservative, are disposed to regard pornography as a particular and restricted phenomenon, ministering to fantasy, and extreme sadistic pornography as even more so. The radical feminist thesis is that not just the fantasy but the reality of male domination is central to pornography, and that sadistic pornography involving women is only the most overt and unmediated expression of male social power. The objectifying male gaze to which pornography offers itself is thought to be implicit not only throughout the commercial media, but in much high art as well. It follows from this that there is a contrast of principle between pornography involving women and other pornography or sadistic material. At the same time, there is a less important contrast, not based on principle, between pornography and other material involving women. Sadistic material involving women will be seen as merely a less reticent version of what is more respectably expressed elsewhere, and if it is specially picked out for censorship, this will be for reasons of policy, somewhat as gross racial insults may attract legal attention rather than trivial ones. In practice, the claim is often made by feminists (in uneasy alliance with conservative forces) that sadistic pornography has worse social effects than other material; this returns the argument to the traditional ‘public health’ approach and its diagnostic problems.

Public Good Defenses It is above all censorship directed against pornography that raises legal issues about artistic merit. With other kinds of censorship, in support of Church or State, it is obvious that works to be censored may have artistic merit, and even

more obvious that this will be of no particular concern to the censors, who may well see a good work as more dangerous than a bad one. In the case of pornography, there has been a question, first, whether there can be a pornographic work of art at all. It is not disputed that most pornography is of no aesthetic or artistic interest, but there is disagreement whether this is so merely because it is not worth anyone’s while to make it more interesting, or because it is inherent in the content and intention of pornography. It has been argued in favor of the second view that the defining aim of pornography, to arouse its audience sexually, necessarily excludes the more complex intentions and expressive features necessary to aesthetic interest. Against this, there are in fact some visual and literary works that it is difficult to deny are pornographic in terms of their content and (it is reasonable to suppose) their intention, but that have been widely thought to have merit. There is strong pressure to use ‘pornographic’ in an unequivocally negative way – to imply condemnation on moral, social, or aesthetic grounds. If the term is used in this way, there is a danger that different issues may be run together, and some important questions begged: It may be harder to separate, intellectually and politically, the question of whether some objectionable work has merit from the question of whether it should be censored whatever its merit. The English law is not alone in allowing a ‘public good defense,’ which permits acquittal of a work that possesses serious aesthetic, scientific, or other such merits. It is significant that in English law a jury that acquits in a case where this defense has been made is not required to say whether it found the work not obscene or found it meritorious although obscene. The public good defense has secured the publication of serious works that were previously banned, such as Lady Chatterley’s Lover, but there are difficulties of principle, which are clearly illustrated in the practice of allowing expert testimony on the merits of the works under prosecution. Besides the inherent obscurity of weighing artistic merit against obscenity, and the fact that evidence bearing on this has to be offered under the conditions of legal examination, the process makes the deeply scholastic assumption that the merit of a given work must be recognizable to experts at the time of its publication. Moreover, the works that can be defended under such a provision must presumably be meritorious, which implies that they are to some considerable degree successful; but if a law is to protect creative activity from censorship, it needs to protect the right to make experiments, some of which will be unsuccessful. The idea of making exceptions to a censorship law for works with artistic merit seems, in fact, essentially confused. Granted that there is a particular value attaching to significant works of art, or, again, that people have an important right to try to express themselves artistically (whether successfully or not), these concerns will not be

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best met by a system that provides a special exemption just for artistic merit that at a given time can be proved by experts in a court of law. If one believes that censorship on certain grounds is legitimate, then if a work of artistic merit does fall under the terms of the law, it is open to censorship: This point is acknowledged in the practice of traditional political and religious censors. If one believes in freedom for artistic merit, then one believes in freedom and accepts censorship only on the narrowest of grounds. See also: Arts, The; Literature and Ethics; Pornography; Sexual Content in Films and Television.

Further Reading Coetzee JM (1996) Giving Offense: Essays on Censorship. Chicago: University of Chicago Press. Green J (ed.) (1990) The Encyclopedia of Censorship. New York: Facts on File. Index on Censorship (1972–) Various issues. London: Writers and Scholars International. Itzin C (ed.) (1993) Pornography: Women, Violence, and Civil Liberties. Oxford: Oxford University Press. Williams B (ed.) (1981) Obscenity and Film Censorship. Cambridge, UK: Cambridge University Press. [An abridgment of the report of a government committee that reported in 1979.]

Child Abuse B A Hocking, Queensland University of Technology, Brisbane, QLD, Australia

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by David Archard, Volume 1, pp 437–450, ª 1998, Elsevier Inc.

Glossary Child Every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. Age of majority The age at which the law considers an individual to be an adult and no longer in their legal minority. Battered child syndrome The title of an article by C. Henry Kempe et al. in the Journal of the American Medical Association, 1962, which presented evidence of injuries and deaths due to battery by parents and guardians. Best interests of the child The principle that in all matters affecting the future well-being of the child their best interests shall be paramount.

Introduction Part of the difficulty in dealing with child abuse in its four main incarnations – physical abuse, neglect, child sexual abuse, and psychological or emotional abuse – is that, as is widely acknowledged, it is severely underreported. What we do know of it serves only to demonstrate the many ways in which those with care and control over vulnerable infants and children may and do take advantage of them. This article looks at the ways in which child abuse is perpetrated, and the responses of the law both domestically and internationally. From an ethical point of view, the greatest concern is the abuse of trust and the destruction of the innocence of childhood, often by those in whom the children most trust and who are entrusted with them.

Discovering Child Abuse We think of childhood as a time of innocence, a time to remember with nostalgia, recalling Evelyn Waugh in Brideshead Revisited and the lament for ‘‘the languor of youth.’’ Reinforcing the carefree essence of childhood and young adulthood, we are familiar with the adage that ‘‘youth is wasted on the young.’’ These sentiments reflect not only that childhood is a time of innocence and enjoy­ ment but the further understanding that it is a time of dependence on those we trust and who are responsible for our care and protection. We expect that those so entrusted will not forsake or abuse that trust: and in an ideal world, childhood is indeed a time when adults always have our

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Pedophilia Literally love of children, drawing upon the Greek philia, which connotes fondness for children: however, the more widely understood contemporary meaning connotes the desire for sexual activity with young children, widely stigmatized as pathological and deviant and condemned as an extreme perversion in many societies. May refer to a predilection for sexual abuse of prepubertal children. Hebephilia Abuse of pubertal children between 15 and 19 years of age, the main group of male children abused by Roman Catholic priests.

best interests at heart. Yet for many children this is far from an ideal world, and abuses of trust, whether on the part of parents, guardians, friends, family, military, or governments, destroy childhoods and young adulthoods around the world. Like the related area of elder abuse, child abuse is not new but the extent to which it preoccupies policymakers is. Law is one institutional response, although the law often appears inadequate and to lag behind the extent of the problem. This is partly due to difficulties of arriving at definitions and partly by the fact that so much abuse occurs within families or institutions, behind closed doors. The very secrecy is itself part of the abuse; children are often threatened by perpetrators with injury or death to them­ selves or those they love if they reveal the abuse to others. There has been a modern discovery of the widespread and severe nature of child abuse by the media, politicians, priests of the Catholic Church, the law, and even admin­ istrative services, but it is of course centuries old. It is one of society’s most persistent and prevalent problems. Children have long been sold into slavery, orphaned and sent to abusive schools, forced to work in factories, and denied both the emotional and physical sustenance, that is the nurture, now acknowledged as crucial for develop­ ment into adulthood. Their fortunes or the lack thereof has been charted most convincingly and recognized as abuse in the works of Charles Dickens. In the vast Dickensian anthology of child abuse literature, there is notably the factory fodder and hungry Oliver Twist, together with the vulnerable, emotionally deprived and orphaned Estella of Great Expectations, and few could for­ get the draconian stepfather of David Copperfield. While

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from Charlotte Bronte’s works there is the cold and cruel neglect of orphaned Jane Eyre, and the deprived and lonely years in a prison-style school. Both the graphic depictions of child abuse in Egypt in the Alexandria Quartet by Lawrence Durrell and the homoerotic abuse depicted by William Burrows horrify to this day. These are just some of the literary examples from English literature. There are equally many examples from African and Asian literature. While the horrors of which Dickens and Bronte wrote may have diminished in many Western countries, it remains the case today that in many developing countries, there are modern child slaves, child brides, child prosti­ tutes, child laborers, child soldiers, donors, children suffering physically painful cultural practices, and chil­ dren suffering extreme abuse, deprivation, and neglect. Such problems for children in developing nations are often compounded by the fact that war or natural disaster has left them orphans, by malnutrition, lack of education, and lack of support networks. In some developed coun­ tries, the problems faced by children relate closely to those of children in the developing world. Physical abuse is a particularly common theme, often perpetrated by those with the care and custody of the child and upon whom the child depends, and the four incarnations of child abuse – physical abuse, neglect, child sexual abuse, and emotional or psychological abuse – may all leave a legacy of depression. Like the elderly children are among the most vulnerable (to abuse) members of almost any society. This risk is arguably most strong in remote communities where alcohol is a keen issue, and in families of shifting and often fleeting, young relationships, and the impact of the abuse on the children is devastating and tragic. Such abuses of children continue unchecked in many countries throughout the world, often perpetrated and facilitated by the very governments meant to protect children. This neglect contrasts sharply with what some claim as a virtually moral panic over child sexual abuse in the advanced Western democracies. Allegations of a moral panic have also led to claims that avoidance or prevention and recognition of the wrong has occasioned unreasonable demands on those charged with rearing or educating children. Yet many feminists argue that the incidence of child abuse (of females in particular) is actually far greater than currently believed. It is difficult to estimate given that so much occurs within families or family and friend circles. Therefore it is arguable that these extremes of neglect and panic can perhaps be explained through a confrontation with the difficulties in arriving at an adequate definition of child abuse: a single one that is capable of unifying the harms and is sufficiently reflective of the wrongs, let alone arriving at adequate punishment and quantifying its occurrence. Child abuse can take many forms, and arriving at a unifying definition is problematic. In the midst of the

momentous social change since the 1960s, which has seen children recognized as autonomous beings with their own domestic legal and international human rights, capable of not only articulating their grievances but enforcing them in courts. The developed world has moved toward legally protecting children from physical harms such as smacking, just as new emotional challenges emerge, such as cyber-bullying. Yet the problem of secrecy, of mistreatment happening in the home, where it is assumed children are protected yet where the chil­ dren’s voices are not heard and where it is difficult to articulate their rights, remains. Physical abuse, neglect, sexual abuse, and emotional or psychological abuse com­ bine with starvation, lack of education, and warfare to leave a legacy of depression and reciprocated abuse that is passed on from generation to generation. The legal position of children in Western democracies has traversed an uneasy trajectory from neglect to protec­ tion, through a paternalist lack of understanding and disavowal of empathy, to a relatively developed and cos­ mopolitan understanding of their vulnerability and their capacities. As a greater understanding of the vulnerability of children has filtered throughout the legal system, so has protection through law, which has accelerated over the course of the last 20 years in the developed world, with a particular emphasis upon protection against child abuse. Yet child protection law and policy often fail those most in need. The many faces of child abuse include familial abuse through family violence, both physical and mental, failure to provide basic standards of care, pornography, neglect, torture, and exploitation. New and problematic areas include the extensive portrayals of abuse in video games, considered by Hillary Clinton to be so potentially harmful as to warrant banning. The extent to which we are, through such entertainment, inoculating and immu­ nizing children against rejecting violence in modern society and encouraging both boys and girls to resolve conflict through violence is beginning to seriously con­ cern criminologists. The fact that the abuse is often perpetrated by a nonbiologically related father figure calls into question what constitutes a safe, secure, warm, loving, respected, predictable, and innocent childhood in this era.

Defining Child Abuse There are many views as to what should constitute child abuse under the law. Depending on one’s view, it can cover conduct as diverse as smacking children, sexually interfering with and exploiting them, emotionally and physically neglecting them, deploying them as soldiers, removing them from their families, and even photograph­ ing them. That arriving at a definition has not been without controversy can be illustrated by consideration

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of recent events in countries as diverse as Australia, the United States, the United Kingdom, Finland, and Brazil. As an example from a developed nation, in Australia recently, prominent photographer Bill Henson was con­ fronted with a media furore when an exhibition was proposed of a range of photographs of young girls. Whether it was censorship to cancel the exhibition or more a matter of preventive protection of children reflects societal schisms and polarizations in dealing with protection of children. We are prepared to infringe freedom of speech in the interests of child protection, but we are not at all sure where the boundaries lie between art, speech, and abuse. Child abuse campaigners took the view that such works constitute a form of child porno­ graphy, while others defended the photographs in the name of art. Similarly, the United Nations urged the Australian federal government in early 2009, for example, to rede­ sign the military-style Northern Territory intervention into Aboriginal communities, which was launched in mid-2007 by the then federal government in an effort to combat child sexual abuse and in response to the Northern Territory Government Inquiry into the Protection of Aboriginal Children from Sexual Abuse, released in 2007, which contained allegations of sex trades and juvenile prostitution in some of the Aboriginal com­ munities that were the subject of the Inquiry. The federal government, which has the constitutional capacity to intervene in Territory legislation and policy, argued that the revelations documenting extensive and horrific child abuse mandated the severity of the measures imposed in the interests of the human rights of the chil­ dren. From the international human rights perspective, at issue was the suspension of the Australian federal Racial Discrimination Act to accommodate inter alia the (nonvoluntary) quarantining of welfare payments in par­ ticular and a host of measures applying only to Indigenous Australians. Despite the criticisms of these measures, there is considerable evidence of a failure to meet the basic needs of these Indigenous children. Fifteen years before these controversies, the Australian Capital Territory Law Reform Commission, in its 1993 report into mandatory reporting of child abuse, defined this term to include ‘‘. . . all forms of physical, sexual and emotional abuse of children and the neglect, maltreatment or exploi­ tation of children.’’ The implication in seeking a definition has always been that we are looking at adults abusing their relation­ ships with children in many different capacities. It is far from settled whether bullying in schools – child on child or teenager on teenager, for example – could in an extended definition also amount to child abuse. Similarly, it is far from settled whether the forms of entertainment developed for children and adolescents by adults may constitute forms of child abuse or influence

violent behavior in young people. Recent school shoot­ ings – as many as eight between 1996 and 2008 (Dunblane (UK), Columbine (USA), Erfurt (Germany), Virginia Tech (USA), Tuusula (Finland), Kauhajoki (Finland) – involving at times 20–30 deaths, usually including the (typically) young gunman have prompted concerns about modern youth entertainment and social networks. Similarly, deaths of (again typically) young men in road accidents have prompted concerns about the extent to which they lack understanding of violence and are sur­ rounded by violence. Indeed, so great was her concern on these intertwined issues – the savagery of the roads and the savage attitudes to poor women – exemplified in some video games – that in the United States, Hillary Clinton launched an ultimately unsuccessful campaign to ban the video game ‘‘Grand Theft Auto’’ on the entirely justifiable basis that it promoted gratuitous and excessive violence and furthered a culture of, and desensitizing of young children to, extreme violence and abuse. In the United Kingdom, excessive exposure of young men to videos such as ‘‘Chucky’’ (about a murderous baby) and other violent ‘‘entertainment’’ has been posited as linked with violent behaviors, and the tragic murder of young Jamie Bulger by two other young children shocked the world. In Finland, with high gun ownership but very low violent crime levels, the two school shootings in 1997 and 1998 prompted serious concerns about social networks, as one of the young men had simulated a school shooting on YouTube, been questioned by police, but had not been considered in need of license revocation. A license can be obtained at the age of 15 in that country. While this wider context of societal tolerance of cer­ tain forms of violence, particularly in the entertainment arena, and the ways in which children relate to each other, is important to our understanding of child abuse, the actual term ‘child abuse’ has really grown up in a parti­ cular context – a modern context – and is informed by a particular understanding. It has been reinforced by mod­ ern studies in psychology and in pediatrics; the emotive strength of the label underscores that it refers to adult with child relations, and that the extreme wrongs to which it refers pivot around the breach of trust and duty between the adult and the child.

Sexual Abuse of Children by Priests of the Roman Catholic Church The sexual abuse of pubertal children (hebephilia) by priests of the Roman Catholic Church throughout the world has highlighted some major problems with how powerful institutions in our society protect their own interests (in terms of finance and prestige) ahead of the rights of children. Every nation with a substantial pre­ sence of Catholic clergy has reported cases of sexual

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abuse of children by Catholic priests. For example, in 2004, a report entitled ‘‘The Nature and Scope of the Problem of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States,’’ by the John Jay College of Criminal Justice, determined that, during the period from 1950 to 2002, 10 667 people (mostly male) had made allegations of child sexual abuse against priests of the Roman Catholic Church. Of these, 6700 accusa­ tions against 4392 priests were substantiated (about 4% of all 109 694 priests serving during the study). The damages paid by the Catholic Church as a result of lawsuits now total over $1 billion. Likewise in Canada, an extensive pattern of sexual and physical abuse of more than 300 orphanage residents in Newfoundland was proven by the Hughes Royal Commission of Inquiry to have been per­ petrated by members of the Christian Brothers of Ireland in Canada (CBIC) during the late 1980s and early 1990s. On May 20, 2009, a commission in Ireland released a report drawing on testimony from thousands of former inmates and officials from more than 250 institutions run by the Roman Catholic Church and discovered thousands of allegations of physical and sexual abuse of children of both sexes by Catholic priests over a period of six decades. There have been 71 documented cases where Catholic priests have been convicted and jailed for child sex offences in Australia. The scandal highlights deep-seated problems with why young men forced by their priestly vows into celibacy should be placed by their church in positions of care and responsibility over pubertal children. The fact that the Catholic Church simply moved priests on, ignored the issue, and hid evidence from the police for so long reveals how little children were protected by that organization. Claims by the Catholic Church that similar levels of child sexual abuse exist in other denominations are without factual basis. Few other religious institutions have such a mix of beliefs potentially dangerous to chil­ dren in their care: an ideology suggesting priests have exalted moral status, a requirement that they be male, celibate, and follow historicist dogma and a hierarchy of organizational authority, rather than personal revelation based on individual experience of scripture. These may be uncomfortable truths, but debate about them must commence if the interests of children in the care of this organization are to be improved.

The Wrongs and Legacies of Child Abuse Child abuse can reasonably be considered morally wrong because of its implicit breach of trust, because it harms the child, and because the legacy of that harm is likely to extend into adulthood. The innate vulnerability of chil­ dren, their relative positions of dependence and trust, and their lack of empowerment, particularly in the early years of life, magnify the harm. The abuse they suffer may be

physical, emotional, or both, and may and very often does, concern sexual abuse, very often at a time when their nascent sexuality (when linked with their innocence, their need for love, and their faith and trust in adults) arguably makes them even more vulnerable. The effects of child sexual abuse include fear, anxiety, depression, anger, hostility, aggression, and in some instances, sexually inap­ propriate conduct on their own part. Then there are the longer-term effects, which may include depression, selfdestructive behavior, poor and often debilitating selfesteem, anxiety, and substance abuse. Some clinical empirical studies report that the most damaging kinds of abuse are those involving father figures, genital contact, and force. Nor is the harm they suffer by any means confined to them. The legacy of child abuse affects both the individuals concerned and the wider community. While the extent to which there is a link between childhood abuse, particu­ larly sexual abuse, and later troubled adult behavior is not scientifically sure, it does appear that there are patterns and continuities to the abuse. It is now widely recognized that much abuse occurs within families, often by fathers or father figures, and often in families where the father figure is young and not biologically related to the child. The breach of trust and abuse of power in the security of the family setting is in itself emotionally integral to the phy­ sical abuse. Besides individual abuse, there is the further problem of institutional abuse. Thus in recent times we have also recognized that removal from at-risk families can not only lead to abuse in institutions, but also that the very removal itself can constitute abuse, and that the legacy of those removals is systematic and long term. Hence where com­ pensation schemes have been instigated, as has happened in some contemporary contexts, notably for the removal of Indigenous children to institutions, or where a state­ ment of ‘‘Sorry’’ has been uttered by Prime Ministers, they often reflect the twisted and long-term legacy of the abuse: the impact on communities as well as the immense personal harm to each individual child. Some govern­ ments have made political decisions about compensation for particular instances of institutional child abuse, others have not. Thus the decision of the Irish Government to compensate for harms incurred in institutions, of the Canadian Government to compensate for residential schools, and most recently with the change of government in Australia, an apology has been uttered in the federal Parliament to victims of the Stolen Generation of Indigenous peoples, who were taken from their families during the period of assimilation. Despite the earnestness of the apology uttered in the Australian Parliament by Prime Minister Rudd in February 2008, no federal com­ pensation scheme has been announced despite the recommendations of the ‘‘Bringing Them Home’’ Report of the Human Rights and Equal Opportunity Commission

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(HREOC). The other major nongovernmental organiza­ tion to have arranged compensation has been the Catholic Church, following revelations (and denial) of extensive institutional abuse by some clergy. Sexual abuse by min­ isters of religion (which has been referred to as pedophile priests) has led to a rethinking of the relationship between church and state. Some lesser known religious institutions such as John of God have made payouts to victims, although they have received less media attention. Such payouts do at least draw attention to the overwhelming evidence that the abuse so many suffered on removal from their families during childhood lives on to this day as the trauma of fractured families, suicide, alcoholism, sleep­ lessness, and isolation.

The Law’s Response Nationally and Internationally The extent to which child abuse continues in the con­ temporary era of the International Convention on the Rights of the Child (which should be promoted to chil­ dren by the child-friendly acronym and mnemonic CROC) demonstrates both the potential and the limita­ tions of the law in this context. Article 19 of the Convention requires States Parties to protect children from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians, or any other person taking care of the child. Article 20 further provides for special assis­ tance and protection to be granted by States to those children who are temporarily or permanently deprived of their family environment. As a result of these provi­ sions, there is a wide obligation on States Parties to protect children, although the extent to which they are met varies widely. The CROC was adopted on November 20, 1989, and entered into force on September 2, 1990. It provides for internationally agreed minimum standards of child care and a benchmark for world efforts. It defines a child as ‘‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.’’ The Convention further requires that the best interests of the child shall be paramount in all matters affecting the future well-being of the child. Because it was so widely and so rapidly ratified, this Convention provides the ultimate international authority for the minimum rights owed by states to children. Only Somalia and the United States have failed to ratify, although both have signed. However, there are many countries that have ratified the Convention that might under scrutiny be seen to fail to meet the minimum standards to which they have aspired in protection of children. The contrast between countries where children

are guaranteed protection from harm is very stark: yet even in Britain there have recently been stark reminders of the extent to which poverty plays a role in child abuse and the invisibility of human rights guarantees in the face of that. The charity Save the Children has only recently documented a sharp rise in the number of children living in severe poverty between 2004 and 2008. From at least one report into deaths of children in Britain – for exam­ ple, those of the ten children listed in the Wave Report titled ‘‘A Tale of 10 Children,’’ many of whom died in appallingly and even inconceivably cruel and callous conditions of abuse – it cannot be assumed that seemingly comfortably endowed countries like Britain (and the rest of Europe) are in fact immune from the horrors of child abuse. It would appear that the law of many nations has limped to an uneasy interaction with the wrongs and legacies of child abuse. Many countries have enacted laws providing sanctions against failure to provide ade­ quate standard of care in the home, failure to provide treatment in the event of illness, failure to report in the event of teachers’ becoming aware of abuse, and litigation has proceeded against those institutions in the event of teachers actually perpetrating the abuse themselves. Yet it has proved difficult to map out the moral parameters to the engagement of law to deal with this problem. Here we confront the need to respect those general principles that determine the limits of the law and regulate the conduct of policy, such as any rights to liberty or privacy that we accord individuals. There are three relevant principles that underpin our uses of law in dealing with child abuse where it occurs within families: familial integrity, parens patriae, and a child’s best interests. Keeping those three principles in mind, each can be seen to mutually constrain the other. A further complication arises in that even in the event that we resort to law, we are asking of a wide range of law enforcement institutions and personnel, and often of members of the judiciary, fully informed understandings of child abuse and often, too, a reconcilia­ tion of those harms with technical rules of evidence and requirements of the law. Some examples of the limitations of the law are demonstrated in the following paragraphs. When it comes to prosecutions, several limitations have been identified with the role of law in preventing and punishing child abuse. One is the extent of judicial understanding of the effects, indeed the horrors, and legacies, of child abuse. There is a view of far-from­ enlightened attitudes, exemplified, for example, in a major 2003 decision of the Australian High Court, where it was decided that sexual assault by a teacher was appropriately dealt with under the principles of vicarious liability rather than as a breach of the nondeleg­ able duty of care of the authority. With six separate judgments handed down, the decision rendered Australian law unclear. In Wangmann’s view, the High

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Court in this decision ‘‘. . . reveals a lack of appreciation of the role of power in child sexual assault, a narrow focus on frameworks of ‘intimacy’ and residential care situations, and a failure to consider the child’s point of view,’’ and further that this lack of understanding is in contrast to that shown in recent English and Canadian cases, where the courts have ‘‘. . . delivered nuanced judgments which demonstrated a more thorough understanding of the nat­ ure of child sexual assault.’’ Yet such a claim seems to fly in the face of extensive criticism of the evidentiary pro­ blems encountered by children when their abuse is finally brought before a court, claims that also demonstrate that there is a lack of appreciation of the nuances of abuse, particularly in the law’s formulaic requirements such as limitations, and the rigours of cross-examinations.

Predicting and Preventing Abuse Related to this lack of understanding is a lack of action by local social services, such as Haringey social services in Britain, which had failed, to take just one tragic example, to take active steps to protect Victoria (Anna) Climbie. The child, aged 8, sent from the Ivory Coast in Africa by her parents, to live with her aunt, suffered appalling abuse at the hands of her aunt and her boyfriend, who was nearly 20 years her junior. Among the litany of abuse later revealed upon the child’s death were that she had had a kettle of boiling water tipped over her head, her toes struck with a hammer, while she was also beaten and made to live in the freezing bath clad only in a rubbish bag. She died of hypothermia and multiple organ failure, largely as a result of this treatment by her aunt’s boy­ friend. She could not speak English and – being an illegal immigrant sent to Britain for a better life by her parents – was not registered at a local school. She had twice been admitted to hospital and returned to the hands of her abusers. Such episodes, of which there are many, have recently prompted Barnardo’s chief to call for the taking away of many more children into care at birth to stop them being damaged beyond repair by inadequate parents and parental substitutes, and for social workers to be brave about taking children into care. There has been an argu­ ment that nowadays social workers in multicultural societies are afraid to take children away for fear of political correctness. This was raised in response to the death of 8-year-old Anna Climbie, whose social worker (and police officer) was also black, but inexperienced and overworked – and whose tragedy pointed more to severe lack of resources and in particular of training – rather than to political correctness. Yet there are many other instances of children being returned home directly into the hands of those who have been abusing or neglecting them: it has also been raised as a concern for Indigenous children in remote Australian communities following

several recent deaths of young children through neglect. Social services are not there to assist the child and even if they are, there are many children who slip through the gaps, with social workers believing the guardians’ stories as to why they cannot see the child or being too busy to follow up. If children at risk of abuse or suffering abuse suffer further due to failures in the social welfare and child protection systems, even in developed countries like England and Australia, there have been similar criticisms of the failings of the law just as there have been of the failings of policy, including of the opportunities lost at the legal level with the framing of victims compensation legislation, and subsequent judicial interpretation: For example, a lost opportunity in 2004, when the New South Wales Court of Appeal in Forster and Jivan’s view failed to consider ‘‘. . . a plethora of research reveal­ ing the devastating harm victims of sexual abuse typically suffer and the substantial body of literature highlighting the historical and ongoing discrimination faced by victims of sexual abuse in both the criminal justice system and the civil system.’’ Such criticisms are reinforced by the related problem as to what the threshold of state intervention should be. This threshold will clearly depend upon a socially agreed definition of abuse, but most legislation in Western liberal democracies operates with some such triggering clause as ‘‘that the child concerned is suffering, or is likely to suffer, significant harm’’ (Children Act, UK, 1989, part IV, 31, 1a). Yet translating this to the practical level, where social workers and others are empowered to act, seems to elude the law enforcement capacity of the law. Another legal strategy deployed is that of sex offender monitoring and preventive confinement. These strategies have been analyzed in the context of a perceived moral panic over child sexual abuse that unleashed what some consider overly punitive and illiberal measures. Known also as preventative detention of dangerous offenders, measures such as this have as their goal protection of children through post-sentence monitoring or confine­ ment of the dangerous offender. These measures reflect the view that it is possible to predict the future occurrence of child abuse. A difficulty arises here, however, in that there as yet no universal, well-grounded, single cause, predictive theory of child abuse has been devised. Whether it is medically a pathological phenomenon with a precise identifiable etiology and whether a psy­ chological profile can be mapped out without sensitivity to social and economic circumstances continue to be a highly vexed question. Yet from the public’s point of view, laws such as Megan’s Law, put in place after a 7-year-old New Jersey victim of a twice-convicted sex offender liv­ ing across the street, which the U.S. Congress passed and which was ratified by President Clinton in April 1996, reflect the high rate of recidivism. The tension is between

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the imprecise science of prediction and the community’s joint demand for knowledge and their right to know of any potential sources of risk. Similarly, legislation man­ dating persons in positions of authority over children such as teachers to report suspected child abuse and the issuing of green cards to verify that certain persons are fit for that purpose are also thwart with problems, as often the tea­ chers are not trained to undertake such assessments.

Conclusion Child abuse is not new, but a concern with its prevalence and multiple forms is, as is the many ways in which the law and related social sciences are now called upon to respond. Hence social scientists and criminologists are concerned with the long-term effects of child abuse, and lawyers with the limitations of the law in dealing with it, even in the face of tangible physical injury. Children lose all sense of well-being and trust in the adults concerned, with potential long-term psychological injury another result. It is clear from the continuing prevalence of child abuse that human rights is no panacea on the ground. Much of the problem arises from the reality of the abuse occurring in the privacy of the home or institution. This is the case whatever the country in which the (family) violence occurs. Much more work remains to be done on the longterm consequences of child abuse: the ways in which it undermines children’s autonomy and violates their sense of self, the ways in which it shapes their subsequent personal and institutional relationships, and the means by which they navigate those relationships. Yet human rights legisla­ tion may serve as a reminder to other countries – particularly those as yet lacking formal human rights trans­ lation at the domestic level – of the reinventive capacity of human rights, and the particular relevance of the CROC, which may be used to rejuvenate at the domestic level a greater awareness and assumption of collective and indivi­ dual responsibility for the welfare of children and a greater empowerment of children themselves. But this remains an uphill battle throughout the world. See also: Ageism; Autonomy; Children’s Rights; Crime and Society; Custody of Children; Family, The.

Further Reading Brown M (2008) Risk, punishment and liberty. In: Thalia A and Cunneen C (eds.) The Critical Criminology Companion, pp. 253–264. Sydney: Hawkins Press. Browne A and Finkelhor D (1986) Impact of child sexual abuse: A review of the research. Psychological Bulletin 99: 66–77. Finkelhor D (1995) The victimization of children: A developmental perspective. American Journal of Orthopsychiatry 65: 177–193.

Finkelman B (1995) Child Abuse: A Multidisciplinary Survey. New York: Garland. Forde L, Thomason J, and Heilpern H (1999) Commission of Inquiry into Abuse of Children in Queensland Institutions, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (Forde Inquiry), Department of Families, Youth and Community Care, Queensland Government, Australia. Forster C and Jivan V (2005) Opportunity lost: In search of justice for victims of sexual assault. University of New South Wales Law Journal 28: 758–779. Giroux HA (2000) Stealing Innocence. New York: Palgrave. Jenkins P (2001) Pedophiles and Priests: Anatomy of a Contemporary Crisis. Oxford: Oxford University Press. Mathews B (2004) Judicial considerations of reasonable conduct by survivors of child sexual abuse. University of New South Wales Law Journal 27: 631–666. Meah N and Petchey P (2005) Liability of churches and religious organisations for sexual abuse of children by ministers of religion. Common Law World Review 34: 39–61. NSW v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511. O’Brien RC (1988) Pedophilia: The legal predicament of the clergy. Journal of Contemporary Health Law and Policy 91: 151–152. O’Connor P (2000) Squaring the circle: How Canada is dealing with the legacy of its Indian residential schools experiment. The Australian Journal of Human Rights 6: 188–215. Penovic T (2008) Testing the boundaries of administrative detention through the tort of false imprisonment. Torts Law Journal 16: 156–181. Victims Compensation Fund Corporation v GM [2004] NSWCA 185. Wangmann J (2004) Liability for institutional child sexual assault: Where does Lepore leave Australia? Melbourne University Law Review 5. http://www.austlii.edu.au/au/journals/MULR/2004/5.html

Relevant Websites http://brokenrites.alphalink.com.au/ – Broken Rites Australia: Fighting Church Sexual Abuse since 1993. http://www.inquirysaac.nt.gov.au/ – The Little Children are Sacred Report, Northern Territory Government (2007) Inquiry into the Protection of Aboriginal Children from Sexual Abuse.

Biographical Sketch Barbara Ann Hocking is an Associate Professor with the Faculty of Law at Queensland University of Technology in Brisbane, Australia, where she has worked for 20 years. She is past President of the Association for Canadian Studies in Australia and New Zealand (ACSANZ) and was awarded a Canadian Government Program in International Research Linkages (PIRL) in 2000 for a project concerning genetics, children, and human rights, with an international team. She was also awarded the Australian Academy of the Humanities Swedish Exchange Program in 2003, for a project dealing with genetics, law, human rights, and parenthood. Barbara Ann has also been awarded the Lilian Penson Fellowship of the Institute for Commonwealth Studies, London, for 2004–05, to work on a project dealing with Indigenous self-determination, which produced her edited book Rethinking Indigenous Self-Determination in 2005 (AIATSIS, Aboriginal Studies Press). Barbara Ann is also an Honorary Research Associate of the Riawunna Centre at the University of Tasmania, Australia (2007–10) in 2010 Barbara Ann published several papers on human rights in Human Rights Review.

Children’s Rights W Aiken†, (Formerly) Chatham College, Pittsburgh, PA, USA L M Purdy, Wells College, New York, NY, USA ª 2012 Elsevier Inc. All rights reserved. This article is reproduced from the previous edition, volume 1, pp 451–456, ª 1998, Elsevier Inc., with revisions made by the Editor.

Glossary Instrumental reasoning Causal reasoning that judges which consequences will flow from a given act. Liberationist A proponent of the view that children should have the same rights as adults.

Introduction Three basic kinds of questions occupy those who study children’s rights from a philosophical perspective. First, what moral standing do children have: Do they, like some animals, merely elicit duties on the part of others, or do they have interests of the sort that generate rights? Second, if they do have rights, what rights do they have? In particular, do they have a distinctive set of rights, perhaps changing over time as they develop? Or are they born with, or acquire, the same rights as adults? And third, would some entirely different model of the relationship between children and adults make more sense than these two? For example, would it be better to think in terms of parental accountability, the cultivation of harmonious parent–child relationships, or an organic community?

Children’s Moral and Legal Standing One possible children’s rights thesis is the assertion that children should be recognized as beings with independent moral worth and/or legal standing. Children seem to have an ambiguous status with regard to both moral and legal rights in contemporary Western societies: At issue is whether children’s interests require independent recogni­ tion or whether their moral status is more like that of possessions or animals. As a starting point, consider the list of rights in the United Nations’ 1948 Declaration of Human Rights. Some standard security rights such as rights not to be killed or tortured or enslaved certainly seem to apply to y

Deceased.

Protectionist A proponent of the view that it is morally acceptable or morally required to recognize special protective rights for children.

everyone, including children. But do children enjoy other rights that are predicated of all humans, such as the right to own property alone or in association with others? Children are invisible in the discussion of most of the civil, political, economic, and social rights. Some exceptions are the rights to special care and assistance (Article 25) and the right to education; the latter, how­ ever, is qualified by the condition that parents have a prior right to choose the education that shall be given to their children (Article 26). Article 16 is still more expli­ cit about parental authority over children; it asserts that the family is the natural and fundamental unit of society and that it is entitled to protection by society and the state. This priority of the family presents one of the major concerns in the literature of children’s rights, the status of children within the family. Are children sepa­ rate beings with moral worth independent of their parents or are they merely extensions or property of their parents, and thus subject entirely to parental authority? One meaning of ‘children’s rights’ invokes a denial of the second claim and a defense of the first claim such that children should be seen to have some indepen­ dent moral, and perhaps legal, status within the family. Thus children’s interests cannot automatically be assumed to coincide with the interests of their family, nor are their interests necessarily represented by the parent or head who speaks for the family unit. This logical and moral independence suggests that children’s rights, whatever they may be, might require protection by an outside agency, such as the state. The United Nations Convention on the Rights of the Child (often referred to as the CROC) came into force on September 2, 1990. It creates obligations under interna­ tional law monitored by the United Nations Committee on the Rights of the Child. Every member of the United

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Nations has now ratified the CROC except the United States (due to sovereignty and religious right issues) and Somalia. Two optional protocols were adopted on May 25, 2000. The first one restricts the involvement of chil­ dren in military conflicts, and the second one prohibits the sale of children, child prostitution, and child porno­ graphy (both protocols are ratified by the United States). The CROC acknowledges that every child has certain basic rights, including the right to life, privacy, freedom of expression, protection from exploitation, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping, and have a relation­ ship with both parents, even if they are separated. It requires separate legal representation for a child in any judicial dispute concerning their care and forbids capital punishment for children. Despite CROC ratifications by those nations, executions of child offenders still occur in Iran and Saudi Arabia (due to judicial discretion to deter­ mine the age of an offender). One practical problem relevant to this issue is the question of whether children have the legal standing to ‘divorce’ their parents, as in the 1992 case of Gregory Kingsley. This case centered on whether a 12-year-old could hire a lawyer to attempt to separate himself legally from his mother and attach himself to a new family. If the court recognized such standing, it would break new legal ground in the United States by supporting the position that children have substantial independent rights. Although a lower court in Florida ruled in the child’s favor, that ruling was overturned on appeal. Despite this negative outcome, it is likely that children (with the help of sympathetic adults) will continue to seek the legal standing to have a say in their own upbringing. It is difficult to say whether this innovation would be desirable. On the one hand, some children are forced to stay in abusive families, and others who seem to fall through the cracks in the child welfare system are deprived of necessary services and basic goods. Opening the door to self-help could improve their position. On the other hand, granting the possibility of such independent legal standing could prove to be highly disruptive to the cooperation, sacrifice, authority, and discipline that are needed to maintain a healthy functioning family. Furthermore, the neediest children may not be able to avail themselves of this legal opportunity because they would need the assistance of outside adults to intervene on their behalf. And this raises the possibility of inap­ propriate meddling by outsiders in the domestic, and so to some extent private, lives of adults, especially of those who are already disadvantaged by poverty and who may also be members of minority cultural groups whose prac­ tices of child rearing differ from those in the dominant culture.

Equal Rights A closely related aspect of debate about children’s rights concerns the nature and extent of any such independent rights for children. Do children have a unique set of rights, distinct from those of adults? Or do they have the same set of rights as adults? Many people believe that children differ from adults in morally relevant ways. It is these differences that justify the claim that children deserve to be treated differently than adults. So, morality would require that they be seen to have different rights and responsibilities than do adults regardless of the CROC. This position is known as pro­ tectionism. Protectionists believe that children have a special moral status that entitles them to special moral and legal treatment. They argue that, due to lack of experience, competence, and maturity, children have neither the knowledge nor self-control necessary for exercising adult rights and liberties well. Because children may not understand the likely consequences of their actions, they are more likely than adults to make decisions that lead to harm to themselves and to others. Because of their undeveloped character and lack of self-control, they may be less likely than adults to be capable of deferring gratification or resisting the harmful influence of others. Parents are expected to take charge of their children, protecting and guiding them through their long years of development, gradually expanding both their rights and their responsibilities. Protectionists also generally support limits on children imposed by the state. Among these limits are requiring attendance in school until a certain age, prohibiting the sale of alcohol, tobacco, and other drugs or sexually explicit literature or contraceptive devices to children, imposing curfews, mandating health care such as vaccinations, and generally limiting the con­ ditions under which children can work, engage in sexual activity, consent to abortion, refuse medical treatment, consent to be research subjects, make legal contracts, and be held legally accountable and punishable for their illegal actions. It is argued that such paternalism (or parentalism) is justified to protect and nurture children. However, protectionism need not imply the blanket acceptance of all and every possible type of restriction on children’s activities. Indeed, there are good grounds for thinking that particular limits should be decided on an issue-by-issue basis so that the restriction is actually tai­ lored to the particular child’s capabilities and to the unique context of the circumstances surrounding the restriction. When restrictions are imposed parentalisti­ cally in the name of child’s welfare, they should indeed primarily serve that welfare. Too frequently this type of justification can serve as a cover for the self-serving interests or mere convenience of adults. In this

Children’s Rights

protectionistic aspect of the debate about children’s rights, a central theme is the nature, extent, and moral defensibility of parentalistic limits. Some deny the appropriateness of any protective restrictions on children. Proponents of equal rights for children (liberationists) may or may not deny the empiri­ cal claims about children’s capacities; they deny, in any case, the moral and legal conclusions drawn from them. Liberationists emphasize the limits placed on children in contemporary Western societies, contrasting their con­ stricted lives with their greater participation in the adult world at other times and places. It is argued that children are wronged by these limits, and that only by recognizing equal rights for children (including the right to vote) will children be able to protect themselves from such future injustice. They believe children’s rights may include some protective rights, but only when these rights do not pre­ vent children from exercising the rights open to adults. Thus, children may have special access to schooling, but compulsory schooling would violate their equal rights. Not only do liberationists maintain that the alleged nega­ tive consequences of granting equal rights to children are overblown (and so no utilitarian justification is warranted here), they also maintain that denying children adult rights is unjust. It is unjust because there are no morally relevant differences between children and adults that would justify this fundamental difference in moral stand­ ing. Because justice requires the equal treatment of relevantly similar cases, placing limits on children that are not equally placed on adults is indefensible. Of course, that are many differences between children and adults, but these differences are not seen to be morally relevant. Liberationists believe that the morally relevant determin­ ing factor that is sufficient for individuals to be granted a full set of (adult) rights is whether they are capable of good instrumental reasoning, where instrumental reason­ ing is seen as the ability to make accurate judgments about the consequences of a given action. Protectionists deny that instrumental reasoning is sufficient and argue for more stringent standards that include the ability to make good prudential and moral judgments, attributes that children may not yet have acquired. Is the acquisition of these further capabilities morally relevant to be granted a full set of rights? Liberationists can deny it either on epistemological grounds (relying on a skepticism about anyone’s ability to use reason to evaluate ends) or on grounds of political philosophy (e.g., liberal or libertarian theories that demand political neutrality about concep­ tions of the good). So they argue that the possession of instrumental reasoning alone is morally relevant in decid­ ing moral standing. And even young children are capable of this type of reasoning. Another reason for choosing instrumental reasoning as the criterion for equal rights is that it permits the drawing of a sharp line between the class of individuals who have

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equal rights and those who do not. Normal adults are capable of such reasoning and so should have adult rights. But many adults may not satisfy the protectionists’ more stringent criteria of making good prudential and moral judgments. So they, like many children, would have to be excluded from those who have full rights. Otherwise, it would seem that granting full rights is arbitrarily done on the basis of mere chronological age, which itself is not morally relevant. So unless those adults were, like chil­ dren, deprived of adult rights, universalizability (and hence justice) would be violated. But now the line distin­ guishing right holders from non-right holders is very fuzzy indeed. As it turns out, the only criterion that guarantees all normal adults their rights also lets children have a full set of rights. Protectionists could respond to this position in a vari­ ety of ways. They might argue that there is no necessity for such a sharp dividing line between those who may enjoy adult rights and those who do not, and that there are good reasons for preferring a more stringent standard. Their argument is partly consequentialist, partly justice based. Recognizing equal rights for all those capable of any level of instrumental reasoning would be quite harm­ ful to both children and society at large. Raising the requirements would prevent such harm. It is true that some children, especially older children, would still be able to meet this stronger requirement, but there are alternative ways to recognize their appropriately greater liberties. Conversely, it is true that stronger requirements would exclude some adults. There are a variety of ways to deal with this fact. Extreme cases do require limits on liberty, as society already recognizes. Less extreme cases could justify the granting of full adult rights, in spite of one’s failure to meet the criteria, because one has shown oneself incapable of learning about the world indirectly, and so needs the freedom to learn about it the hard way. This sad fact does not undermine the position that chil­ dren (and society) generally benefit from an extended opportunity to learn to deal with the world from a rela­ tively protected position. When children reach the age of majority (whatever that might best turn out to be), they will be granted adult rights even if they have not learned all the necessary lessons. Liberationists could respond by underlining the simi­ larities between arguments against children’s rights and now-discredited arguments against women’s rights. This analogy leads to a debate about children’s basic nature. Protectionists respond that there are indeed fundamental moral differences between women and children: Women are fully developed, mature humans completely capable of taking their rightful place in human society, whereas children are unfinished humans who need time and help to develop the capacity to exercise full adult rights. Liberationists may argue that if we granted children full rights we would soon see that they exercise them at least

420 Children’s Rights

as sensibly as most adults. Or they might object that our failure to recognize equal rights for children infantilizes children; if they had equal rights, they would very soon develop the necessary capacities. Protectionists cast doubt on both theses, pointing to the questionable underlying model of human development, that is, one that sees this development as infinitely flexible and selfdetermining.

Control over Children What is children’s role vis-a`-vis the family? Liberationists argue that a child’s connection with the family is volun­ tary. Children are to remain with their families so long as a mutually agreeable relationship can be negotiated. However, protectionists deny this contractarian approach and contend that families appropriately exercise control over children. Many believe that family authority over children is protected by a strong right to privacy; this right under­ mines any interference by the state in parental treatment of children, even to protect children from what it con­ siders abuse. However, this exceptionally strong stand for the freedom of the family from state interference assumes that the family is a single social unit with common inter­ ests rather than a collection of persons who may have conflicting interests. It also posits a ‘head’ of the family (paterfamilias) who determines and represents its common interests. Both of these assumptions may be disputed. This extreme version of family rights also presupposes a liber­ tarian political model at odds with the jurisprudence, case law, and political reality of most modern Western states. Weaker versions of this position hold that the state may intervene to protect children against abuse, but should leave many other decisions that may result in less than socially preferable outcomes in the hands of the family. Thus, for instance, parents can justifiably deprive their children of sex education or indoctrinate them in bizarre religious views. Frequently, the justifica­ tion for noninterference with family authority is an appeal to liberalism’s requirement that individuals be allowed to determine their own life plans and to pursue their own conceptions of the good without interference from the state, provided of course they do not directly harm others. But this raises problems when generalized to protect the family from interference. Although the adults’ rights may be respected in this practice, it is not clear that the child’s future capacity to autonomously develop a life plan and conception of the good is being respected; it could even be argued that the child is being harmed by this. By defending parental immunity from interference, respect for the rights to autonomy are being limited to the first generation. It would seem that liberal principles should justify society’s intervening to guarantee children the

support and education that would enable them to develop into autonomous adults (with the capacity to decide on their own conception of the good). If so, then the appeal to liberty to justify noninterference in the family seems misplaced. Nonetheless, less extreme appeals to the gen­ eral principle of family privacy and noninterference are not uncommon, especially if the threat to the child is only of indirect harm. Any adequate defense of an expanded theory of children’s legal rights against parental authority or actions must come to terms with this strong tradition of family sovereignty present not only in the West, but in many other societies as well. The view that the family should have exclusive authority over children constitutes one end of a spectrum. At the other end are theories holding that the state should wield substantial direct power over children, in spite of parental wishes. Such views go back to Plato’s assumption in The Republic that the children of the guardians should be raised in common, without even the knowledge of their parents. More recent examples of the attempt to empower the state in this way are the Nazi position that children’s primary allegiance should be to the German state and the Soviet experiments with boarding schools for children. It is questionable whether either of these extreme views bodes well for children’s welfare. In 1989, the Canadian House of Commons voted unanimously to end child poverty by the year 2000. In India, child labor is prolifer­ ating as a problem, but is only banned in ‘hazardous’ industries, hotels, restaurants, and as domestic servants. In 2006, following concerns expressed by the committee in relation to the Ireland election, the Irish government, having ratified CROC, undertook to amend the constitu­ tion to make a more explicit commitment to children’s rights. This may partly have been in response to the exposed scandal of child physical and sexual abuse occur­ ring in children’s homes run by the Roman Catholic Church in that country. The United Kingdom, having ratified the CROC in 1991, was found by the supervising committee to have inadequately dealt with child poverty, violence toward children, the use of custody for young offenders, welfare of children in custody, and unequal treatment of asylum seekers. In Australia, a High Court majority decided that permanent detention at Ministerial discretion of a stateless child asylum seeker (without access to habeas corpus) did not breach any legal right in that country.

Special Protections and Entitlements If liberationists are correct, few special protections for children are justifiable. Yet many contend that a crucial important function of children’s rights is to provide children with protection against harm, exploitation, oppres­ sion, misuse, and neglect by others, including their parents.

Children’s Rights

Children’s rights could also reasonably be expected to guarantee children the prerequisites for flourishing. One might hold that the right to protection from abuse is unnecessary because parents have natural affection for their children, and know and want what is best for them. Hence, parents can be relied on to act in ways that will prove beneficial to their children within the context of the family’s values. So legal rights are not necessary to protect children from their parents. Yet children have not always fared well at the hands of their parents. Parents have physically and sexually abused their children, exploited them for their labor, failed to provide for their physical needs (especially of female children in many cultures), put children out as sex work­ ers, physically mutilated them, or sold them as brides. Parents have also refused children appropriate health care. Some have denied their children vaccinations against deadly diseases. Others, such as Jehovah’s Witnesses or Christian Scientists, have denied their chil­ dren lifesaving transfusions or therapies that would have prevented serious disability or even death. Psychological abuse and neglect of various kinds are also common. One might therefore reasonably conclude that the state has a duty to intervene to protect children from seriously harmful treatment by parents, or by others with power over children. No special theory of inherent moral rights is required to justify this interference, because the state has an interest in insuring the well-being of its future citizens and can confer these rights of special protection from harm upon children and enforce them, when neces­ sary, purely on the grounds of promoting the common good. Such intervention is based on a broader duty by the state to provide basic protections to relatively powerless individuals. More controversial, but no less important, is the role of the state in guaranteeing children the goods, services, and treatment necessary for physical, social, and psychologi­ cal well-being and moral agency. The issue of parental abuse, neglect, and deprivation naturally leads to contro­ versy about the appropriate standards required, and which goods and services parents can reasonably be expected to provide. What is necessary for physical and psychological health, as well as mental and moral development, may be funda­ mentally disputed both within particular cultures and among different cultures. One fundamental disagreement is about proper gender roles: Do young girls have a right to the same kind of education as young boys? And is female genital alteration essential, as some cultures believe, or is it, as others believe, an extreme violation of girls’ rights? Other disagreements revolve around the value of severe corporeal punishment, appropriate dietary or medical practices, the type and level of education children have a right to expect, and so forth; these can often set parents at odds with the norms of a given society, and they differ

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radically in different societies. More generally, people dis­ agree about appropriate levels of parental responsibility and sacrifice, as well as the extent to which other agencies such as the state should take responsibility for providing children with the necessities. Some believe families should be self-sufficient, but in many societies that is an unrealistic ideal. At the very least, public health goods like clean drinking water must be provided by the state; more expan­ sive views posit pervasive involvement by the state in ensuring children’s needs.

Questions About Rights Approaches Perhaps arguing in terms of rights is not the best means of promoting children’s interests. There are, on the one hand, substantial epistemological and ontological compli­ cations involved in evoking extralegal moral rights. And, on the other, legal rights may be obscured by incoherent common-law traditions and rival legislative jurisdictions. There is, in any case, a lack of clear theoretical coherence from case law and judicial review. In addition to these problems, it has been argued that the rights approach focuses attention on the individual as an isolated and independent moral unit. Individual rights, thus construed, will often conflict with the rights of others. One problem is that there are no widely accepted ways to adjudicate between such conflicting rights. Another equally serious problem is that this approach creates an adversarial and legalistic relationship where there must be winners and losers rather than a coopera­ tive one emphasizing compromise and the continuation of the relationship. Thus, children and families may better be served by different moral approaches. For example, one might instead stress parental responsibility to emphasize paren­ tal accountability and moral obligation. Or, emphasizing ‘caring’ and the cultivation of harmonious parental–child relationships would better account for the process of helping children learn to live with and adjust to others. Yet another approach would be to envision the family as an organic community rather than a contractual associa­ tion, stressing the natural process whereby children gradually emerge as individuals, maintaining their ties to the larger whole. In response to these criticisms, advocates of rights approaches point to the history of abuse, exploitation, oppression, and neglect of children. Nor are these pro­ blems confined to the past: On the contrary, for many children, conditions are worse than ever. Advocates argue that in spite of its problems, attributing rights to children is the best way to draw attention to and begin to remedy this morally objectionable treatment. Once every child’s basic needs and interests are met, there will be time to consider whether this model is optimal. Concerned for

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the well-being of all the earth’s children, the CROC offers, when fully implemented, a noble vision that should be endorsed. See also: Ageism; Autonomy; Child Abuse; Family, The; Rights Theory; Women’s Rights.

Further Reading Aiken W and LaFollette H (eds.) (1980) Whose Child? Totowa, NJ: Rowman & Littlefield. Archard D (1993) Children: Rights and Childhood. London: Routledge.

Blustein J (1982) Parents and Children: The Ethics of the Family. Oxford: Oxford University Press. Cohen H (1980) Equal Rights for Children. Baltimore: The Johns Hopkins University Press. Ladd RE (ed.) (1996) Children’s Rights Re-visioned. Belmont, CA: Wadsworth. O’Neill O and Ruddick W (eds.) (1979) Having Children: Philosophical and Legal Reflections on Parenthood. Oxford: Oxford University Press. Purdy LM (1992) In Their Best Interest? The Case against Equal Rights for Children. Ithaca: Cornell University Press. Scarre G (ed.) (1989) Children, Parents, and Politics. Cambridge: Cambridge University Press. United Nations General Assembly (1989) Convention on the Rights of the Child.

Christian Ethics, Protestant J Lyden, Dana College, Blair, NE, USA

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, volume 1, pp 457–469, ª 1998, Elsevier Inc.

Glossary Anabaptism A sixteenth-century Protestant movement that rejected infant baptism, claiming that only those old enough to express faith should be baptized, as only they could be saved by faith. Dialectical theology A movement begun by Karl Barth in the 1920s that emphasized the ‘infinite qualitative difference’ between humans and God, as well as the depth of human sin and the need for God’s grace. Evangelism A movement within Protestantism emphasizing the need for personal conversion to faith in Christ through a recognition of the ‘good news’ (Greek, evangel) of his gift of salvation. Liberation theology A contemporary theological movement proclaiming that salvation involves a total liberation involving political, economic, as well as spiritual freedom. Neo-orthodoxy A movement of twentieth-century Protestant thinkers who rejected liberalism and sought to return to traditional Protestant views on human sin and the need for God’s grace while remaining relevant to the political situation of the times. Pietism A seventeenth- and eighteenth-century Protestant movement that emphasized a personal religious experience of Christ’s salvation and a moral life lived in response to God’s grace. Protestantism A group of Christian churches that desired to reform Western Christianity and separated

from Roman Catholicism beginning in the sixteenth century. Protestant liberalism A movement that began in the nineteenth century, primarily in Germany, which sought to revise Christian doctrine so that it could be brought into harmony with modern science and philosophy. Puritanism A Calvinist movement that emphasized a personal experience of salvation by Christ; strict moral discipline and purity as the correct form of Christian life; a convenant of obedience to God, who was viewed as absolute sovereign over all; and societal reform, to convert the world to the way of Christ. Rationalism A seventeenth- and eighteenth-century intellectual movement that accepted reason as the chief standard for truth; it included both those who rejected traditional religion as well as those who sought to defend it as ‘reasonable.’ Reformed A branch of Protestantism that formed in Switzerland, The Netherlands, and France influenced most by the ideas of Ulrich Zwingli and John Calvin. Situation ethics A branch of ethics developed in the 1960s by Joseph Fletcher which claims that one cannot make ethical decisions based on rules that precede situations, but only by determining what maximizes love for all in a given situation. Social Gospel A Protestant movement developed in early twentieth-century America that emphasized the social character of sin and salvation, and the need for society to be reformed along socialist lines.

Protestant Christian ethics refers to the systems of ethics derived from those Christian traditions which began, directly or indirectly, as a result of the Protestant Reformations of the sixteenth century. These movements resulted in a break from the Roman Catholic Church, which up to that time had held almost total control over the Christian churches of Western civilization. The Protestant churches had deep criticisms of both the moral practice and the doctrinal theory of the Roman Catholic Church, and in order to practice Christianity in the way they believed to be correct, they felt they needed to declare their independence from the authority of Roman Catholicism. There is not, however, complete

unanimity among Protestants on ethics or any other issue. The only thing that unites them unequivocally is the historic decision to break from Catholicism, and there­ after they began to disagree, at times violently, on a wide range of issues. Accordingly, to speak of Protestant ethics is to speak of a family of ethical systems that bear some common resemblances as well as many traits that distin­ guish them. If there is one resemblance among them that stands out, it would be the belief that humans are accepted or ‘justified’ by God not on the basis of the good works they perform, but solely on the basis of their faith in Christ as the redeemer who brings the grace of God’s salvation by

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his death and resurrection. Since ethics (in large part) sets forth guidelines for what works one ought to do, and Protestantism states one need do no works to be saved, Protestant ethics might seem to be an oxymoron. In fact, however, Protestants have had much to say about ethics and the works Christians ought to do – not because they need do them for salvation, but because such good works make up the way of life of those who believe themselves redeemed by Christ’s promise of forgiveness and grace.

Beginnings: The Lutheran Reformation Martin Luther Martin Luther (1483–1546) was by most accounts the founder of Protestantism, although he did not initially intend to found a separate church or begin a religious movement. His basic belief that Christians are justified only by their faith in Christ was somewhat at odds with the dominant theology of his day, which declared that one can to a certain extent ‘merit’ God’s Grace through good works. Luther’s understanding of ‘justification by faith alone’ led to his criticisms of certain Catholic practices such as the sale of ‘indulgences’ which allegedly would aid one’s salvation in exchange for the good work of a mone­ tary contribution to the building fund for St. Peter’s Cathedral in Rome. Luther wrote ‘‘Ninety-Five Theses’’ critiquing the use of indulgences in October 1517, and these were quickly printed in pamphlet form and disse­ minated to the public. Luther implied that the church was exploiting poor Germans by taking their money in exchange for vain promises of salvation, when in fact salvation comes only through faith. In time, Luther’s criticisms of the Pope and the Roman Catholic Church became more serious, as he came to believe that the Church was completely corrupt and governed by Satan. Luther’s reformation, however, was far from being a simple moral reform of the church. He believed that the essential problem with the church was not its morals, but its doctrine – specifically, its failure to recognize that justification is by faith alone. For this reason, though he critiqued the ethical behavior of the Catholics, Luther’s own theology may be said to have emphasized ethics less than theirs. The place of ethics and good works in Luther’s own theology is not always correctly understood, largely because he was so adamant that good works have no role in justification. Luther explained his understanding of ethics, good works, and the role of the moral law in Christian life through certain key ideas, including those of the two uses of the law, the two kingdoms, and the priesthood of all believers. There are two uses of the law, Luther claimed, the civil and the theological. The civil use is ordained by God to keep order and to restrain evildoers in the world. This law

is expressed by civil governments that develop their sys­ tems of law based on reason and conscience, not on the basis of the truth revealed in the Bible. Rulers need not be Christian to be good rulers, as they govern on the basis of principles shared by all peoples regarding the need to punish those who infringe on the public good. This use of the law then is not the sole possession of Christians, and can form a basis for ethics in all societies, whatever their religions. The theological use of the law has relevance to Christians but only as a preparation for hearing God’s forgiveness. When they consider the demands of the moral law and their inability to keep them, humans are driven to despair by their own imperfection (as Luther himself was as a young monk). Their only hope is to give up the desire to be perfect and accept their own sinfulness as well as God’s love which atones for and forgives their sins. Luther has no place for the moral law as part of Christian spiritual development per se, as there is no use of the law that pertains specifically to Christian life after the acceptance of God’s forgiveness. This does not mean that the Christian will not uphold the law, in Luther’s view, for the Christian will wish to follow the law to please God and serve the neighbor – but this is not done to justify oneself, nor does it mean that one is bound to the law. The Christian is free from the law, subject to none, and yet chooses to be subject to all in love. If one has experienced God’s love, one will surely wish to share it with others (Luther reasoned), and this includes doing good works for the sake of others – but not for the sake of obedience to a law, or to obtain salvation. Luther’s notion of the ‘Two Kingdoms’ further devel­ ops his ethics. There is the Kingdom of God, of which all Christians are a part, and there is the Kingdom of the world. The latter is governed by the civil law as opposed to a knowledge of Christ. The Kingdom of the world is full of sin that can be restrained only by the force of law and the threat of punishment. The Kingdom of God, on the other hand, is made up of Christians who live on the basis of love of God and neighbor. They do not require the laws of the world to be ethical, because insofar as they are redeemed they freely love others through the love of God active in their lives. This does not, however, mean that they are free to disregard the laws of the world, for they still live in the Kingdom of the world as well as in God’s Kingdom. Christians obey the laws of the land because they accept the order civil laws bring to the world. For this reason, Christians can be soldiers or executioners and kill in the service of the state even though the life of the Kingdom of God rejects violence and retribution for evil. Luther justified this apparent contradiction by claiming that the Christian does not kill for himself or in sinful hatred of the other, but solely

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as an agent of the state which is ordained to keep order, through force if necessary. Luther’s notion of the ‘‘priesthood of all believers’’ also contributed to his ethics in the claim that all Christians are ‘priests’ who serve Christ in their ordinary occupa­ tions. One does not need to be a monk or nun to serve God; one serves God best by realizing one’s profession is a vocation, a calling from God to aid the neighbor by performing a useful, honest service to the community. The Lutheran Tradition Lutheran ethics since Luther has emphasized personal morals more than societal reform, not necessarily because Luther neglected the latter but because his notion of the Two Kingdoms has tended to support a separation of the Christian life from politics. Luther himself was a political conservative, as shown by his condemnation of the pea­ sants’ revolt of 1525 and his admonitions to the authorities to destroy the rebels. More important, however, Luther did not develop an ethical basis for criticism of the state as he tended to accept the Kingdom of the world and its use of the civil law as distinct from the ethics that govern the personal lives of Christians. It has even been argued that Nazism succeeded in Germany due to the strongly Lutheran character of the country, in that soldiers who were ‘only following orders’ in committing atrocities without questioning their ethical basis were expressing the Lutheran idea that the laws of the world’s kingdoms are distinct from the laws of God’s Kingdom, and as such not subject to critique by Christians. This was not the position of all Lutherans, certainly, but the lack of a Lutheran ‘political ethic’ may have contributed to the generally passive stance the German churches took in regard to Nazism.

John Calvin and the Reformed Tradition Calvin’s Revisions to Luther John Calvin (1509–64) is the most significant Protestant thinker after Luther. His influence was most directly felt in Switzerland, as he controlled the Protestant commu­ nity of Geneva from 1536 to 1538 and 1541 to 1564. Before this, Protestantism had already taken hold in Switzerland under the leadership of Ulrich Zwingli (1484–1531) and others, and the Protestant churches became known as ‘Reformed’ churches rather than ‘Lutheran’ churches. Calvin shared Luther’s belief that all are justified before God by faith, not works, but he revised and devel­ oped Luther’s theology and ethics in a number of ways. He added a third use of the law to Luther’s two, this third being specifically to give structure and guidance to the Christian’s life. Calvin had a more positive view of law

than Luther, as he believed obedience to God and recog­ nition of God’s absolute sovereignty over all creation were crucial to Christian faith. Though Lutherans have accused Calvin of requiring good works for salvation, Calvin insisted as much as Luther had that works are not the basis but the product of faith. To follow the works of the law is required of Christians, not to be saved but to glorify God in all they do by obeying his holy will. Calvin stressed that one can do no good work unless God’s grace converts the human will from sin to obedi­ ence – thus it is truly only the ‘elect,’ those chosen or ‘predestined’ by God for salvation, whose works are pleas­ ing to God. Good works, while not the basis of salvation, may be signs that indicate that God’s grace is at work in the one who does them. Calvin also emphasized the concept of ‘stewardship,’ according to which we can best serve God by being good stewards and caretakers of all that God has given us. Properly speaking, everything belongs to God, but God lets us use this world and the things in it. If we use them well, for God’s purposes, we are serving God and the creation in an ethical manner. Calvin also supported the separation of church and state, as Luther had, but in practice he controlled much of the secular government as well as the church in his own Geneva. Calvin did not believe the church should meddle in state affairs, but he did suggest that a rebellion against unjust rulers might be justified on a Christian basis. This went against Luther’s view that rebellion even against a tyrant is always wrong as it invites anarchy.

Later Calvinism The followers of Calvin made much of his view that rebellion may sometimes by justified – most notably John Knox (1532–72), the Scottish reformer who sought to justify rebellion against the Catholic forces of France and (during the reign of the Roman Catholic Queen Mary Tudor) England. Calvinists came to espouse a more mili­ tant political ethic than Lutherans as they sought to make the world more like God’s Kingdom rather than tolerating it as separate from God’s Kingdom. Calvin himself had been no more a revolutionary in politics than Luther was, but Calvinists often justified the use of force or rebellion against those who stood in the way of God’s will (see Puritanism). Later Calvinists also prospered economically, in part because of their clean and disciplined lifestyle which encouraged thrift and sobriety. Their ethic of stewardship led them to view their possessions as only God’s posses­ sions, held by them to show forth God’s glory, and they therefore tended not to dissipate their resources but con­ serve and save. The sociologist Max Weber (1864–1920)

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claimed that Calvinism contributed to the development of capitalism through this ethic of stewardship as well as the belief that prosperity was a sign of God’s favor.

Anabaptism and Radical Reformers The term ‘Anabaptism’ refers to the Protestant movement that rejected infant baptism, claiming that only those old enough to express faith should be baptized, as only they could be saved by faith. Conrad Grebel (1497–1526) began the movement in Zurich, where Zwingli opposed it. Anabaptists were fiercely persecuted by the Lutherans and Reformed Protestants as well as by Roman Catholics, and this seems to have increased the Anabaptist convic­ tion that these others were not true Christians as they did not live the Christian life. Anabaptism came to stand for a disciplined ethic, according to which those who lived immorally could be ‘banned’ or ostracized from the com­ munity; a commitment to religious liberty and freedom of belief; and a separation of church from state. In these latter two beliefs, Anabaptists appear quite modern. In the sixteenth century, however, it was viewed as anarchy and sedition to question the state’s support of the church or to allow multiple religions to exist within one state.

Militant Anabaptists Some early Anabaptists reacted to the perceived impurity of Christianity with an attempt to purify it, by force if necessary. Thomas Muentzer (1489–1525) supported the peasants’ revolt of 1525, an uprising that began out of their demands for fair treatment from the landowners. Muentzer claimed that because their cause was just, God would aid them in destroying the numerous opposing forces of Catholics and Lutherans. In Muentzer’s view, rebellion and force were righteous tools of God to be used against oppressors, and the state need not be obeyed by Christians when it conflicted with God’s moral law. Unfortunately for the peasants, God did not rescue them and they and Muentzer were slaughtered without mercy by Lutheran and Catholic armies. In 1533, a similar incident occurred when Dutch Anabaptists declared Muenster the new Jerusalem, insisting all adults undergo a second baptism or be killed. All property was held in common, polygamy was enforced, and those who resisted were executed. Within 2 years, the city fell to pressures within and without, and most of the survivors were killed. This type of incident left many other Protestants with the idea that Anabaptists were violent fanatics who would enforce their rule on others as they believed they knew God’s will better. Their advocacy of rebellion seemed to many a terrifying invitation to social chaos.

Pacifist Anabaptists More typical of later Anabaptism were the pacifists who believed that all violence was wrong because it contra­ dicted the ethics of Jesus. In spite of their pacifism, however, they were viewed as just as seditious as the Anabaptists who advocated violent rebellion. Their refu­ sal to take legal oaths or serve in the military, as well as their rejection of infant baptism, were viewed as a rejec­ tion of the authority of the state – which in fact they were. The pacifist Anabaptists no less than the militants believed that the state had no authority over them regard­ ing their views on these issues, as they were following a biblically based ethic for a separated Christian commu­ nity. They insisted on a rigorous code of behavior that could not be practiced by those who were ‘of the world’; in this sense they rejected the world’s kingdoms rather than trying to change them. Today, the heritage of these Anabaptists is carried on largely by groups such as the Mennonites, founded by Menno Simons (1496–1561).

Pietism Johan Arndt and Philip Jacob Spener Pietism was a movement that developed in the seven­ teenth and eighteenth centuries that emphasized a personal religious experience of Christ’s salvation and a moral life lived in response to God’s grace. It sought to restore the role of emotion in religion that it believed had decreased since Protestantism became codified by ‘ortho­ dox’ Protestant theologians after the Reformation. ‘Orthodoxy’ means ‘right opinion,’ and the orthodox Protestants tried to express exactly what one must believe in order to be saved. This led to an intellectualization of the faith and bitter fights within both Lutheranism and Calvinism over how Christian faith should be expressed. Pietism, in contrast, stressed the unity of all Protestants and deemphasized doctrinal matters to some extent. What matters is one’s experience of salvation and the moral behavior that results from it. It was in the work of Johan Arndt (1555–1621), a German Lutheran minister, that pietism first gained expression. He emphasized the need for repentance and a holy Christian life; true Christianity is expressed in love of God and neighbor more than in squabbles over doc­ trine. If one does not live a Christian life, he claimed, one cannot maintain correct belief. Philip Jacob Spener (1635–1705) supported Arndt’s views and argued further that ordinary Christians should read and study the Bible in groups to develop their own personal views of the Bible. These Bible study groups, collegia pietatis, effectively democratized the pietist movement by allowing all to voice opinions without fear of contradiction. Pietist tolerance also insisted that

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Christians should show love to unbelievers rather than coercing them to faith. After August Hermann Francke (1663–1727) founded several pietist schools, including the University of Halle, the movement grew beyond Germany to Scandinavia, Russia, England, and America. Count Zinzendorf and the Moravians One of those educated in Francke’s schools was Count Nikolaus Ludwig von Zinzendorf (1700–60). He invited a group of Moravian pietists to reside on his estate in 1722 where they founded a community and the Unity of the Moravian Brethren. Under Zinzendorf’s leadership they became an influential group that emphasized an intense personal experience of being purified of sin by Christ’s death on the cross. This was to be followed by internal regeneration by Christ’s love that enabled believers to share this love within their communities and with the outside world.

British Protestantism Several important movements developed in Great Britain in the seventeenth and eighteenth centuries, all of which spread to the British colonies in America. The English (or ‘Anglican’) church had separated from Roman Catholicism in 1533 when the Pope refused to annul the first marriage of King Henry VIII. He responded by declaring the English Church independent of Rome and appointing his own archbishop who annulled the marriage. Henry was a staunch Catholic in doctrine, however, and it was not until his death in 1547 that real Protestant reforms were intro­ duced. Except for a brief return to Catholicism as the state religion during the reign (1553–58) of Henry’s daughter Mary Tudor, the English church continued to be Protestant – though it remained closer to its Catholic roots than many other Protestant churches. Partly for this reason, movements arose that rejected what they perceived to be vestiges of Catholicism within the church. Puritanism Puritanism refers to a Calvinist movement that emphasized a personal experience of salvation by Christ; strict moral discipline and purity as the correct form of Christian life; a convenant of obedience to God, who was viewed as absolute sovereign over all; and societal reform, to convert the world to the way of Christ. This last came to include a commitment to education and literacy, temperance, and democracy. Puritans founded hospitals, schools, and other charity institutions for the poor. The movement began within the Anglican church in the late sixteenth century when many clergy refused to

accept the form of worship and church organization enforced by the state. The Anglican church was ‘episco­ pal’ – that is, run by bishops (Greek, episcopoi). Many Puritans, however, followed Calvin’s view that the church should be ‘presbyterian’ – that is, governed by councils of ‘elders’ (Greek, presbyteroi) and not by a bishop – some even advocated congregationalism, the idea that indivi­ dual congregations are accountable to no outside authority but God. These ideas challenged the authority of the Anglican church and worked to increase a desire for democratic reforms within the church and society. Many Puritans became separatists, advocating separation from the Anglican church, and they were persecuted for their radical social ideas. In the 1640s, the English Parliament, supported by the army of Oliver Cromwell (1599–1658), made the state church presbyterian and tried to destroy the episcopals. The King was beheaded, the monarchy was abolished, and Cromwell was named ‘Lord Protector.’ After his death, the monarchy and the Anglican (episcopal) church were reinstated, but for a time radical political and social ideas flourished under the banner of Puritanism; for example, the ‘Levellers’ believed that all men should have the vote, not only propertyholders (as was the case then), and the ‘Diggers’ believed that there should be no private property, as the gifts of God’s creation are to be shared equally by all. Not all Puritans were political radicals, however, and there was great variety among them in their ethical beliefs. Quakers The Society of Friends, or ‘Quakers,’ began with the idea of George Fox (1624–91) that all have an ‘inner light’ of truth within them. The Bible is not the final standard for revelation, as God speaks to and through each person. There was no formal authority structure among the Quakers, no ordained clergy, and no liturgy for worship services. The silent meeting form of worship allowed each individual a chance to speak if and when the spirit moved him or her, and all views were tolerated. The community reached joint decisions via a consensus process that involved each person contributing to the discussion. Quakers were and are devout pacifists, believing that one should respond to the threat of violence with love, as there is something of God in everyone that can be addressed and won over. Quakers have opposed war and slavery and worked for equal rights for women and mino­ rities, and have come to be identified with an ethic that is politically progressive as well as nonviolent. Rationalism In the eighteenth century, an intellectual movement known as ‘Rationalism’ developed that accepted reason as

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the main standard for truth. The development of modern science as well as biblical criticism was leading many to conclude that Christianity and the Bible were not espe­ cially reasonable, as miraculous events contradicted the laws of nature. Some rejected God altogether; others rejected traditional Christianity but held onto a belief that there is a God, one who does not want us to believe in Christ or miracles but only asks us to be moral. These ‘deists’ emphasized the moral core of Christianity and discarded the rest of its beliefs, which they regarded as outdated superstitions. Still other rationalists sought to reconcile traditional Christianity with a belief in reason. Among these was John Locke (1632–1704), who argued that Christianity holds truths that are above the realm of reason but none con­ trary to it. Human reason knows that we ought to be moral; God’s revelation in the Bible does not contradict this, but supports and clarifies this basic truth. Locke accepted many traditional Christian ideas such as the miracles of Jesus, his virginal conception, and his resur­ rection from the dead (all taken as reasons for confessing that Jesus is the Christ) – but Locke’s ‘reasonable’ Christianity does not claim that the death of Jesus takes away human sin or that God’s grace restores our freedom to do good. Rather, Locke viewed Jesus primarily as a moral teacher and example who makes the law easier to understand and to follow, allowing easy forgiveness for those who repent their sins. This law, however, can be understood without Jesus, so it is not clear that Christianity really adds anything to ethics that is not previously known by reason. Ultimately, Locke’s ethics are based on reason rather than revelation, just like the deists’ ethics. Bishop Joseph Butler (1692–1752) was another Anglican who sought to show that Christianity and reason can be unified. His ethics emphasized virtues that can be known by reason, such as temperance, moderation, and most of all benevolence. The Bible adds authority to the moral law, but our own conscience and a sense of shame and duty are the basis for our obedience. Butler wanted to show that morality is reasonable and natural against the claims of Thomas Hobbes (1588–1679) that human nature is inherently selfish and unconcerned about others except insofar as necessary for personal survival. To love the neighbor, Butler argued, is not unnatural or at odds with self-love; in fact, the two harmonize as one’s private good (sought by self-love) increases as part of the public good (sought by benevolence, love for others). Even the com­ mandment to ‘love your enemies’ is rational as the desire for revenge only leads to self-destruction whereas for­ giveness leads to personal as well as corporate happiness. To seek the happiness of all, the self included, is not only God’s command but the commandment of reason. In Butler’s view, God functions primarily as the backdrop

to morality, the highest object of our love and happiness that we seek as our ground and goal. In these efforts to show that Christianity and reason are in harmony, however, critics felt that Christianity had been reduced to reason and lost its distinctiveness. The critics of rationalism sought to restore the role of emotion and the personal experience of salvation to the Christian life. Evangelicals and Methodists John Wesley

John Wesley (1703–91), the founder of Methodism, was among those who began to reemphasize the religious experience of salvation and the need for a life transformed by Christ. As a student at Oxford, Wesley and others had founded a ‘Holy Club’ whose members engaged in a disciplined method for spiritual life including prayer, fasting, and good works. In 1735, he traveled to the American colony of Georgia as a missionary, but was disappointed in his efforts to gain converts. On ship he had met some of the Moravian pietists, and was impressed by their confidence in God’s salvation; upon his return to England, he had an experience of God’s grace and mercy that gave him personal assurance of salvation and led him to begin preaching to outdoor revival meetings. The Church of England was unhappy with his independent style and theology, and Wesley’s failure to accept its authority ultimately led to the separation of the Methodists from the Church of England. Though Wesley believed like other Protestants that one is saved only by faith and not by works, he empha­ sized the importance of works as part of the process of sanctification by which Christians are made holy and pleasing to God. He went so far as to claim that Christians can achieve ‘perfection,’ not in the sense that they can avoid mistakes or have perfect knowledge, but in the sense that they can avoid all intentional outward sins. His moral beliefs were demanding, shaped by Puritanism, but against the Calvinists he held that we are not pre­ destined but free to accept or reject God’s grace as individuals. We choose whether we will accept salvation and live by the demands that follow from it. Wesley campaigned against many social ills including alcohol sale and consumption, war, slavery, and poverty. Salvation was a matter of both internal experience and external behavior for Wesley, so he felt it necessary to condemn what he viewed as the sinful exploitation of the poor by the rich in English society. Methodism has con­ tinued to emphasize temperance, human rights, and the need to ‘‘feed the hungry and clothe the naked.’’ Jonathan Edwards

A revival of emotional religion also occurred in America, where it took the form of a growing ‘Evangelical’ move­ ment that emphasized the need to accept the ‘good news’

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(Greek, evangel) of Christ’s gift of salvation by a personal conversion experience. The ‘Great Awakening’ refers to a time in the eighteenth century when these ideas began to have significant influence. The most significant theolo­ gian of the Great Awakening was Jonathan Edwards (1703–58). Edwards was influenced by Puritanism as well as rationalistic philosophy in the construction of his own theology, which was an effective synthesis of numerous ideas. Edwards claimed that emotions and will (the ‘affec­ tions’) are the root of action, but it is God who determines whether we are ruled by the true emotions of love of God and neighbor. We always choose what appears to us to be good, but a sinful person can choose only what is good for himself; with God’s help, however, we can be enabled to see and choose the universal good of all. Love of God must come first, and from that comes love of the world and all that is in it. Edwards claimed (with rationalism) that it is in our nature to love God and others, but (with Calvinism) we can do this only through the power of God’s grace, which turns our will to him. Edwards also emphasized the Calvinist themes of God’s absolute sover­ eignty over our lives and the ethic of stewardship of God’s creation.

Protestant Liberalism ‘Protestant Liberalism’ refers to a movement that began in the nineteenth century, primarily in Germany, which sought to revise Christian doctrine so that it could be brought into harmony with modern science and philoso­ phy. In this aim they did not differ totally from the rationalists of a century earlier, but their revisions made a greater effort to preserve the essence of the tradition and not simply discard aspects that might seem outdated or irrelevant. Rather than abandon faith in Christ as redeemer from sin and sanctifier of Christian life, they reinterpreted these ideas to make sense in the modern world. Friedrich Schleiermacher The reputed founder of Protestant Liberalism is Friedrich Schleiermacher (1768–1834). In his view, Christian ethics (as well as doctrine) is based on Christian religious experi­ ence, specifically an experience of union with Christ as the redeemer. Christ redeems as the one who had perfect ‘God-consciousness,’ the one in whom all sin is overcome by a complete awareness of God as creator and redeemer, that upon which we ultimately depend. When we experi­ ence unity with Christ, our own sin-consciousness is overcome by God-consciousness, and it is in this that salvation consists. We are united with God through Christ, who has experienced complete unity with God.

Christian ethics, on this view, consists of describing the experience of Christians who live by the spirit of unity with Christ. Christians do not need laws to spell out what they ought to do, for they naturally do God’s will insofar as they live on the basis of their consciousness of God. This is not solely an individual effort, however, as it is the Church that expresses the communal experience of Godconsciousness in the world. In this sense, it is in the Church that Christians find the spirit of God at work.

Albrecht Ritschl Albrecht Ritschl (1822–89) developed the liberal emphasis on Christian experience by stressing its practical aspects. Christianity is not a matter of judgments of fact, as we can never know with certainty, for example, the ‘facts’ of the nature of God. Rather, Christianity concerns judgments of value – what we value as good or bad, what we choose to do – that is, ethics. In this sense theology is a practical matter and not a matter of philosophical speculation. Ritschl found the practical core of Christianity in Jesus’ idea of the Kingdom of God. He viewed this Kingdom as the moral ideal, a realm where God rules as Father and all human beings love one another, where every person is valued and respected. This ideal is what we should seek to actualize in the world by our own ethical efforts. Ritschl’s ethics were therefore societal in scope and not merely personal. In fact, he believed that Protestantism had emphasized the personal experience of redemption to such an extent that it had neglected the ethical concept of the Kingdom of God as the ideal we should all be striving toward.

Adolf Harnack Adolf Harnack (1851–1930) developed Ritschl’s theology through his efforts to simplify the ‘essence of Christianity’ to a few core ideas: the Kingdom of God, the unity of God with the human soul, and the commandment to love the neighbor. In Harnack’s view, the Kingdom is not to be found in the external political realm but within each person who has experienced unity with God in love. This love is then shared with others, and so ethics is once again the core of Christian life. Harnack claimed to be basing his views on the ethics of the historical Jesus rather than later church doctrine, which he felt had need­ lessly complicated Christianity – but his simplifications tended to interpret the ethics of Jesus as supportive of his own middle-class German values, and ignored the rather different historical context of Jesus. Protestant Liberals like Harnack identified Christianity with the social ethics of their own culture, and so lost much of the critical challenge of Christian ethics that earlier Protestants had found in the Bible.

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Christian Socialism and the Social Gospel Movement The Blumhardts and Swiss Socialism The potentially radical social ethic of Christianity was not lost on Johann Christoph Blumhardt (1805–80) or his son Christoph Friedrich Blumhardt (1842–1919), the reputed founders of Christian socialism in Switzerland. They argued that Christians are not to seek escape from the world but rather transform it, changing evil into good and conquering sin and death. This is to be accomplished in part through explicit political action (one of the Blumhardts even held political office) with the goal of achieving economic justice, understood along socialist lines. Like Ritschl, these Christian socialists emphasized the Kingdom of God as an ideal that should be brought into this world as Christians seek to improve the world and society for all. Walter Rauschenbusch and the American Social Gospel Many of the ideas of Christian socialism surfaced in the United States, taking the form of a so-called ‘Social Gospel’ movement that emphasized societal reform as a crucial aspect of the ‘good news’ to be brought to all people by Christians. Walter Rauschenbusch (1861–1918), the most significant thinker of this movement, claimed that both sin and salvation are to be understood in social and not just individual terms. He defined sin as the selfish neglect of others’ needs, and salvation as the turn from self to God and humanity. The ideal of salvation, expressed by the Kingdom of God, embodies the hope for an end to social injustice. Rauschenbusch was a great critic of industrial capitalism, and promoted the socialist ideal that the work­ ers should own the means of production and share in their profits. Nonetheless, he held that spiritual values precede and ground material values, so he did not accept the Marxist reduction of social good to economic good. Salvation was more than just material well-being to Rauschenbusch, but he still claimed that Christians can and ought to work to ‘Christianize’ the social order by working to end the exploitation of the poor by corporate industry. Rauschenbusch was optimistic about this possibi­ lity as he believed that social sin can be overcome by social progress, expressed in political and legislative changes.

Neo-Orthodoxy and Modern Protestant Theology With the coming of World War I, much of the optimism of Christian socialists, liberals, and Social Gospel advo­ cates seemed discredited. The world was not getting

better or closer to the Kingdom of God on earth; rather, it was getting worse, wracked by social chaos and destruc­ tion. Human sin could not be erased by social programs, for it was deep within human nature and continued to express itself in political and social evils. With the experi­ ence of the coming of Nazism and Fascism and World War I, this sense of the hopelessness of the human con­ dition was only intensified. Karl Barth Karl Barth (1886–1965), probably the most significant Protestant theologian of the twentieth century, was among the first to recognize the need for a new kind of theology. A Swiss Reformed minister, trained in liberal theology and exposed to Christian socialism, he was dis­ gusted when his German theology professors supported World War I. He believed that liberalism had equated the ethics of Christianity with the ethics of society, and so lacked any perspective from which to critique the society. What was needed was a theology that was biblically based which challenged society to return to Christian ethics. In the years following World War I, Barth’s ‘dialectical theology’ sought to do this by emphasizing the ‘infinite qualitative difference’ between humans and God, the sinfulness of humans, and the human need for redemp­ tion. Humans cannot save themselves, and liberals have been foolish to believe that society can be saved by human efforts; we must rely on God entirely. This was in part a return to the ideas of Luther and Calvin, but Barth was not a political conservative; he remained a socialist, com­ mitted to economic and political reforms. He felt, however, that these could be undertaken only with the understanding that God alone will bring the Kingdom, and we cannot expect our efforts to erase sin or overcome evil. With the coming of Nazism to Germany, Barth and other church leaders formed the ‘Confessing Church’ which declared that Christ was its Lord and not Adolf Hitler, and so they could sign no oath of allegiance to the Fuehrer (which the state was requiring). This group pro­ tested Nazi attempts to control the church, but they did not advocate any revolutionary action against the state. Barth revised his theology drastically in the 1930s when he came to believe that his ‘dialectical’ theology had failed to acknowledge the human potential for good. In his emphasis on human sinfulness, he had neglected to develop the idea that God’s grace can and does remake human nature so that we are free to do good and are in fact redeemed. The infinite difference between God and humans was overcome in Christ, who was both God and man and redeems our nature as such. Barth’s ethics in this later period were based on the notion that God’s revela­ tion is the standard for the truth, and Christ is its norm. Christ is perfect God and perfect human, and it is from

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Him that we are to learn what God wants us to do. This does not mean literalistic imitation of Jesus, however, but listening for God’s word to us in specific situations. Barth influenced a range of Protestant thinkers who came to be classed under the rubric of ‘neo-orthodoxy.’ This term refers to theology that sought to return to traditional Protestant themes (such as God’s sovereignty, human sin, and the need for God’s grace) while at the same time remaining relevant to the situation of the twentieth century. Traditional doctrines were revised, as they had been by liberals, but now the dominant tone echoed not optimistic idealism about human progress but realism about human sin. Dietrich Bonhoeffer Dietrich Bonhoeffer (1906–45) was a German Lutheran minister who became deeply critical of German society with the coming of Nazism. Though many Lutherans accepted Hitler, Bonhoeffer protested against Nazism and even became implicated in the plot to assassinate Hitler. He was imprisoned and executed before the end of the war, and is viewed as a modern Christian martyr. Bonhoeffer’s ethics were demanding, emphasizing that faith must include obedience to God’s commands which deal with life in the world. Bonhoeffer rejected the concept he called ‘‘cheap grace,’’ the idea that salvation is only a gift with no demands attached. While some Lutherans insisted that God’s grace requires nothing in response, Bonhoeffer argued that faith without obedience is not real faith. We must respond to the radical demands of the gospel with moral action, not passivity. These demands may involve self-sacrifice – in Bonhoeffer’s own case, he decided to return to Germany during the war to work against Nazism even though he knew he might not survive. Bonhoeffer’s ethics were also shaped by his sense that the world has been reconciled to God through Christ, and so is already redeemed. God took form in the world in Christ, which shows that the world matters to God – and this means it should matter to Christians, as Christ now takes form in the Church which expresses the love of Christ for the world. The Niebuhrs Two brothers, Reinhold Niebuhr (1892–1971) and H. Richard Niebuhr (1894–1962), were among the most influential of American neo-orthodox theologians and ethicists. H. Richard Niebuhr’s ethics stressed a responsi­ bility before God which values all things as God does. All things in the world are valuable, but only if understood as centered in a God who transcends and grounds the world’s values. Richard is also well-known for his five ‘types’ of how Christians can view their faith as opposed

to the culture (like Anabaptism), or as a part of the culture (like liberal Protestantism), but they may also view it as the completion of culture (as in Roman Catholic ethics), separated from culture (as in Luther’s ‘Two Kingdoms’ doctrine), or the transformer of culture (as in Puritanism). Niebuhr seems to favor the latter, part of his own Reformed church heritage. Reinhold Niebuhr was even more influential than his brother. For him, the Christian ethic is an impossible ideal that cannot be realized in this world. The pacifist who thinks he will follow Jesus simply by always responding to violence with love has ignored the fact that one cannot always choose a course of action that avoids violent con­ sequences. If one loves the aggressor by responding only with nonviolence, one fails to love the victims one allows the aggressor to harm. Sometimes, realism demands that force must be used to stop evil and protect the weak. This is particularly true of the political realm, which is based on power and not on love. Justice, not love, is the ideal that one should strive to achieve in the political realm – whether it is corrective justice, which protects the public by punishing criminals, or distributive justice, which apportions economic resources fairly, but not always purely equally. The Christian ideal of love, however, remains neces­ sary and relevant to life. One needs such an ideal to motivate political realism beyond a mere balance of com­ peting interests to a concern for all sides. Without love as the basis for ethics, morality degenerates into a selfish concern for one’s own survival or the survival of one’s group. Corrective justice must still protect the rights of the criminal and treat him humanely, and distributive justice must aid those who cannot earn a living. Thus love and justice must be balanced in ethics, just as ideal­ ism and realism must be balanced. Reinhold Niebuhr recognized, with Social Gospel advocates, that sin takes a social form in society – but he was not as optimistic as they about the possibility of eliminating social evil by policy and legislative change. Though sin is most virulent in its social forms, it is based in individuals’ anxiety about their own finitude and their need to assert their power to act freely. Sin is therefore a part of human nature that can never be erased no matter how society changes. This realism about sin motivated Niebuhr’s belief that the ideal of love can never be achieved, though this ideal remains crucial to construct­ ing an ethical society.

Paul Tillich Paul Tillich (1886–1965), a German theologian who moved to the United States in the 1930s, is not always classified as a neo-orthodox theologian, but he shares many of their tendencies. Tillich’s theology was eclectic,

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borrowing from neo-orthodoxy, liberalism, and existenti­ alism to develop his system. Tillich believed ethics should be ‘theonomous’ – that is, based on God’s law – but this theonomy must be a synthesis of autonomy (self-legislation) and heteronomy (legislation coming from another). God’s law is not simply a law imposed on us from outside by God, nor is it simply an internal ethic developed by ourselves; it combines and transcends both. Tillich also recognized that we can have no certainty regarding God’s will. We trust in something as our ‘ultimate concern,’ our God, but we can never know if our faith is directed toward the infinite or only toward a finite idol. If we claim that we know God’s will perfectly, we are failing to recognize the mystery and transcendence of God, making our own understanding of God into the idol we worship. True faith demands the humility that knows we are limited in our under­ standing and cannot claim to speak for God. Those who claim certainty in ethical matters may actually have a demonic faith, Tillich claimed, like the Nazis who regarded Hitler’s will as their ‘ultimate concern’ to which they were willing to sacrifice all other moral concerns. Like Reinhold Neibuhr, Tillich believed that power is a reality that cannot be ignored in ethical considerations – but he understood the relationship between love and justice in a somewhat different way. Tillich believed justice and love are not in opposition but merely in ‘dynamic tension’ with one another. Justice is the form love takes in society, and creative justice serves the ideal of love. Joseph Fletcher and Situation Ethics In the 1960s, Joseph Fletcher promoted a view he called ‘‘situation ethics,’’ which claimed that there are no ethical laws by which the Christian ought to make decisions, only the norm of love. One must evaluate the right thing to do in each situation as it appears by weighing various courses of action and deciding which will demonstrate the most love for all persons concerned. Fletcher distinguished his ‘situationism’ from both ‘legalism’ (which blindly follows traditional moral laws regardless of consequences) and ‘antinomianism’ (which makes arbitrary decisions without reference to general principles or laws). Situation ethics allows one, for example, to justify a lie that saves a life, or even kill to save multiple lives, because such an action results in greater love. Fletcher’s view was not entirely novel, but it drew much attention and controversy. Some ethicists such as Paul Ramsey argued that though love is the primary ground of Christian morality, it is expressed in rules that precede situations. Christians are guided not merely by their own intuitions of what is loving in a given situa­ tion, but also by the rules and laws of the Christian

tradition that are shaped by love. Most ethicists felt that Fletcher had oversimplified the process of moral decision making, but his views may have gained popularity pre­ cisely for that reason – as well as by the fact that they sanctioned personal judgment in an era that was ques­ tioning all authority.

Liberation Theology In the past few decades theology has devoted increasing concern to those who are the victims of political or economic oppression. ‘Liberation theology’ refers to theologies which proclaim that salvation involves a total liberation involving political, economic, as well as spiri­ tual freedom. The gospel demands an end to oppression and a recognition of the exploitation of the poor, women, and minorities. Liberation theology is similar to the Social Gospel movement in these aspects, but it is more radical in its demands for societal change and in its use of Marxist and feminist social criticism. Though largely a Roman Catholic phenomenon, liberation theology has also taken Protestant forms. Third World Theology Theologians in South and Central America, Africa, and Asia have begun to recognize the heritage of colonialism in these areas and the profound influence it had on the shape of Christianity there. Imported with the oppressors, Christianity often sanctioned their actions and promoted meek passivity on the part of the oppressed. Now many Christians in these areas are rejecting this view, claiming that God actually exercises a ‘preferential option for the poor,’ those who suffer under oppressive regimes and economies. They draw on Old Testament traditions of the nation of Israel as a people of slaves freed by God, and view Jesus as one who desired to end political oppression. Liberation theology takes Protestant forms most often in countries such as South Africa which were colonized by Protestants. African American Theology The most productive area for Protestant liberation theol­ ogy has been the African American community. Shaped by a long history of Christianity, black Americans began to question the subservience encouraged by the church in the 1950s with the dawning of the civil rights movement. The most important figure in this development was Martin Luther King, Jr. (1929–65), a Baptist minister who organized a boycott of segregated buses in Montgomery, Alabama, and went on from there to become the national leader of the black civil rights move­ ment. He argued that the oppressors could be overcome

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by nonviolent protest of the sort that Gandhi had used in India because Christian love has the power to end vio­ lence, whereas violence (in this case) will only beget more violence. King had recognized the political effectiveness of nonviolent protest methods, and so was balancing rea­ lism with idealism as Reinhold Niebuhr did in his ethics. King was killed before the term ‘liberation theology’ came into use, but his emphasis on the need for liberation from social oppression inspired later African American theology. The chief difference between King and later black theologians such as James Cone is that the latter are more radical in their social analysis and more prepared to accept the possible use of violence to achieve the just end of liberation. Echoing Third World theologies, Cone argues that to reject the possibility of violence on the side of the oppressed is to implicitly support the violence of the oppressor. He also focuses more on developing a theology for black people than achieving the goal of racial integration which was so crucial to King’s vision. In sum, black theology after King has been more critical of white America’s racism and less optimistic about achieving jus­ tice without radical methods. Feminist Theology Like Third World liberation theology, feminist theology has been shaped most significantly by Roman Catholics (in particular, Rosemary Ruether), but Protestant fem­ inist theologians exist as well. Feminist theology focuses on the exploitation of women and the need of the Church to reform itself in nonsexist ways. In the feminist view, everything from the male gender of the deity to the exclusion of women from church leadership echoes the heritage of sexism in Christianity, as women have been scapegoated as the source of evil and subordinated to males who are viewed as rightfully dominant over them. Feminists reinterpret the Bible in ways that seek to purge it of sexism, appealing to its message of libera­ tion to all who are oppressed, including women. Some feminists have rejected Christianity altogether, turning to worship of a goddess figure, but Christian feminists try to reform the tradition in ways that preserve its essence and make it meaningful as a way of liberation for women.

founded for this purpose, held conferences in Stockholm (1925) and Oxford (1937) that developed statements urging the unity of Christians in their ethical goals. The Oxford conference reflected the ideas of participants such as Karl Barth and Reinhold Niebuhr that both love and justice are necessary goals to work toward, and that Christians must be realistic enough to acknowledge that they cannot create God’s Kingdom through their efforts on earth. The conference also criticized both communism and capitalism as inadequate ways of addressing humans’ needs. The Oxford conference led to the formation of the World Council of Churches (WCC), which first met in Amsterdam in 1948. The WCC has continued to draft ethical policy statements, dealing with a range of issues including nuclear arms reduction, environmental pro­ blems, and Third World rights. The goal of a ‘‘just, participatory, and sustainable society’’ was developed as a way of expressing the need to safeguard not only human justice and freedom but natural resources and environ­ mental balance as well.

Conclusions Protestant ethics contains diverse strains that cannot be easily harmonized or glossed over to present a unity. As Protestantism has evolved over the past 500 years, it has included some who wanted to abandon society, and some who wished to change it; some who focused on works as the core of Christian faith, and some who spoke little about morality. It has included liberals and moderates, conservatives and radicals. Protestants are today sharply divided on issues such as abortion and homosexual rights, even as they were once divided about slavery and women’s suffrage. There will probably never be complete unity among Protestants on ethical matters, but all have claimed the Bible and the Protestant tradition as their authority, and all have sought to do the will of God as they understood it. See also: Religion and Ethics.

Further Reading Ecumenical Dialogue A movement began early in the twentieth century to unify Christians across denominational lines, so constructing an ‘ecumenical’ (worldwide) Christian com­ munity. The movement was shaped most significantly by Protestants steeped in the Social Gospel movement who wanted to bring Christians together to work for peace and justice worldwide. The ‘Life and Work’ movement,

Beach W and Niebuhr HR (eds.) (1955) Christian Ethics: Sources of the Living Tradition. New York: Ronald Press. Forell GW (ed.) (1966) Christian Social Teachings: A Reader in Christian Social Ethics from the Bible to the Present. New York: Doubleday. Gustafson JM (1978) Protestant and Roman Catholic Ethics: Prospects for Rapprochement. Chicago: University of Chicago Press. Keeling M (1990) The Foundations of Christian Ethics. Edinburgh, UK: Clark. Long EL, Jr (1967) A Survey of Christian Ethics. New York: Oxford University Press.

434 Christian Ethics, Protestant Long EL, Jr (1982) A Survey of Recent Christian Ethics. New York: Oxford University Press. McGrath A (1988) Reformation Thought: An Introduction. New York: Blackwell. Reardon BMG (1995) Religious Thought in the Reformation, 2nd edn. New York: Longman.

Wogaman JP (1993) Christian Ethics: A Historical Introduction. Louisville, KY: Westminster/John Knox Press. Wogaman JP and Strong D (eds.) (1996) Readings in Christian Ethics: A Historical Sourcebook. Louisville, KY: Westminster/John Knox Press.

Christian Ethics, Roman Catholic D A Jones, St. Mary’s University College, Twickenham, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Conscience The ability to make considered judgments recognizing the moral quality of an action. Conscience needs to be informed so as to aim at the true human good. Council A gathering of bishops to reform and renew the Church. An ‘ecumenical council’ (e.g., Lateran IV or Vatican II) is composed of bishops from throughout the world, called by or recognized by the Pope (the bishop of Rome), and has authority to settle matters of Catholic doctrine. Double effect The principle that it is sometimes acceptable to do something that has foreseeable bad effects, where the act itself is good and the bad effects are not intended. Grace God’s presence within the person, inspiring a spiritual life from which good actions flow. Grace is an undeserved expression of God’s mercy and was brought to humanity by Jesus Christ (although it was also present before this in anticipation of his coming). Encyclical A letter from the Pope to all Christians, frequently also addressed to all men and women of good will.

Introduction Within the Roman Catholic tradition, the study of ethics is usually termed ‘moral theology’ rather than ‘Catholic ethics.’ This partly reflects the influence of Latin words (mores, moral) rather than Greek words (ethos, ethics) in Roman Catholicism, but it also touches on a deeper question: Should Christian reflection on what the human person should be and do be understood primarily as a branch of ethics (Christian ethics) or primarily as a branch of theology (moral theology)? Moral theology, like moral philosophy, is a search for those approaches, norms, character traits, and choices that enable people to live well individually and together. However, as a species of Catholic theology, it engages in that task by reflecting upon God’s express will for human­ ity. This is found not only in the ‘natural law’ available to all but also in the revealed ‘Word of God’ and the inner promptings of grace. Moral theology aims to provide a guide to a life that befits human nature, responds to the divine calling, and

Intention The aim or rationale of an action, the reason implicit in it. Intention is not a mere desire accompanying the action because an action can be intended though unwanted. Just war The justified use of lethal means by a legitimate authority to oppose a great evil that cannot be opposed effectively by any other means. Magisterium The living authority within Catholic tradition expressed through office-holders of the Church such as popes, councils, and Vatican congregations (departments assisting the Pope). This authority does not create Catholic doctrine (which is based on ‘the Word of God’ – that is, the revelation of Jesus Christ in Scripture and Tradition), but it determines the authentic interpretation of doctrine. Natural law Those rights and responsibilities human beings have as the result of their nature and which they can discover through the use of their natural reason. Probabilism The doctrine that Catholics are free to choose to follow a moral opinion if the opinion is defended by a moral theologian in good standing or by a defensible argument and it has not been condemned by the Magisterium.

prepares people for eternal life in God’s family. It seeks to educate conscience, shape virtues, and make possible wise decisions in particular cases. Catholics believe the Church has a special function in proclaiming the gospel of Jesus Christ to every generation, interpreting it afresh and authoritatively in the light of the signs of the times. An understanding of Catholic moral theology will therefore include discussion of authority and a presentation of the sources that are authoritative within this tradition.

Historical Overview of Catholic Moral Theology Jesus, Judaism, and Paul The Catholic Church is the community gathered by Jesus, beginning with his first followers. Although the gospel is a message for all peoples, Jesus and the first disciples were Jews. An adequate understanding of Jesus and of the moral theology of the early church thus

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requires attention to the Jewish Scriptures, the Old Testament. Christians share with Jews the great commandment to love, expanded upon in the Ten Commandments, which lays the foundations for the daily life of the human person (the decalogue occurs twice in Scripture in slightly differ­ ent forms and this explains its different enumeration among Christians, with Reformed Christians using the list from Exodus and Catholics following Deuteronomy). The divine law (‘Torah’) was elaborated in great detail in the Scriptures and the Jewish exegetical and teaching tradition, with specific regulations touching upon all areas of human life, including worship, sex, marriage, family life, agriculture, trade, property, rest, and social and political responsibility. Morality is also presented through stories and histories (e.g., the disobedience of Adam and Eve, the fidelity of Abraham, the courage of Daniel and Esther, the prudence of Solomon, and the chastity of Susanna), in proverbial wisdom and song, and through prophetic utterances. The prophets commonly focused their critical gaze upon ido­ latry of various kinds – not just of foreign gods, but of wealth, power, and privilege. They preached hesed (love or mercy) and sedekah (justice or righteousness), which included harmonious community life, distributive justice, honesty, and fair dealing. Jesus was a prophet in this tradition. The New Testament shows the moral teaching of Jesus both in sermons (e.g., the Sermon on the Mount) and in parables (e.g., the ‘prodigal son’) and also in actions such as healing on the Sabbath and evicting the money-changers from the temple. For believers, Jesus was more than a prophet. He not only was a teacher and a good example but also was and is the Word of God, the promised savior who brought reconciliation for the whole world through his death and resurrection. Thus, the letters of Paul urge Christians not only to imitate the virtues shown by Jesus but also to live as people who have been ‘saved,’ sinners who have been reconciled to God by grace through Christ. The Patristic Period In the Patristic period (roughly the first 1000 years of Christian history), moral topics were rarely treated in separate works of their own in a systematic manner. They were much more frequently treated as part of pastoral works such as sermons, Scriptural exegesis, mon­ astic rules, and general theological works such as The City of God by Augustine of Hippo (CE 354–430). One specific moral work of Augustine worthy of men­ tion is On the Good of Marriage. This was a defense of Christian marriage at a time when there was great enthu­ siasm among Christians for the unmarried state (consecrated celibacy or virginity). Augustine’s three goods of marriage – ‘faithfulness, children, and the

sacramental bond’ – shape Catholic thought up to the present day. In general, the Christian moral writings of the first half of the first millennium used the Scriptures and Christian experience to develop the language and categories of moral theology. For example, the three highest gifts named in Paul’s letters – ‘faith, hope, and love’ – were added to the classical philosophical list of virtues – ‘jus­ tice, temperateness, courage, and practical wisdom’ – to create a list of seven virtues: four cardinal virtues and three theological virtues. At approximately the same time, the desert fathers set out a list of common temptations: pride, anger, lust, glut­ tony, envy, avarice, and sloth (although this last described a kind of spiritual restlessness rather than a physical laziness). The seven deadly sins do not correspond neatly to the seven virtues and neither relates easily to the Scriptural Ten Commandments, but all three lists were in common use to guide Christian moral reflection. One problem faced early on by the Church was how to deal with sins committed by Christians after baptism. In the second and third century, most Christians were bap­ tized as adults, and this symbolized a radical change of life. Nevertheless, Christians did not remain sinless, and some of these sins were public and scandalous – sins such as murder, adultery, or denial of the faith (e.g., in times of persecution). To address the need to maintain Church order and doctrine while providing a means of forgiveness, the Church gradually developed two parallel systems: one public and codified as ‘canon law’ and the other private and pastoral involving confession to a priest. The practice of private oracular confession was associated with mon­ asticism especially in Northern Europe, and the second half of the first millennium saw the writing of several Celtic and Anglo-Saxon ‘penitentials’ – books of guidance for confessors. Lateran IV, the Friar, and the Manuals Moral theology came to be understood as a distinct dis­ cipline in the Middle Ages, particularly following the Fourth Lateran Council (CE 1215). This great gathering of the Church hoped to promote a revival of pastoral care for the spiritual needs of ordinary Christians. The Council both expressed and facilitated the reform movement that gave rise to the preaching friars: the Dominicans, Franciscans, Carmelites, and others. The reforms of Lateran IV included mandatory preaching in all churches and chapels and the promotion of the systematic study of theology. Most significant for moral theology, the practice of regular confession was buttressed by law: Every Catholic over the age of reason was required to confess his or her sins privately to a priest at least once a year. This universal requirement had a

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great impact on the shape of the emerging discipline of moral theology. The work of hearing these confessions created a need for practical textbooks or manuals to inform and support confessors in their work. The confessor was not only a dispenser of forgiveness but also a guide and even a judge. He had to give reliable advice about which acts were and which were not sinful. At the same time, there were other intellectual and cultural influences shaping moral theology. The Universities of Oxford, Cambridge, Paris, and Bologna were being founded at approximately the same time as Lateran IV, and they created a very systematic ‘scholastic’ approach to the study of all disciplines. There was a flourishing interest in logic and in law, especially canon law. In the wake of Lateran IV, moral theology thus tended to be legalistic. There was also a fashion for books of ‘cases’ giving particular examples of moral problems. These cases were resolved not only using laws and principles but also using analogy with other similar cases. This method of moral reflection by case study was called casuistry. Another element in the intellectual mix of the Middle Ages was the rediscovery of the works of Aristotle. His thought was taken up by many Christian theologians, the most significant being Thomas Aquinas (1225–74), a Dominican friar. Aquinas’s most famous work, the Summa Theologiae, was not just a list of sins, laws, and cases but, rather, an account of the origin and destiny of the human person and the nature of human flourishing. Thomas Aquinas drew on Aristotle and Augustine to produce a powerful synthesis. He remains the most significant figure in Catholic moral theology, important for the development of ideas of natural law, virtue, and just war and in many other areas. Nevertheless, although he was influential on many particular topics, he did not shift the fundamental character of moral theology in the Middle Ages. It was still closely associated with canon law, confession, and the identification of sins. Trent, the Society of Jesus, and Probabilism An important shift in moral theology occurred around the time of the Council of Trent (1545–63). Like Lateran IV, Trent was also a council concerned with the spiritual and intellectual formation of priests and the pastoral care of ordinary Christians. It was concerned to combat what was seen as the heresy of Protestantism, but it was also concerned with renewing Catholic theology and practice. Trent was significant in part for condemning the doc­ trine of the ‘total depravity’ of human nature, as expressed by some Protestant Reformers. This left many Catholic theologians keen to emphasize that human beings retain free will, even after the fall of Adam, and retain a natural knowledge of the commandments. Trent thus reinforced

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the idea of natural law and effectively encouraged a further separation of morality from Scripture and Christian doctrine. Perhaps the most significant influence of Trent on moral theology was through the work of a new religious order, the Society of Jesus or ‘Jesuits.’ The plan of studies of the Jesuits became the model for studies within the newly established seminaries for the training of priests. In this plan, the study of moral theology remained primarily concerned with sin and law. However, it also introduced a new theme – a detailed study of the liberty of conscience. The question for moral theology became the following: How much freedom is there from the requirements of law before one falls into sin? In this context, casuistry flourished, but there was increasingly bitter controversy regarding the resolution of particular moral questions. Those who emphasized freedom rather than the danger of sin were termed ‘lax­ ists,’ whereas those who emphasized the danger of sin rather than freedom were termed ‘rigorists.’ Laxism was associated with the Jesuits, whereas rigorism was asso­ ciated with a puritan form of Catholicism called Jansenism. The most famous Jansenist was the philoso­ pher Blaise Pascal (1623–62). During the seventeenth century, both laxism and Jansenism were condemned by the Pope, although both retained some influence. In an effort to find a middle way between these extremes, theologians developed the principle of proba­ bilism. This allowed people the freedom to follow any opinion that was ‘probable’ – which meant that it was supported by some authority or argument and it had not been explicitly condemned by a pope. However, some theologians opposed this principle and said that people were bound to follow the most probable opinion. This view was termed ‘probabiliorism.’ The dispute between probabilists and probabiliorists raged for nearly 200 years before Alphonsus Liguori (1696–1787) devised a form of probabilism that satisfied most theologians. During this period, moral theology was fractured by a series of heated and seemingly intractable disputes. Whereas Catholic spiritual writers of the time urged people to be generous in response to the call of God, moral theologians argued about the limits of the law and the bare minimum that would excuse from sin. By the mid-twentieth century, there was a widespread view among Catholics that moral theology was in need of renewal.

Vatican II, Humanae Vitae, Revisionism, and Renewal The Second Vatican Council (1962–65) aimed to renew the church in the context of the modern world. It was focused less on the clergy and more directly on the laity and on the

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wider world. Vatican II urged Catholics to dialogue with other Christians and even with non-Christians. It empha­ sized the need to be aware of experiential reality and not just written doctrines. The Council both expressed and inspired the progressive spirit of the 1960s. Against this background, people came to expect a development in the Church’s teaching on moral theology and, in particular, on sexual ethics. Contraception had always been prohibited by Catholic moral theology, but in the 1960s the contraceptive pill was received by the wider world as a great advance and as a liberation for women. A commission of lay experts, set up to advise the Pope, favored a change in the teaching. Change seemed inevitable, but the Pope resisted this, and in 1968 in Humanae Vitae, he reiterated the Catholic Church’s tradi­ tional condemnation of contraception. There was massive fallout from this encyclical, with many theologians and most lay Catholics failing to accept the teaching. It created a kind of fault line within Catholic moral theology between revisionist and traditional theo­ logians. Nevertheless, between these two groups there was agreement on the need to renew moral theology. Whether theologians wished to put forward new conclu­ sions or whether they wished to find new ways to make sense of old conclusions, there was widespread agreement that the state of moral theology pre-Vatican II had been shown wanting. Among revisionist attempts to renew moral theology, the two most prominent were the ‘fundamental option’ and proportionalism. The fundamental option theory was proposed by writers such as Karl Rahner, Bernard Ha¨ring, and Charles Curran. It maintained that people could do objectively harmful acts that were nevertheless excused by the subjective orientation of the person at a fundamental level toward God and the human good. The proportion­ alist school (Joseph Fuchs, Richard McCormick, Bernard Hoose, and others) was not subjectivist in this way but relied on a weighing of objective human goods. Nevertheless, proportionalism was revisionist in that it allowed consequences sometimes to ‘outweigh’ traditional moral prohibitions. Neither the fundamental option nor proportionalism was completely novel in the Catholic tradition, but both suffered from similar problems to the laxist moral theology of an earlier age. It was no surprise when both schools were condemned by Pope John Paul II in his 1993 encyclical Veritatis Splendor. The watershed created by Vatican II and Humanae Vitae also facilitated the rise of schools of moral theology that sought to be faithful to the tradition. In Englishspeaking countries, there was a development of a new natural law theory, associated in particular with Germain Grisez and John Finnis. The starting point for this theory was the thought of Thomas Aquinas, but the theory responded to the philosophical challenge of David

Hume and Immanuel Kant and moved some distance from the positions of Thomas Aquinas. A very different school from continental Europe drew on the ‘phenomenological’ method of Edmund Husserl. Two prominent advocates of this were Edith Stein, a Carmelite nun and convert from Judaism who died in Auschwitz, and John Paul II. John Paul II has also been one of those theologians responding to the call of Vatican II for a more Scriptural approach to moral theology. This is seen in a number of his works but in particular in the Theology of the Body (weekly Wednesday audiences, 1979–84) and in the encyclicals Veritatis Splendor and Evangelium Vitae. The moral theology of Benedict XVI (e.g., in Caritas in Veritate) builds upon that of John Paul II.

Fundamental Concepts in Moral Theology Happiness In 1930, C. D. Broad put forward the influential claim that ethical theories are divided between those that consider obligation to be fundamental (deontological) and those that consider consequences to be fundamental (teleologi­ cal). The first kind of theory was exemplified by Kant, and the second was exemplified by utilitarians such as Sidgwick. It is important to note that when Broad put forward this dichotomy, he did not consider ancient moral philosophers (e.g., Aristotle) nor Catholic moral theolo­ gians (e.g., Augustine). Among Catholic moral theologians, moral action is considered to be nothing more or less than human action understood in its totality. The proper aim of human action is happiness. Augustine agreed with his pagan contemporaries that the only purpose in philosophizing is to attain happiness through possession of the supreme human good (summum bonum). Thus, Catholic moral theol­ ogy is profoundly ‘teleological’ in that it is shaped by consideration of the final end (telos) of human life. Nevertheless, this ultimate end is not constituted by the aggregation of good ‘consequences’ whether for the body or the mind or both. Happiness (also termed beatitude or human flourishing or integral human fulfillment) is ultimately found through friendship with God and the enjoyment of communion with God and the saints in the life of the world to come. This supreme good will include all the goods of human life – bodily, intellectual, social, and spiritual – in their proper order. Nevertheless, in the circumstances of this life, the ultimate attainment of happiness will require sacrifice. Freedom Freedom is a presupposition of human action. When considering what to do and what not to do, we presuppose that we could, if we chose, do something else. If there is no

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possibility of choosing something else, then the choice seems trivial or unreal. Human freedom may be compro­ mised by external or internal constraint or compulsion, but intentional human action always retains some level of freedom. In political terms, freedom is often seen as freedom from external constraint and hence external intervention. Freedom is sometimes also seen in contrast to authority or law. If freedom is understood in relation to the maximum scope of human actions, both fulfilling and destructive, then law will sometimes contradict freedom. Nevertheless, there is another sense of freedom that is not freedom from constraint but freedom for human flourishing. Catholic moral theology uses this sense of freedom as freedom to act responsibly in accordance to the human good. This freedom is not in tension with the moral truth of the situation – the inherent constraints of virtue, nat­ ural law, or moral obligation – but includes these as elements of the free decision. Freedom is not only present in the choice between good and bad actions because there will generally be a number of good actions that a person might choose to do. Intention Intention is a key concept for Catholic moral theology. The intention of an action is the rationale of an action. Two actions that seem superficially similar may be dif­ ferent actions because they embody different intentions. Signing one’s name may be a means to pay a bill, or a communication of feelings, or may be done to test whether a pen is working. In most cases, the aim and intention will be obvious because of the circumstances, but on some occasions it will not be immediately evident. Closely related to intention is the principle of double effect. This states that effects that should never be caused intentionally may sometimes be accepted as a side effect of action. Actions such as adultery, killing the innocent, or denying the faith must never be done intentionally. However, the principle of double effect allows that my actions may lead to the death of an innocent person, if this is not my intention and if the good and bad effects are proportionate. For example, a life-saving drug might cause a fatal reaction in a small percentage of patients: This does not mean it can never be prescribed.

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example, for Aristotle the virtues were acquired gradually by practice and laid down by long education, and there was little a person in middle age could do to radically change his orientation. In contrast, the Christian virtues are given by God as a grace so that a radical conversion of character is always possible. The virtues enable human flourishing. A Christian account of the virtues thus differs in some respects from the account given by Aristotle because the understanding of human flourishing is different. Hence, for Aristotle pride is a virtue and a characteristic of the successful self-made man. In contrast, the Christian sees pride as an obstacle to right relationship with God and solidarity with others. Pride goes before a fall. There has been a recent revival of emphasis on the virtues within moral philosophy, in part because of the influence of Catholic philosophers G. E. M. Anscombe, Peter Geach, and Alasdair MacIntyre. There has also been a revival of emphasis on the virtues within moral theology. This has led to a renewed appreciation of Thomas Aquinas as a virtue theorist. Natural Law The phrase ‘natural law’ refers to human responsibilities that are accessible to anyone who reflects upon the struc­ ture of human choice and the nature of the human person in community. This is the basis of the ‘common morality’ shared by all people of good will and of notions such as universal human rights. It does not depend on any special revelation from God. Although moral truths are accessible in principle, some questions are subtle and require wisdom and experience to determine what is best to do. Furthermore, even ques­ tions that should be relatively straightforward can become obscure to people because of the distortion of cultural, societal, or emotional factors. Recent controversy regarding sexual ethics has asso­ ciated ‘natural law’ theory with action in accordance to the natural function of parts of the body. Indeed, some theologians before Vatican II did invoke this kind of simplistic ‘physicalist’ argument against contraception. Nevertheless, physical healthy functioning is only part of the moral story and is not the best starting point for understanding the natural law tradition dating back to Aquinas. The revival of natural law thinking by Germain Grisez and others has focused not on the body but on the goods implicit in human choice.

Virtue Being good or holy is not a matter only of actions but also of the dispositions that shape and are shaped by those actions. Aristotle termed these good dispositions of char­ acter ‘virtues,’ and moral theologians adopted this language, though giving it a Christian meaning. For

Casuistry Casuistry is a method in moral theology for resolving particular moral problems. It works by comparing diffi­ cult problems with easier or well-known cases and then exploring analogies and contrasts. It functions best when a

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problem can be related to two or more cases that pull in opposite directions. Consider, for example, the difficult case of separating conjoined twins. Traditional natural law principles pro­ hibit killing one child to save two (e.g., taking the first child’s organs), but they would allow a person to save one child and leave a second to die when it was not possible to save both. The problem becomes, How similar is separ­ ating the twins to ‘killing one for the sake of the other’? How similar is it to ‘saving one when you cannot save both’? Determining which analogy is more applicable may well depend on the details of the medical condition, the nature of the operation, and other particular circumstances. Casuistry is not an exact science but is a method to help people decide difficult cases. It is not a substitute for principles or for virtue, but it relies on knowledge of the principles of the natural law exemplified in well-known cases. It requires a person with the virtue of prudence and other good dispositions of character to apply the method. Without a firm foundation in principle and virtue, it is a method that can be abused. Nevertheless, in good hands it is a useful method of moral reflection and has had a revival in recent years in bioethics.

Conscience Conscience refers to the ability to make considered moral judgments, to recognize and apply the natural law in practice. Discussion of conscience is often concerned with a person’s responsibilities to act morally in the face of external pressure to do otherwise. For example, a civil servant may feel pressure to keep quiet about government wrongdoing, but his conscience may be clear that the public interest demands he discloses the facts, even at the risk of his own job. In such circum­ stances, a person should follow his or her best judgment of what is right to do. Similarly, in the face of pressure to conform, it is admirable that some people ‘conscientiously object’ to doing what they regard as wrong in the life-or­ death circumstances of war or medicine. Nevertheless, the understanding of conscience in Catholic moral theol­ ogy is not something purely subjective. Conscience is sometimes described as an ‘inner voice’ that guides actions, but this can be misleading. It is not an infallible inner oracle but, rather, a grasp of the natural law informed by experience, virtue, reflection, argument, and good advice. If a person makes a mistake despite efforts to inform his or her conscience, then this is excusable. However, ignorance is not always an excuse, and someone who does harm with ‘good inten­ tions’ may be guilty because of neglecting to inform his conscience.

Sin and Grace Moral theology considers bad or harmful actions not only from the perspective of human flourishing but also as sins – that is, as causes and symptoms of alienation from God. This alienation is a universal feature of human experience, and the book of Genesis traces it to the very origin of the human race. This ‘original sin,’ as it is called, results in an internal disintegration of reasons and the passions, a tendency to selfishness and other vices, and has an influence that runs through culture and society. Actual sins are a symptom of original sin and can foster the ‘structures of sin’ that perpetuate injustice and human alienation. If actual sins are seriously harmful and done deliberately, they cause a spiritual death of the soul (mortal sin). A person who dies in mortal sin has condemned himself to hell. The good news of the gospel is that all sins can be forgiven, if forgiveness is accepted, and the consequences of sin can be redeemed. This cannot be achieved by human effort, but it is achieved by grace, the gift of God, through the life, death, and resurrection of Jesus Christ. The unjust torture and death of Jesus on the cross shows that sin has terrible consequences and that redemption is won at great cost. Nevertheless, the mes­ sage of the resurrection is one of hope – that moral resurrection is possible not through our own power but through a higher power. Vocation Human action is free in the sense that there are many possible ways to live the good life. Moral dilemmas are sometimes presented artificially as a choice with only two possible alternatives, but in general there is an indefinite number of paths someone might take and many possible good and bad actions along those paths. Moral theology considers not only individual actions but also the whole course of a person’s life, as this is shaped by his or her choices and commitments. Although these choices are genuinely free, they are also responses to opportunities and particular tasks that are given to each person by God. For each person, there is a particular path in life that God is calling him or her to follow. The word vocation is associated particularly with a calling to serve as a priest or a religious brother or sister, and with professions such as teaching and nursing, but these are only particular examples of a universal feature of human life. It is not easy to discern what role one is called to or how one can best live out one’s life, and every life con­ tains surprises, twists, and turns along the path. These also are known to God and are elements of the life the person is called to lead. To live life with a sense of vocation from

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God requires the virtue of hope and also an attentiveness to the promptings of God as these come through experience. Authority Because conscience needs to be informed, we should seek the advice of wise friends and those who have reflected on the moral life. As there is knowledge and expertise in other fields, so there is knowledge and expertise in moral theology. Nevertheless, moral expertise is more difficult to identify, especially where there are many competing voices giving different advice. Catholic teach­ ing on original sin should also lead people to be cautious both about their own ability to rationalize and about the flawed standards of conventional society. It is for this reason that God has provided a source of guidance that is more reliable than unaided reason reflecting on experience. The source of this authority is the Word of God, which is present in the Scriptures as these are understood in the Catholic Tradition. Occasionally, the Catholic Church makes public its faith in statements from popes, councils, and Vatican congre­ gations (departments assisting the Pope). This is called the Church’s teaching office or ‘Magisterium.’ It does not create Catholic doctrine, but it determines the authentic interpretation of doctrine. It is important to note that not every statement of a pope or a congregation carries the same weight of authority, and some require careful interpretation. Catholic moral theology draws upon both reason and authoritative sources. These sources do not provide a list of answers for every moral question but, rather, reinforce the principles of the natural law and also reveal the realities of sin, grace, vocation, and the theological virtues that are essential to the moral life.

Issues in Moral Theology Bioethics Bioethics is moral reflection on medicine and human biology (agricultural biotechnology is considered later). The two classic ethical questions of medicine have been termination of pregnancy and assisted suicide, both already evident in the ancient Hippocratic Oath. These issues are predominantly matters for the natural law, but they raise strong passions and have been subject to widely different cultural views. This shows the need for author­ itative guidance. On these two issues, the Christian Church has been consistent from the earliest time. In contrast to pagan society, the Church opposed both abortion and suicide (and hence euthanasia), and it sought to bring hope to the situations that led people to these actions. Hence, the

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Church created institutions to care for abandoned chil­ dren and to care for the dying. The principle of the inviolability of human life was not separated from the mandate to care for those who had need. This approach has been termed the ‘seamless garment’ or the ‘consistent pro-life ethic.’ In recent years, the ethical issues in medicine have been complicated both by great technological advances and by social demands for greater individual autonomy. In the 1950s, Pope Pius XII showed a great interest in this emerging area, helping to clarify issues of organ trans­ plantation as well as the understanding of when treatment could legitimately be withdrawn from a dying patient. The Magisterium has continued to pronounce on ques­ tions of bioethics – for example, ruling that embryonic stem cell research is morally unacceptable because it involves the intentional killing of embryonic human beings. The technique of in vitro fertilization (IVF) is proble­ matic because it typically involves discarding unwanted ‘spare’ embryos. Furthermore, IVF separates fertilization from the sexual union of husband and wife, and it may also involve absent biological parents who ‘donate’ gametes. These issues require attention to the meaning of human sexuality, procreation, and parenthood. Temperateness and Sexual Ethics In general, what is pleasant is good for human beings and what is painful is bad. However, balancing the instinctive desire for pleasure against the aversion to pain is inade­ quate as a guide to human life. To reach happiness, it will sometimes be necessary to forgo immediate pleasures or to endure suffering, and to do this well requires the virtue of temperateness. This does not mean moderation but, rather, that actions are taken when and if they are appropriate and not only in accordance to the pleasure they give. In matters of food and drink, moderation and variety is generally good both for health and for pleasure. However, social goods demand that sometimes we should feast and spiritual goods demand that sometimes we should fast. For some pleasures, such as taking illegal recreational drugs, the appropriate amount will be none at all. Temperateness is also necessary to prevent the harm that is done by sexual sins. However, sexual virtue involves more than moderation of pleasure for the good of physical health. It also concerns the goods of relation­ ship, of marriage and parenthood, and honesty and integrity. It is easy to see the harm done by adultery in terms of personal betrayal and harm to the marriage. It is less easy in a modern context to understand why sex between single people before marriage is necessarily harmful, but in fact this represents a trivialization of sex that is harmful, and it also leads to many harmful social

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consequences, such as unwanted pregnancy, abortion, and sexually transmitted infection. Perhaps the most controversial elements of Catholic teaching on sexual morality relate to contraception and homosexuality. There are many revisionist theologians who would wish to allow contraceptive and/or homosex­ ual intercourse if these occur within the context of a committed couple. Nevertheless, the teaching of the Magisterium is that to be virtuous, sexual union must be heterosexual and open to the possibility of children, in structure, if not in effect.

Marriage, Family, and Friendship All human beings come into the world through the union of a mother and a father. Even if we do not know our parents, they are part of our story and our identity. Family ties are by nature very strong, but such relationships are not easy. They are given rather than chosen and hence the first task of a human being is to learn to live with his or her family (or carers). Parenthood entails responsibilities and hence rights. The state may help parents to educate their children but has no natural right to come between parent and child unless the child is in grave danger. It is generally an injustice, for example, for doctors to take decisions on behalf of small children without the consent of the parents. The Catholic Church recognizes marriage as a human good common to all peoples but sees Christian marriage as having an extra dimension – a lifelong sacramental bond. Jesus said that anyone who divorces and marries again is being unfaithful to the first husband or wife. Hence, the Church will not remarry divorced people who were validly and sacramentally married, although it may declare a marriage null where there is evidence of invalidity from the start. The question of remarriage is a separate question from the moral question of divorce – although of course, divorce will often in practice involve harm to children or to one or both of the spouses. Although attention is rightly given to marital and family ties, human flourishing also involves relationships of friendship. It is good to get along well with work colleagues and to know people with whom one can relax, but serious friendship goes beyond these. True friendship is enduring and is based on mutual respect and a commitment to the good of one another. It shows itself in times of need. All these bonds – of family, marriage, and friendship – generate felt and actual obligations of loyalty. Nevertheless, there is a unity to the virtues, and even loyalty to family or friends can be a vice if it undermines a commitment to justice and the wider common good.

Education and Communication Imitating ‘Christ the Teacher,’ Christians have always sought to be teachers of the truth, and the Catholic Church has become the world’s oldest and largest provider of primary, secondary, and tertiary education. From major educational institutions to less formal kinds of instruction, the community – whether ecclesial or secular – shares with families and with students the responsibility of ensuring that all have access to appropriate instruction. This includes catechesis in faith and morals, a good general education, and such specialized education as will serve well the flourishing of the students and their community. In addition to the norms and virtues appropriate to the communication of any ideas, teachers have particular duties: to extend their own knowledge, research, and teaching skills; to cooperate with their students and, in the case of children, their students’ parents, as well as their fellow teachers; and to educate their students well, never undermining the broader project of the formation of the whole person, including the development of good character and right conscience. The ethics of communication also has a robust Christian history. Christ’s exhortations to truth-telling (‘‘let your yes be yes and your no be no’’) were extended in patristic and scholastic teaching on the intrinsic evil of lying. Catholic reflection in this area begins with the premises that genuine communication is a requirement of community life and truthfulness is a requirement of such communication. People have rights to information and free speech, and authenticity requires that they seek and tell the truth. All must cultivate appropriate virtues such as a passion for the truth, honesty, good judgment, modesty, taste, good humor, and piety.

Government and Punishment Human beings are social beings not only at the level of family and close friends but also at the higher level of tribe, city, or nation. The Scriptures speak often of the corruption of cities and of the pride of nations, but they also speak of the possibility of a holy city and a royal nation. The Catholic tradition recognizes the variety of goods that are supported by civil society that are made possible because of the existence of cities and nations. The existence of rulers and governments at the national level is therefore not only a response to sin. Nevertheless, the prevalence of sin has made it necessary for governments to use force to restrain wrongdoers. Where governments are powerless to resist and punish wrongdoers, then stable society gives way to lawlessness, banditry, and cycles of vengeance. Thus, the just use of force by the police and judiciary for the sake of the common good is authorized by God. However, where

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laws are unjust, they lose their authority and Catholics are not bound in conscience to follow them. Even after criminals are justly convicted, they do not lose their dignity as human beings. Hence, punishment should not be cruel or vindictive. Although a criminal may legiti­ mately be deprived of his liberty and his property, he should not be deprived of the right to see a priest or his right to the basics of food, shelter, and health care. The ultimate punish­ ment the state could impose is capital punishment. In the past, the Church accepted the legitimacy of this punish­ ment, but its teaching has developed and the Magisterium now teaches that capital punishment is legitimate only in cases of absolute necessity in which there is no possibility to keep criminals securely and humanely imprisoned. Just and Unjust Wars Warfare is generally sinful. War is always the result of unjust aggression on one side, and wars are frequently unjust on both sides. The doctrine of ‘the just war’ (or ‘legitimate self-defense’) that has developed since Augustine and Aquinas seeks severely to limit military activity. No war can be just unless several requirements are met: just cause and right intention, due authority, last resort, proportionate means, reasonable prospects of suc­ cess, and reasonable means. Just war theory should thus be distinguished from the concept of a holy war, jihad, or crusade, in which war is allegedly a religious duty. In modern times, it has become clear that this excludes aggressive, punitive, and genocidal wars and methods of waging war such as terrorism, blanket bombing, and the use of nuclear weapons or other weapons of mass destruc­ tion against population centers. The Vatican II document Gaudium et Spes declares that ‘‘any act of war aimed indis­ criminately at the destruction of entire cities or extensive areas along with their population is a crime against God and humanity meriting unequivocal and unhesitating condemnation.’’ If a war is just, citizens should generally participate as the law requires, but Christians must always work toward a just peace and should refuse to serve in an unjust war and may sometimes adopt a stance of conscientious objec­ tion or radical nonviolence. Governments and citizens are called to do what they can to limit the ‘utterly treacherous trap’ of the arms race and the escalation and cruelty of wars and to work for an international order supporting a lasting peace based on justice. Catholic Social Thought and the Environment Catholic social teaching is based on the doctrine that God created the world for the benefit of all human beings. For practical reasons, it is good that individuals can claim resources for their own use because this helps ensure people use resources responsibly and helps promote other

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values, such as friendship and family life. Nevertheless, this right to private property is not absolute but relative to the more basic truth of the universal destiny of human goods. The ability of people to earn money is dependent on complex social structures of trade and cooperation and relies on knowledge and skills provided by education and by past generations. Whereas someone who works hard may feel entitled to enjoy the exclusive benefits of that work, others who work just as hard receive fewer benefits and may have just claims that are not being met. Justice in society requires not only respect for property rights but also the fair distribu­ tion of resources to promote the common good of all. The dignity of the natural world is founded upon its being created by God, upon the Incarnation, and upon its promise of fulfillment in ‘the new creation.’ The environ­ ment is no mere resource with which people may do as they please. Catholic social teaching with respect to sus­ tainable development and the just distribution of resources has important implications for the natural environment and indeed for climate change. Although Catholic tradition does not support the notion of animal ‘rights,’ the sentience of animals occa­ sions particular human responsibilities. Animals should be appropriately protected and treated compassionately. Even where properly used for food, clothing, experimen­ tation, or as pets, they should be treated kindly, not cruelly, with respect, not contempt. Furthermore, in addi­ tion to individual animals, attention must be paid to the protection of endangered species and the preservation of important ecosystems. See also: Abortion; Aristotelian Ethics; Capital Punishment; Casuistry; Consequentialism and Deontology; Family, The; Human Nature, Views of; Religion and Ethics; Reproductive Technologies, Overview; Thomism; Virtue Ethics.

Further Reading Boyle P and O’Rourke K (eds.) (1993) Medical Ethics: Sources of Catholic Teaching. Washington, DC: Georgetown University Press. Cessario R (2001) Introduction to Moral Theology. Washington, DC: Catholic University of America. Curran C, et al. (eds.) (1979–2009) Readings in Moral Theology (15 vols.). New York: Paulist Press. Gormally L and Geach M (2005) Human Life, Action and Ethics: Essays by G. E. M. Anscombe. St. Andrews, Scotland: Imprint Academic. Grisez G (1983–97) The Way of the Lord Jesus 3 vols. Chicago: Franciscan. John Paul II (1993) Veritatis Splendor: The Splendor of Truth. New York: Paulist Press. John Paul II (2003) Catechism of the Catholic Church (2nd edn.). Washington, DC: U.S. Conference of Catholic Bishops. Jones DA (2004) The Soul of the Embryo: An Enquiry into the Status of the Human Embryo in the Christian Tradition. London: Continuum. May WE (2003) An Introduction to Moral Theology (2nd ed.). Huntington, IN: Our Sunday Visitor. McCabe H (2005) The Good Life. London: Continuum. McInerney R (1997) Ethica Thomistica (2nd edn.). Washington, DC: Catholic University of America.

444 Christian Ethics, Roman Catholic Pinckaers S (1995) The Sources of Christian Ethics. Washington, DC: Catholic University of America. Peschke KH (1993) Christian Ethics: Moral Theology in the Light of Vatican II (rev. edn., 2 vols.). Alcester, UK: Goodliffe Neale. Pontifical Council for Justice and Peace (2005, March 7) Compendium of the Social Doctrine of the Church. Washington, DC: U.S. Conference of Catholic Bishops.

Relevant Websites http://www.catholic.org.au – Catholic Church in Australia. http://www.catholic-ew.org.uk – Catholic Church in England and Wales. http://www.linacre.org – Linacre Centre for Healthcare Ethics. http://www.newadvent.org/summa – Thomas Aquinas Summa Theologiae. http://www.usccb.org – United States Conference of Catholic Bishops. http://www.vatican.va/holy_father – Vatican: for statements of popes. http://www.vatican.va/archive – Vatican: for the Bible, the Catechisms, the Code of Canon Law, and Vatican II. http://www.vatican.va/roman_curia/congregations – Vatican: for statements or Vatican Congregations (see especially Doctrine of the Faith).

Biographical Sketch Professor Jones is Director of the Centre for Bioethics and Emerging Technologies, St. Mary’s University College, Twickenham, UK. He read natural sciences and philosophy at Cambridge (1984–87) and theology at Oxford (1992–2000). He was made Director of the Linacre Centre for Healthcare Ethics in 2001 and moved from there to St. Mary’s University College, where he established a postgraduate program in bioethics. His doctorate was published as Approaching the End: A Theological Exploration of Death and Dying (Oxford University Press, 2007). His book, The Soul of the Embryo: An Enquiry into the Status of the Human Embryo in the Christian Tradition (Continuum, 2004) was positively reviewed by Sir Anthony Kenny in the Times Literary Supplement and Baroness Julia Neuberger in The Lancet and was short-listed for the Michael Ramsey Prize 2007. He is Vice Chair of the Ministry of Defence Research Ethics Committee and in 2008 became a member of a working party of the General Medical Council on end-of-life care. He has presented oral and written evidence on bioethical questions to a variety of government and nongovernment bodies, both in his own right and on behalf of the Roman Catholic Bishops of England and Wales.

Citizenship D Warner, Graduate Institute of International and Development Studies, Geneva, Switzerland ª 2012 Elsevier Inc. All rights reserved.

Glossary Citizenship The legal status confirming a person as a national of a country enjoying the rights and privileges following from that status. Cosmopolitanism The belief that an individual has duties, loyalties, and obligations beyond the particular state of which that person is a citizen.

Why Citizenship Is Important Today The subject of citizenship is extremely important for all states. The problem of citizenship touches on funda­ mental questions involving the organization of society and the place of the individual in that society. In fact, the problems of citizenship are tied to the deepest undercurrents in political and social life and to the very basis of the structure of a state. Each state determines the criteria for its citizens as well as its laws governing naturalization. In certain states, such as the United States, citizenship can be simply determined by where the person is born. In other states, citizenship is deter­ mined by the parents’ or a parent’s citizenship as well as residence. Historically, we can trace citizenship back to the Greeks and Aristotle, and we can see the inclusive and exclusive elements of citizenship in early times. Although not all of the population of Athens were citizens, citizenship was important for the life of the polis. Participation in public life was crucial for those who were deemed worthy. Indeed, citizenship was so important that much of the educational system in Athens was centered on preparing the elite to be good citizens. Public life, and hence good citizenship, had a very high priority in ancient Greece. Thus, the number of people eligible for that status was limited and the privileges accorded were rather high. The concept of good citizenship and its privileges was extended beyond a small locality and elite during the later stages of the Roman Empire, with the exclusiveness of citizenship obviously reduced by the expansion of territorial space. Whereas the Greeks were highly exclusive in their citizenship laws, the Romans gradually included increasingly more people in their citizenship laws to increase their control over their expanding empire. For the Romans, as for later empires, the granting

Nationalism Strong feelings of attachment to a large community usually united by history, culture, and language, most often identified with a movement toward sovereignty for that community. Nation-state A liberal ideal wherein a homogeneous community is recognized as sovereign and legally autonomous.

of citizenship was a means of separating groups from their local or tribal and ethnic affinities. The granting of citizenship to indigenous populations was a means of controlling large populations located far from the center of the empire. The modern concept of citizenship is intertwined with the development of the modern state in Europe and can be dated to the end of the eighteenth century. The American and French Revolutions were concerned with establishing stable political structures that included democratic practices based on notions of justice and equity. Citizenship, encompassing citizen’s rights, was fundamental to the establishment of equitable and just governments based on democratic ideals. In addition, the development of welfare policies in Europe in the nineteenth century made it important for someone to belong to one state or city in order to profit from those benefits, just as it was necessary to distinguish those who did not belong and could not benefit. It should be noted that at about the same time that the modern concept of citizenship was developing within states, Immanuel Kant was writing of the cosmopolitan ideal of world citizenship. Cosmopolitanism includes the recognition of the necessity for particular citizenship in a given country, but it also recognizes the duties of citizens to higher laws and eventually to a more universal form of citizenship. The growth of the modern state and the importance of citizens’ rights were related to the development of nation­ alism. Whereas citizenship focused on legal rights and privileges based on fundamental understandings of the individual and the individual’s relation to the state, the growth of nationalism in the nineteenth century high­ lighted the important emotional, subjective attachment that developed in conjunction with the growth of the modern state. It was not enough to have rules of equality and privilege for citizens; it was also important for those

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citizens to have feelings of belonging to the bureaucratic state entity. In that sense, as in ancient Greece, civic or public education became crucial as preparation for citi­ zenship. The growth, then, of modern citizenship is closely tied to the growth of the modern liberal state and to full participation within its activities. Citizenship today, for example, is a secular liberal concept, supporting the role of government in regularly holding mass elec­ tions in truly democratic countries. It is for that reason that the Greek emphasis on education as preparation for good citizenship has been extended to mass public educa­ tion. Normative decisions on democratic forms of governments and the types of citizens included are crucial factors in modern political life, as is the educational system that prepares students to be good citizens. The modern liberal state does not exist in social or intellectual isolation. The importance of citizenship tied to nationalism is being challenged not only in terms of domestic but also by exogenous cultural, corporate, and religious pressures. In the West, there have been profound changes in traditional patterns of migration. The United States, for example, is receiving an influx of immigrants from Latin America and from Asia that is altering the demographic structure of the society from its original European basis. Discussions in France about the wearing of veils in schools also point to fundamental shifts in migration patterns away from traditional European sources and, hence, fundamental modification of the demographic structure of that society. The War on Terror has also caused tensions between different ethnic groups within multicultural states and raised questions about asylum policies and immigration laws. The ruling elites of some modern countries such as Burma and North Korea appear to support nationalism but reject any practical conception of citizenship. In lawless failed states lacking recognizable government, such as Somalia, citizenship in any practical sense is impossible. The long-term implications of these patterns are more difficult to comprehend: It is not easy to predict to what degree and how societies integrate new members in terms of offering citizenship through naturalization. What must be noted, however, is that greater physical mobility has produced growing pressures on immigration and naturalization laws and, hence, increased the importance of citizenship as it relates to political and economic migration. Certain countries have traditionally been immigrantfriendly, especially countries such as Canada and Australia, which had relatively low population densities and appeared more open to multiculturalism and new citizens. Laws allowing new immigrants to become naturalized in these countries had been relatively flexible, inviting new migrants to enjoy the full status of citizenship, but Australia now has a very restrictive policy toward refugees and asylum seekers. Other countries have

always been less friendly to new immigrants and have placed considerable barriers in their path, including different levels of integration short of full citizenship. Decisions by the European Union have made it more difficult for certain groups to enter the Union and to eventually become citizens according to the individual laws of each country. More important, however, the pattern of Western countries offering citizenship to nontraditional members is part of a larger and more complex integration system. In addition to changing migration policies, Western nations are also experiencing profound structural changes related to citizenship from within. In North America, this is demonstrated by trade agreements between the United States, Canada, and Mexico. Most important, however, higher forms of social integration are occurring within the European Union. Instead of people moving from one place to another, as in the case of migration, European borders are changing from what once could be meta­ phorically described as rigid brick walls to supple cellular walls that will permit the osmosis-like free movement of people, goods, and services. Whereas in the case of migration people change countries, in the case of integration, the borders themselves have changed in the sense of permitting freer access. The expansion of the European Union, however, has caused fears in many countries in Western Europe about the impact of free movement of people on national sovereignty and identity, and it has called into question the very reason for migration. Following this pattern of integration, the differentia­ tion of citizenship rights between different countries becomes less pronounced within economic spaces such as the European Union and the North American Free Trade Area. Whereas individual citizenship rights still apply to individual countries, there are increasingly more commonalities involved in group citizenship within supranational organizations. Within Western Europe and North America, migra­ tion and integration have accentuated greater fluidity in social attachments toward larger units, and particular citizenship laws have become less important. The situa­ tion in the East shows a marked contrast. The breakups of the Soviet Union, Yugoslavia, and Czechoslovakia have resulted in smaller social units and more localized forms of attachments wherein individual, particular citizenship rights are accentuated. The births and rebirths of various nation-states remind us that increasingly higher forms of citizenship integration are not inevitable and are unlikely to occur in a linear progression. If one intuitively argues that societal interdependence will occur with developing technology (e.g., the Internet) and improved transporta­ tion (e.g., cheap air travel) – what is generally referred to as complex interdependence – the situations in the former Soviet Union, Yugoslavia, and Czechoslovakia point to

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another solution to the organization of social and political life. In many of the newly independent countries, norma­ tive decisions about citizenship reflect traditional animosities and exclusionary practices. In fact, the writing of new citizenship laws in the newly independent coun­ tries has accentuated the particularity of each individual country in contrast to the commonality found in the higher integration patterns. One could argue that citizenship defined in terms of state borders is being challenged throughout the world as the very meaning of sovereignty is being redefined. Integration and disintegration are both dramatic trans­ formations in the traditional spatial delimitations of the basic organization of political and social life, whether into larger or smaller units. Political theorists have debated the relationship between the individual and society within a clearly defined community, and international relations specialists and international lawyers have examined the relationship between communities defined as nationstates. The recognition of statehood for Kosovo is an example in which certain states have recognized the citizenship of Kosovars, whereas others have refused recognition. Recognition of the independence of Abkhazia and South Ossetia by Russia and its citizens as no longer Georgian and recognition of the Western Sahara by certain members of the African Union are other examples. Citizens of Taiwan or Tibet likewise are considered by the Chinese government to be inevita­ bly (regardless of democratic wishes) citizens of China. Social integration and disintegration call into question the legitimacy of both the emerging global civil society being planned by some political theorists and the waning nation-states being observed by international relations specialists and international lawyers. Just as the develop­ ment of the modern nation-state was paralleled by the emergence of the countering concept of cosmopolitanism, tensions between the particular and the universal can be found throughout citizenship laws. Whereas migration threatens individual identity, integration and disintegration threaten the state’s identity. A citizen’s identity is tied to the state that he or she is a citizen of: Citizenship is the constitutive element of political identity. However, as the previous examples from the West and the East suggested, states are going through a form of identity crisis. In sum, then, the question of citizenship/identity in the East and the West is part of the larger crisis of identity – a crisis that is acute for both individuals and the state. Although citizenship is the manifestation of a public identity, it is important to analyze how that public identity evolves, from both structural and emotional points of view. Citizenship is membership in a state, and it is necessary to step back from a static view of a state to see how the writing and interpretation of citizenship laws are an integral and dynamic part of a state’s identity.

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This erosion of an individual, national identity is also challenged by climate change and resource scarcity. Whereas the nineteenth century saw various informal regimes to litigate river access, climate change today has become a regional and global problem that knows no specific boundaries, as have pollution and pandemics. Corporate globalization is another phenomenon that strains national borders through multinational corpora­ tions. The seat of a company may be located in one country, but its affiliates are all over the world. Many of the new countries mentioned were not and are still not democratic. Indeed, the example of modern liberal states is far from being universal. Recognized human rights conventions and norms have fostered greater pressure on countries to ensure basic fundamental rights, but these rights have not always corresponded to clear and equitable citizenship norms. Discussions in the Baltic states concerning citizenship for the Russian minority are an example of this problem, as is citizenship for Turkish minorities in Germany. The High Commissioner for Minorities of the Organization for Security and Cooperation in Europe (OSCE) has dealt with several of these problems in the OSCE countries in an attempt to harmonize human rights, minority rights, and citizenship.

Elements of Citizenship What is citizenship? What are the elements that constitute political identity? There is no general agreement on a single definition of citizenship. Each country has its own legislation specifying the criteria for citizenship. There are international treaties governing certain basic human rights, but there is no one formula for all states for citizenship. As the expression of public identity, citizenship encompasses two elements: It includes the existence of a public authority made up of citizens who constitute the authority, and it includes the status following from the possession of citizenship. Citizenship is at once the recognition of an official position and the ability to use the rights and privileges following from that position. A citizen is one who is protected by the state and at the same time is a part of and uses the state to advance his or her claims on the basis of equality with fellow citizens. As indicated in the classic description of citizenship by T. H. Marshall, this public identity can be separated into three elements: the civil, the political, and the social. The civil element of citizenship is a position from which, on the basis of equality, people can make certain claims against each other and/or against the government. The political element is that which allows an individual to participate in the decisions of the government or to be a member of that government. In some states, for example,

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permanent residents may vote even though they are not full citizens. The social element can be summarized in terms of general welfare and group identity. In addition, Marshall saw a development in the acquisition of these elements from civil rights in the eighteenth century to political rights in the nineteenth century and economic and social rights in the twentieth century. What is the relationship between the civil and political elements? Can one have the civil element without the political element? To some extent, the answer is yes. African Americans in the United States did have certain civil rights before they were given the political right to vote. Foreign workers in most countries have certain civil rights even though they are not part of the political system in the sense of fully participating in elections. Moreover, one could argue that the internationalization of human rights has created a situation wherein indivi­ duals have certain rights regardless of their citizenship. Although specific citizenship is not covered by human rights conventions, all individuals have certain guaran­ tees. Human rights are citizenship blind; they posit a set of fundamental rights respecting intrinsic human dignity that potentially supersede national citizenship legislation. Human rights to many are universal constructions of natural law that should not be abrogated by a specific state. The Report of the International Commission on Intervention and State Sovereignty states that the interna­ tional community has the right, if not duty, to protect individuals if a state is unable or unwilling to protect its citizens. Human rights may be attributed by international law, but only states may grant citizenship. The Universal Declaration of Human Rights states, ‘‘Everyone has the right to a nationality’’ and ‘‘no one shall be arbitrarily deprived of his nationality nor deprived of the right to change his nationality’’ (Article 15.1.II), Article 25 of the International Covenant on Civil and Political Rights affirms, Every citizen shall have the right and the opportunity without . . . unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elec­ tions which shall be held under universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

From the human rights and natural law points of view, therefore, the civil element of citizenship can precede the political element. The political element in this sense is the forum within which the civil element is expressed. Participation in the political process of a country implies

that the country has a substructure that guarantees the basic civil rights mentioned. Both political and civil elements are part of what could be called the objective element in citizenship. In terms of political theory, the objective political and civil elements are part of the vertical contract between citizens and a government. Together, these elements form the basis of the legal structure of any state and constitute its structural basis. The civil and political elements are part of a common practice based on common rules: They form the structural basis of political practice. The objective, contractual structure of the civil and political elements allows the society to function insofar as the structure is actualized through practice. The civic and political elements of citizenship constitute the legal basis or skeleton of a country. They state that citizens of that country have certain duties, such as military duty or taxes, but that they also enjoy the protection of the state, public education, and so on. The objective elements describe the duties, obligations, and privileges coming from citizenship. The third element, the social element of citizenship, is the horizontal contract in society. In other terms, we could say that the civil and political elements constitute the state and that the social element constitutes the nation. Whereas the civil and political elements can be studied in legal documents representing the status accorded to citizens, the social element is much more difficult to discern and is tied to affective feelings of belonging that are associated with nationalism or patrio­ tism. Although the objective element is necessary for the proper functioning of the state, the subjective element provides the sufficient affective or psychological cohesion that allows a state to function. Without the sense of belonging, the status of citizenship is insufficient to a cohesive political body and the proper functioning of a government. The question of citizenship, therefore, cannot be studied by only considering the legal documents and requirements for citizenship in individual states. The subjective element in citizenship leads one to examine how a society sees itself and how it determines a person’s sense of belonging. The state in this sense is more than just a legal entity: It includes questions of nationality and ethnicity and a sense of belonging through historical experience, culture, language, and religion. The subjec­ tive element is closely tied to personal feelings of loyalty. These feelings have often been tied to modern revolu­ tionary movements calling for legal and political selfdetermination in the name of nationalism by different groups within larger entities. Today, in times of changing borders and higher forms of integration, it is this subjective element that has been the most difficult to pinpoint and capture. Given large forced migrations in the former Soviet Union,

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for example, questions of citizenship in the newly inde­ pendent Baltic states have been most difficult. The relationship between language and citizenship, dual citizenship, residence, and loyalty has been particularly contentious in this region. The situation in the former Yugoslavia also shows the tense relationship between nation, nationality, and citizenship. Whereas the legal nature of citizenship can easily be amended, the subjec­ tive element is more difficult to perceive and changes based on new political realities. The drawing of territorial borders is often easier than decisions concerning sentiments of populations, and it is perhaps the subjective element that is the most explosive. Legal status and affective belonging are not always interchangeable.

Citizenship and the Nation-State What are the possible relationships between the horizon­ tal and vertical contracts, the subjective and objective elements of citizenship? According to traditional liberal theory, members of a given nation should be members of the same state. In other words, liberal state theory tells us that the nation and the state should be similar – hence the democratic ideal of the peoples’ will reflected in the institutions of the nation-state. This theory holds that one is supposed to be a legal member and an affective member of the same country at the same time. However, this has rarely been the case in history. Although the nation-state has been hailed as the most dynamic and effective form of political identity in the modern world, we have rarely seen the legal borders of a bounded territory country coterminous with a fairly homogeneous social group. Not accepting a priori the ideal equation of the nation-state, it is important to examine three possible types of relationships between the objective and subjective elements. First, we could assert that the vertical and horizontal contracts are symmetrical, that there is a historic fit between the legal system of a state and the nation and community of people who reside within that state. This ideal of the nation-state is assumed within this concept of nationalism. Nationalism is a political program that includes the alignment of the nation and state. It holds that groups defined as nations have the right to, and therefore should, form territorial sovereign states of the kind that have become standard since the French Revolution. Without the realization of this program of legal recognition, sovereign autonomy nationalism does not attain its fulfillment. In practice, the program usually means exercising sovereign control over, so far as possi­ ble, a continuous stretch of territory with clearly defined borders, inhabited by a homogeneous population that forms its essential body of citizens.

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This ideal type of symmetry between the nation and the state can be placed in historical perspective. For example, Marshall maintains that the three elements, our two contracts, were united in earlier times, and that each of his three elements belongs, in its formative period, to a different century. Discussions that call into question the symmetry of the nation-state and highlight its importance as an ideal lead us to question the relationship between the state and the nation. In other words, what happens when there is no symmetry? We have referred to the liberal nation-state as an ideal, a very rare exception in history, divorced, for many people, from their experience in the modern world. Thus, we should recognize that, in reality, the vertical and horizontal contracts are usually separated. Whether or not the elements were united in previous times, it is the separation of the different elements – often their con­ frontation and/or overlapping – that confronts us today. Realistically, therefore, we must talk of the differentiation between the horizontal and vertical contracts and the subjective and objective elements of citizenship. It is the separation of the two axes, the differentiation between the elements, that renders the problem of the nature of citizenship so complex. Whereas formal citizenship can be analyzed as a legal right, it cannot encompass the imagined community that is so crucial to genuine statehood and belonging. Thus, moving away from the initial assumed relation of symmetry, we could speculate on the conditions for separation of nation and state. We could say that there was initially separation, followed by a historic fit, and then a subsequent separation. One could say, for example, that an ethnic community formed a communal will – a nation – that became formally recognized as a state under international law. In this sense, there are really two contracts. From the initial state of nature, there was the initial contract to form the community, and then there was the contract by the community to form the legal entity of the state. On the other hand, we could speculate that the state created the community in the sense that the governmental structure imposed a certain order that itself became constitutive of the meaning of society. The state may have been merely laws and rules, but the practice of those laws and rules created deeper attachments and involvements. The second and third possibilities of the relationship between the different elements of citizenship assume that there has always been estrangement from the ideal and speculate about the reasons for this. Whether one argues for the primacy of the horizontal or vertical axis con­ cerning nation and state, to see one of the elements without necessarily trying to combine the two is to deny all of the emotions of patriotism. It is to view citizenship as a commodity like any other practical association. To demythologize the ideal of symmetry and to posit

450 Citizenship

estrangement as the norm is not to deny that the ideal of symmetry and the historic fit is still a powerful force. It is in this sense that one sees certain citizenships bought on the market today in terms of tax packages or people holding different citizenships for various advantages. There are increasingly more situations in which people can have citizenship because they can create jobs or have intellectual advantages. Multinational corporations are corporate entities that are legally bound to certain states, usually for tax reasons, but they have no affective relationship to their physical surroundings. If a country changes its tax laws, one would assume that companies would react by moving to the country or to another country. Discussions in Switzerland about banking secrecy show a clear example of the nonemotional attachment of modern multinational corporations to their physical location. In this sense, the corporations are a subversive element toward a coherent national identity. The significance of citizenship, therefore, depends on a reading of the relationship between its subjective and objective elements, whether one assumes symmetry or estrangement between nation and state. Whereas it is relatively simple to write laws about what is required to be a citizen, it is much more difficult to anticipate the consequences of those laws for the society at large in terms of the social element. Conversely, although it is understandable for an ethnic group to want to expand its territorial domain, the movement from ethnic group to nation to nation-state is a much larger project, as in the situation of the Kurds. Or, it may be argued, there could be the establishment of the legal state and then the creation of nationalist sentiments. An analysis of the citizenship laws of a given country, therefore, tells us how that country conceives of the very fundamental relationship between those living within a given society and the limits of that society in terms of attachments. For example, certain states award citizenship on the basis of jus soli, birth and residence in a particular place, rather than jus sanguine, descent no matter where the person was born or raised. The case of Hungarians is a good example. To be a Hungarian, as far as language, history, and culture is concerned, is not the same as Hungarian citizenship, especially since the demise of the Austro-Hungarian Empire. The state of Hungary lost two-thirds of its territory and one-third of its population after World War I. In fact, the problem of the Hungarian minority outside Hungary points to the very difference between nation and state. In much of Eastern and Central Europe, there were nations before there were states. With the collapse of the Soviet bloc, there has been an attempt to realign the nation and state. The Hungarian citizenship law of 1993 recognizes the principle that all descendants of Hungarian citizens shall be Hungarian citizens if they

move to Hungary, and it gives a particular status to those Hungarians who have lived outside the borders of the country Hungary since it lost its territories. Thus, Hungarian minorities living in neighboring countries were given preferential treatment to become naturalized Hungarians in an effort to realign nation and state to the liberal ideal.

Citizenship as Exclusion The relationship between the objective and subjective elements within citizenship also tells us something about the limits of that society in another sense. Even if we reject the social element in citizenship, citizenship still has its limits. Whatever we say it means to be a citizen legally, we cannot forget that citizenship is a statement of belonging that is naturally exclusive. To say that someone is a citizen of a country is to both include that person within the framework of other citizens, whether objec­ tively or subjectively attached or both, and to say that this group that person is part of is a group that excludes others. Membership in any group is a form of division between insiders and outsiders, and one cannot ignore this negative, exclusive element in a full discussion of citizen­ ship. Granting citizenship to some is to deny citizenship to others. As we saw in ancient Greece, the importance of privileged citizenship put a high premium on its possession, with its necessary corollary of discriminating against noncitizens. Membership as a general principle includes a decisionmaking process. That is, there are certain members, or the entire membership, if possible, who decide who will be new members and who will be excluded. What is important about this process is not only the form of the process but also the criteria on which the decision is made. The criteria are of positive and negative sorts. The positive says that a group wants a particular person to be a member either because the person is like the group or because the person is like what the group wants to be. Canada, for example, has been rather generous in granting citizenship to those who can clearly demonstrate the capacity to create employment for Canadians. The United States has done this for certain intellectual workers. The criteria established for membership also imply what people do not want: Membership and nonmembership cannot be separated, just as citizens and noncitizens cannot be separated. The positive granting of citizenship to one is closely tied to the denial of citizen­ ship for another. The United States continues to wrestle with the question of granting citizenship to Mexicans who have lived and worked in the United States for many years. Germany has much the same debate concerning Turkish workers, many of whom have lived in Germany for generations.

Citizenship

The crisis of identity that we have emphasized for both the individual and the state has greatly exacerbated the importance of the negative element. Instead of talking about the constructive elements of citizenship, in terms of equality and community, in modern times we often use the notion of citizenship as a means of negative affirmation. Although we see greater freedom developing in the movement of goods and services, the free movement of people (and eventually the granting of citizenship) has become increasingly more limited. Arguments over immigration policies have become increasingly more frequent in democratic countries. Myths or imagined communities are terribly important for nation-state building. They can be based on the heroism of past leaders or acts of group valor. Unfortunately, they can also be based on negative denial of the value of noncitizens. With greater restrictions on naturalization, we see this negative element increasingly more in the forefront. The exclusive element has been worsened in modern times by the current individual/state identity crisis. It is as if the pressures and uncertainties of technology and integration have caused nationalist and patriotic feelings to be based solely on the negative element. In reaction to this negative element, one could say that all particular memberships should be abolished in order to arrive at the largest possible universal community: For certain cosmopolitans, returning to the ideals of Immanuel Kant, any form of citizenship is wrong because it inherently separates them from us. (Citizens of the World would be an obvious exception.) What is appealing about cosmopolitanism is that it avoids the ethical dilemma of explaining why a person has greater duties and obligations to fellow citizens than to someone else. Although one can easily explain closer ties to family and clan, one must also recognize that one has special duties to fellow citizens under traditional citizenship laws. Cosmopolitanism in this sense avoids the distinction between citizens and noncitizens and a hierarchy of ethical obligations. Separation between citizens and noncitizens in and of itself is not necessarily an ethical problem. Rather, the difficulty lies in the understanding of what the separation means. One cannot argue about insiders and outsiders until one can clearly define what it means to be an insider and to be an outsider. If one is born in the United States, one is automatically a citizen of that country, no matter what one’s parental status may be. This accident-by-birth citizenship begs the enormous complexity of establishing criteria for choosing new citizens, just as do lotteries and other forms of fortuitous selection. In addition, the accident-by-birth criteria highlight the problematic distinction between conventional duties toward fellow citizens and the lack of obligation toward others beyond

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borders. Indeed, as increasingly higher levels of integra­ tion become evident (e.g., the European Union with 27 members), questions of subjective attachment will become more acute. Whereas globalization in general and climate change in particular will make national identity more problematic, the subjective element of belonging will become increasingly more fragmented and differentiated from national borders. Religious fundamentalism, for example, is based on a strong, subjective element of belonging, but it is identified with no nationality or citizenship. The element of exclusion can be seen in both objective and subjective elements of citizenship. Legally, one can be excluded from citizenship in a country but can develop profound social attachments through permanent residence. In many countries, permanent residents can even vote. On the other hand, one can legally be a citizen of a state while remaining excluded from the dominant nation or society of that country. Indeed, one can legally be a citizen of certain countries without ever having lived in those countries. In general, however, we focus on exclusion from citizenship in the legal sense. Each state has the right to decide on what basis citizenship in that state can be acquired. That right is an integral part of a state’s self-definition. Even in ancient Greece, the cradle of democracy, of Athens’ approximately 250 000 population, only 40 000 people were citizens. Nonetheless, whether it is the state’s right to determine its citizenship criteria or some international authority’s function to determine citizenship legally, the relationship between the sub­ jective and objective elements cannot be decided by legislation. The relationship between the objective and subjective elements is worked out within the society and in forms of dialogue with those outside the borders. The relationship is an ongoing process that is expressed through various fora. Debates about citizenship put the political identity of citizens and noncitizens into focus in terms of the state’s identity. It is in this sense that debates about citizenship are an important prism.

See also: Aristotelian Ethics; Greek Ethics, Overview; Kantianism; Liberalism; Political Obligation.

Further Reading Friesen G (2000) Citizens and Nation: An Essay in History, Communication, and Canada. Toronto: University of Toronto Press. Gutmann A (2003) Identity in Democracy. Princeton, NJ: Princeton University Press. Hammar T (1990) Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration. Aldershot, UK: Gower.

452 Citizenship Heater D (2004) Citizenship: The Civic Ideal in World History, Politics and Education. London: Longman. Hoffmann S (1981) Duties beyond Borders: On the Limits and Possibilities of Ethical International Politics. Syracuse, NY: Syracuse University Press. Liebich A, Warner D, and Dragovic J (eds.) (1995) Citizenship East and West. London: Kegan Paul. Marshall TH (1950) Citizenship and Social Class. Cambridge, UK: Cambridge University Press. Saul JR (2006) The Collapse of Globalism: And the Reinvention of the World, 2nd edn. London: Atlantic Books. Shklar JN (1991) American Citizenship: The Quest for Inclusion. Cambridge, MA: Harvard University Press. Smith R (2003) Stories of Peoplehood: The Politics and Morals of Political Membership. Cambridge, UK: Cambridge University Press. Walker RBJ (1993) Inside/Outside: International Relations as Political Theory. Cambridge, UK: Cambridge University Press.

Relevant Website www.queensu.ca/cded/news35.html – Citizenship, Democracy and Ethnocultural Diversity Newsletter.

Biographical Sketch Daniel Warner is Director of the Centre for International Governance at the Graduate Institute of International and Development Studies in Geneva, Switzerland. He earned his B.A. in Philosophy and Religion from Amherst College and a Ph.D. in Political Science from the Graduate Institute of International Studies in Geneva. His book, An Ethic of Responsibility in International Relations, was awarded the Marie Schappler Prize by the Socie´te´ Acade´mique de Gene`ve in 1991. He has lectured and published extensively on ethics, refugees, U.S. foreign policy, international law, and international relations theory. Author, edi­ tor, or co-editor of 11 books and numerous articles, his work has been translated into French, German, Russian, Arabic, Azeri, and Persian. He has lectured at Oxford, Cambridge, Harvard, Yale, Moscow State University, the University of Tokyo, Fudan University (Shanghai), Hebrew University, and the University of Paris, Sorbonne, among other universities and has been an invited scholar by Australian National University, University of Nebraska–Lincoln, the Ministry of Foreign Affairs of the Republic of China, the Japan Foundation, and Oxford University.

Civil Disobedience D Lefkowitz, The University of Richmond, Richmond, VA, USA

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Hugo Adam Bedeau, volume 1, pp 501–508, ª 1998, Elsevier Inc.

Glossary Civil disobedience Deliberate disobedience to the law or legally sanctioned rules of a political community for the purpose of publicly contesting the morality or wisdom of one or more of its laws or policies, though not the community’s general claim to legitimacy. Conscientious objection A refusal to comply with a law or, more generally, an authoritative standard or rule, committed in the belief that compliance would require one to betray one’s deepest commitments. Direct civil disobedience An act of civil disobedience in which a person violates the very law whose justice he or she wishes to contest.

Introduction An individual commits an act of civil disobedience by deliberately disobeying the law or legally sanctioned rules of a political community for the purpose of pub­ licly contesting the morality or wisdom of one or more of its laws or policies, though not the community’s general claim to legitimacy. Civil disobedience has fig­ ured prominently in political campaigns for women’s suffrage; to extend the equal protection of the law to minority groups such as African Americans in the United States; to refashion labor laws, rules governing international trade, or entire economic systems; to con­ test the legal practice of abortion or the legal recognition of same-sex marriage; to challenge the moral justifiability or wisdom of wars; and to contest environmental policies such as those regulating the pro­ duction of climate change gases. As with most topics in applied ethics, philosophical discussion of civil disobedience focuses primarily on two tasks. The first is an analysis of the practice (or, perhaps, the concept) of civil disobedience itself. Theorists typi­ cally aim to provide a characterization of civil disobedience that is morally neutral, meaning that it leaves open the question of whether civil disobedience is ever morally justifiable. Answering this question – identifying the conditions, if any, under which an act of civil disobedience is morally justifiable, and explaining why that is so – is the second task undertaken by most

Indirect civil disobedience An act of civil disobedience in which a person violates one law as a means for protesting the justice of a different law that he or she is not currently violating. Legitimacy The right to rule, traditionally thought to consist of a morally justifiable claim to authority that gives rise to a duty of obedience. Prima facie duty A duty that can be outweighed or defeated by other moral reasons for action. Right to do wrong A moral claim against others that they not interfere with the attempt to do a certain kind of act, even if in the circumstances that act is contrary to what the balance of moral reasons favors.

political and legal scholars writing on civil disobedience. Though much of the discussion in this article concerns this second task, I begin with a few remarks on the challenges involved in characterizing the practice of civil disobedience.

The Nature of Civil Disobedience Deliberate violations of the law may be either prin­ cipled or unprincipled. Acts of the first type, which include all genuine instances of civil disobedience, must be done from a moral motive. Typically, that motive will be a concern for justice, though in rare cases it may involve the belief that a law or policy is highly imprudent, though not unjust. Even in cases of this type, however, the disobedient agent acts as he does out of concern for the well-being of the political community and its members and in the belief that the new state of affairs he seeks to bring about is consistent with the demands of justice. These motives are absent in the case of unprincipled disobedience to law, or what might also be labeled common crimes. Note that, on this characterization of principled disobedience to law, it is not enough that a person believes that morality sanctions his illegal conduct. Rather, morality must actually motivate the actor’s violation of the law, though given that morality and self-interest sometimes

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align this does not preclude his also being motivated by self-interest. Civil disobedience is a type of principled disobedience to law that is distinct from conscientious objection – or more precisely, appeals to the state for recognition as a conscientious objector to law – and from revolution. Whereas civil disobedience requires that an actor intend to publicly contest the moral acceptability of a law or policy, an appeal to the state for recognition as a con­ scientious objector does not. Rather, it requires only that the actor seek to be to be shielded from the consequences of a certain type of act being required by law because she believes morality forbids her from engaging in such con­ duct. Of course, the same person may commit acts of civil disobedience and also petition the state for recognition as a conscientious objector, but the two types of conduct are both analytically distinct and separable in practice. Unlike revolutionaries, civil disobedients do not com­ pletely reject the government’s legitimacy, or right to rule. Rather, they aim only to contest one or another of the ways in which it exercises that right, e.g., its adoption of a certain foreign policy, or the passage of certain laws to address the human impact on the natural environment. Revolution, in contrast, necessarily involves a challenge to the government’s very legitimacy; revolutionaries aim to replace the existing government and not merely to bring about a change in the way it exercises its powers. Revolutions need not be violent, and in some cases the specific tactics revolutionaries adopt may be no different than those civil disobedients employ, facts that frequently cloud the distinction between these two types of prin­ cipled disobedience to law. The distinction is a critically important one, however, for there may be cases in which civil disobedience is morally justifiable while revo­ lution is not. Civil disobedience requires that a person publicly contest the justice or wisdom of a law or policy. Mere noncompliance with a law, even when motivated by a concern for justice, does not suffice to make an actor’s illegal conduct an instance of civil disobedience. Rather, an individual must attempt to engage with all the mem­ bers of the relevant political community in order to challenge the justice of a law or policy. The relevant political community refers here to those who bear a certain degree of responsibility for what the disobedient believes to be an unjust law or policy. This may include legislators and judges, ordinary citizens, corporations, and even other states. Note, however, that while a challenge to the moral acceptability of a law or policy must be public if it is to be an act of civil disobedience, those who carry it out need not make their identity known. Thus an anti-war protest march conducted with­ out the legally necessary permits qualifies as an act of civil disobedience even if those who participate in it wear masks in order to hide their identities. The moral

and strategic importance of a civil disobedient’s divul­ ging, or not divulging, his identity is a separate matter I consider later in this article. On the analysis of civil disobedience offered here Henry David Thoreau should be described not as a civil disobedient but as a conscientious objector, despite the fact that he is the author of an essay that has come to be known by the title ‘‘Civil Disobedience’’ (though he did not call it that). Likewise, though he frequently described many of the steps he took to protest British rule over India as instances of civil disobedience, Gandhi, too, did not engage in civil disobedience as I characterize it here. Rather, he was a revolutionary, albeit a nonviolent one. Still, while it excludes Gandhi and perhaps Thoreau, my characterization of it does capture many other instances of illegal conduct commonly thought of as civil disobe­ dience. I suggest that the contribution this analysis makes to our ability to map with a fair degree of precision the morally complex terrain of obedience and disobedience to law compensates for the fact that it fails to apply to a few cases that are viewed by many as paradigm examples of civil disobedience. Two cautionary notes warrant emphasis before I turn to the moral justifiability of civil disobedience. First there is no consensus on a precise characterization of civil disobedience, and therefore readers should pay careful attention to how different writers define it, and so what they identify as instances of genuine civil disobedience. Second, there are limits to the clarity that can be achieved even by a complex, multifaceted analysis of the practice (or concept) of civil disobedience. In some cases it may be better to set aside the question of whether a given act counts as civil disobedience and focus instead on its moral justifiability.

The Moral Justifiability of Civil Disobedience Civil Disobedience and Political Legitimacy The moral justifiability of civil disobedience is of special interest where the laws an actor violates are those of a legitimate state. Traditionally, a legitimate state is thought to enjoy a morally justifiable claim to authority over its subjects, and they have in turn a duty to obey the state’s laws simply because they are the law of their state. Within certain limits, this is so even in cases where the law conflicts with what justice truly requires. Thus a complete moral evaluation of the practice of civil disobe­ dience must assess it from the standpoint of its relationship to political legitimacy as well as its relation­ ship to the realization of substantive justice. Or at least that is so if some modern states meet the conditions necessary to justify their claim to legitimacy, as tradition­ ally understood. A significant number of political and

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legal theorists writing today maintain that none do. For these writers, often referred to as philosophical anarchists, no modern state has a general, morally justified, claim to its subjects’ obedience. Instead, philosophical anarchists claim that the moral permissibility of flouting the law or otherwise frustrating the state’s efforts to rule must be assessed on a case-by-case basis. Even for philosophical anarchists or for those who live in an illegitimate state, however, the category of civil disobedience to law may still be a morally salient one if, for example, it turns out that acts of civil disobedience tend to be morally justified far more frequently than are other kinds of illegal conduct. Civil Disobedience as a Morally Right Act An action may be morally justifiable either because it is morally right, or because it is one a person has a moral right to do, or both. I consider the possibility of each type of moral justification for civil disobedience in turn. Civil disobedience to law is morally permissible in any circumstance where, all things considered, the moral rea­ sons that favor it outweigh or defeat those that count against it. Put another way, a particular act of civil dis­ obedience is morally justifiable if, all things considered, no other method for contesting a given law or policy will make a greater contribution to the realization of justice. Typically the alternative courses of action will consist of various legal means for challenging the law or policy at issue, but in some cases it may also include other forms of principled disobedience to law, such as revolution. Thus a central task for applied ethicists is identifying those con­ siderations that count for or against the moral justifiability of civil disobedience, and insofar as it is possible to do so, offering at least some rough guidance regarding when people should or should not commit acts of civil disobedience. One factor that might appear to completely rule out morally justifiable civil disobedience is the moral duty a legitimate state’s subjects have to obey its laws. This conclusion follows, however, only if the moral duty to obey the law is absolute, meaning that it allows neither for exceptions nor for the possibility that some other moral reason for action might outweigh or defeat it in a parti­ cular case. Though such a view has had some prominent advocates, including Immanuel Kant and Jeremy Benthem, no contemporary theorist endorses it. Rather, the moral duty to obey the law is said to be a prima facie one, meaning that in some cases it can be outweighed or defeated by other moral reasons for action. In some of those cases where the moral duty to obey the law is outweighed, an individual may be justified in engaging in civil disobedience. Spurred on by the African American Civil Rights Movement, protests against the Vietnam War, and the

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political upheaval in France that reached its zenith in 1968, the 1960s and early 1970s saw an enormous out­ pouring of theoretical work on civil disobedience to law. Since then, an increasing number of political philosophers have come to view various factors described at that time either as necessary for an act to count as genuine civil disobedience, or as necessary for the moral justifiability of such acts, as factors that frequently or typically contribute to its justification but that need not be present in order for an act to be an instance of morally justifiable civil disobe­ dience. Features for which such a conclusion is now broadly accepted include: the directness or indirectness of the illegal act; the degree to which the law or policy being contested is unjust; the likelihood that civil disobe­ dience will lead to the reform of the law or policy it targets; whether legal means for contesting the law or policy have been exhausted; whether the act of civil disobedience involves violence to others, or to public or private property; and whether those who engage in civil disobedience acquiesce in the state’s apprehension and punishment of them. I discuss each of these briefly in turn. A direct act of civil disobedience is one where an actor violates the very law whose justice he or she wishes to contest. In contrast, indirect acts of civil disobedience involve the violation of a law the justice of which is not presently of concern to the actor as a means for protesting against some other law he believes to be unjust but that he is not currently violating. It might be thought that indirect civil disobedience does more to weaken the rule of law than direct civil disobedience. Were this the case, then given the value of the rule of law it might well follow that in general civil disobedience must be direct if it is to be morally justifiable. However, no one has produced the evidence necessary to support the claim that indirect civil disobedience generally contributes more than direct civil disobedience to the erosion of the rule of law. Furthermore, in many cases it will be impossible for some people to publicly contest a law or policy they believe to be unjust by violating that very law. It would be exceedingly odd were it to be impossible for whites to engage in acts of morally justifiable civil disobedience in order to challenge laws that discriminated against blacks or people with a racially mixed heritage. Yet if the laws in question did no more than prohibit non whites from certain types of actions, such as using a public water fountain, such a conclusion would follow. It seems, there­ fore, that the directness of an act of civil disobedience cannot figure even in a general claim regarding the moral justifiability of civil disobedience, let alone a claim about what is necessary for it to be morally permissible. The same is not true for the degree to which the law or policy being contested is unjust, the likelihood that civil disobedience will lead to reform of the law or policy it targets, and whether legal means for contesting the law or policy have been exhausted. Most acts of civil

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disobedience do impose moral costs on the political society in which they take place, as well as on at least some individual members of that society. For example, law enforcement resources spent responding to acts of civil disobedience reduce the availability of such resources for the prevention of common crimes. Civil disobedience can also have detrimental effects on indivi­ duals’ economic well-being, with implications for their ability to lead good lives and to uphold their private moral commitments (e.g., promises they have made to friends or family members). The greater the moral costs created by an act of civil disobedience, the greater the injustice it corrects must be in order for such an act to be morally justifiable. Alternatively, or more likely in addi­ tion, the more costly an act of civil disobedience, the greater its likelihood of successfully leading to reform must be in order for it to be morally permissible. Finally or again in addition, the higher the moral costs resulting from an act of civil disobedience, the greater the demand on the agent to seek to bring about the desired change through legal means. As these remarks illustrate, each of these factors – degree of injustice, likelihood of success, and last resort – are but components of a single criterion for the moral justifiability of civil disobedience, which borrowing from the just war tradition, I label proportionality. Very roughly, an act is proportionate if it constitutes or produces (significantly) more moral good than moral bad. While the requirement of proportionality may appear to severely limit the number of cases in which civil disobe­ dience is morally justifiable, it is important to recognize that some acts of civil disobedience have few morally problematic consequences. In these cases civil disobe­ dience will be morally justifiable even if it produces only a minor moral improvement to law or policy, as long as that improvement is enough to outweigh the small cost resulting from the disobedients’ violation of the law. Alternatively, in a case where his illegal conduct is unlikely to result in significant moral costs, an actor may well be morally permitted to commit an act of civil disobedience that has little chance of leading to the reform he believes necessary, but where such reform would constitute a major improvement to the justice of the law or policy he targets were it to occur. In sum, while degree of injustice, likelihood of success, and last resort do figure in an assessment of the moral justifiability of every act of civil disobedience, they do so not as independent criteria but rather as aspects of proportionality. That is why the most that can be said of them is that they provide general, but not necessary, conditions for the moral jus­ tifiability of civil disobedience. For many, civil disobedience is synonymous with non­ violent disobedience to law. For reasons set out earlier, I reject the equation of the two. Still, even many of those who distinguish between them maintain that civil

disobedience must be nonviolent if it is to be morally justifiable. This view has also been the subject of much recent debate. In particular, a number of contemporary theorists argue for the moral permissibility, in certain circumstances, of acts of civil disobedience that involve the infliction of a limited amount of damage to public property. Examples include the defacing of a public building or the decapitation of a publicly owned statue. One reason to accept this conclusion is that contesting a law or policy by means of civil disobedience will not always impose greater costs on a political society and its members than will legal challenges to it. Moreover, it is possible that a limited amount of damage done to a piece of public property as an act of civil disobedience may impose fewer moral costs than do types of civil disobe­ dience that are often viewed as morally justifiable, such as illegal marches or sit-ins. Those costs include not only the diversion of law enforcement resources from the preven­ tion of common crimes, but also the violent harm done to civil disobedients and police officers alike that occasion­ ally results from what was meant to be a nonviolent protest. Still, while both scholars and practitioners are divided over the moral permissibility of acts of civil dis­ obedience that involve the deliberate destruction of property, few argue that civil disobedience can be morally justified if it involves deliberately harming other people, or placing them at undue risk of suffering harm as a result of damage done to public or private property. One last condition frequently described as necessary for the moral justifiability of civil disobedience is that those who engage in it accept the state’s punishment for doing so. On a weak understanding, accepting punishment amounts to nothing more than refraining from the use of violence to resist arrest and prosecution. Being willing to accept pun­ ishment in this sense is consistent with a civil disobedient attempting to hide his identity, or making nonviolent efforts to avoid arrest, or employing various legal means to contest the state’s prosecution of him (or at least to raise the cost of its doing so). On a stronger understanding, accepting pun­ ishment for engaging in civil disobedience requires that an individual forgo some or all of these actions, e.g., that he make no effort to avoid arrest. As in the case of nonviolence, however, it is hard to see why the willingness to accept punishment should serve as a necessary condition for the moral permissibility of civil disobedience. While nonviolent efforts to avoid arrest and attempts to raise the cost of prosecution will almost always impose some moral costs on a political society and its members, it does not seem implausible to think that in some cases these acts may also produce good moral consequences that outweigh those costs. If so, then an act of civil disobedience will still be morally justifiable even if the agent that commits it is will­ ing to accept punishment only in the weak sense sketched above. An example of such a case might involve nonviolent efforts to prevent the arrest of an especially charismatic

Civil Disobedience

leader of a movement that engages in civil disobedience to contest a seriously unjust law or policy. The good moral consequences of this person remaining free to organize further protests may be enough to counter the moral costs resulting from the future acts of civil disobedience he leads, and perhaps the effects his escape has on political and social stability, and the rule of law. Of course, the fact that a civil disobedient may seek to hide his identity, or make nonviolent efforts to avoid arrest, and so on, without necessarily making his conduct morally unjustifiable does not imply that it would be wise for him to do so. From a purely strategic point of view, such actions may often be counterproductive. Submitting to arrest may make it more likely that the media will report an actor’s civil disobedience, which may in turn spur greater interest in and discussion of the law or policy the actor wishes to reform. Similarly, a public prosecution may sometimes provide a forum for a civil disobedient to present in some detail the reasons he has for thinking that a given law or policy is unjust. Finally, acceptance of punishment can serve as a means by which a civil disobe­ dient publicly renounces any intention to forcibly impose a particular political or legal order upon other members of the political community. A Moral Right to Civil Disobedience Thus far I have examined factors often thought to con­ tribute significantly to making civil disobedience morally right. However, civil disobedience, or at least certain types of civil disobedience, may also be something that people have a moral right to do. The distinction between an act being morally right and it being one a person has a moral right to do is of special interest if, as a number of contemporary political philosophers argue, certain moral rights entitle agents to do wrong. A person has a right to do wrong when he has a moral claim against others that they not interfere with his attempt to do a certain kind of act, even if by doing so in the circumstances at hand he acts contrary to what the balance of moral reasons favors. If under certain conditions actors have a right to engage in civil disobedience, and if that right is a right to do wrong, then it will sometimes follow that even when the factors mentioned in the previous section do not make civil disobedience morally right, such conduct may still be morally justifiable in the sense that neither the state nor private actors are morally permitted to interfere in certain ways with the civil disobedient’s illegal actions. Debate over the existence of a moral right to civil disobedience focuses almost exclusively on the case of citizens of a liberal-democratic state. One long-standing view is that there can be no right to civil disobedience in such a state, at least if that right is understood to be a component or extension of a more general moral right to political participation. If civil disobedience necessarily

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involves the violation of the law for the purpose of engaging with members of the relevant political com­ munity in order to contest the moral acceptability of a given law or policy, and if in a liberal-democratic state the moral right of every person to political participation is adequately recognized and protected in law, then it follows that citizens of such a state cannot appeal to their moral right to political participation to justify their ille­ gal conduct. Some theorists argue, however, that in circumstances characterized by the moral necessity of collective action, and reasonable disagreement over the specific form collective action ought to take, the moral right to political participation cannot be adequately recognized in law but instead entails a limited moral right to civil disobedience. While the moral necessity of collective action requires that a settlement be reached regarding the form collective action ought to take, for example, through the enactment of various laws, such settlements almost inevitably impose an arbitrary end to debate and deliberation on this matter. The acknowl­ edgment of each agent’s claim to a voice in settling disputes over the design of the morally necessary col­ lective action schemes in which he has a duty to participate requires that debate be permitted to con­ tinue, though the state is also morally justified in acting on the basis of the decision reached when the initial deliberation is brought to a close. The inclusion of civil disobedience among the morally permissible methods for continuing debate rests on the moral necessity of reducing as much as possible the degree to which it is a matter of luck whether a person attracts majority support for her reasonable views regarding what justice requires, as well as the importance of taking into account the depth of a person’s conviction on a particular issue, and the ability to communicate their views that civil disobe­ dience gives to those who have little control over the media. Not every act of civil disobedience falls within the scope of the moral right to civil disobedience. Rather, only those acts of civil disobedience that are noncoercive, public acts of communication do so. Moreover, while advocates of a limited moral right to civil disobedience agree that it is a right to do wrong, they disagree over the nature of the claim that lies at the heart of this right. Some contend that it consists in a claim against the state that it should not punish civil disobedients for their illegal con­ duct (when it is noncoercive and communicative), though the state may still penalize them for their actions. Though both punishment and penalty involve an authority’s imposition of some cost or loss on a person, punishment also includes essentially the authority’s condemnation of an actor’s conduct, while penalty does not. The rationale behind the view that the limited moral right to civil disobedience consists of a claim not to be punished by the state, but no claim not to be penalized by it, is that

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while the state may not morally condemn people for choosing to employ civil disobedience as their means of political engagement, it can impose certain costs on those who do so in order to ensure stability, without which the state’s ability to facilitate morally necessary collective action would be severely compromised. Other proponents of a limited moral right to civil disobedience argue that this rationale conflicts with a proper understanding of moral autonomy, one that provides the basis for the right in question, and so argue that the right to civil disobedience involves essentially a claim against both punishment and penalty. On this view, while considera­ tions of political stability may sometimes warrant imposing significant fines or even periods of incarceration on civil disobedients, such treatment nevertheless consti­ tutes a violation of those actors’ moral right to civil disobedience, and so is an evil, even if a necessary one, rather than conduct consistent with respect for the civil disobedients’ status as autonomous agents.

Greenawalt K (1987) Conflicts of Law and Morality. Oxford: Clarendon Press. Harris P (ed.) (1989) Civil Disobedience. Lanham, MD: University Press of America. Lefkowitz D (2007) On a moral right to civil disobedience. Ethics: An International Journal of Social, Political and Legal Philosophy 117: 202–233. Lyons D (1998) Moral judgment, historical reality, and civil disobedience. Philosophy and Public Affairs 27: 31–49. Murphy J (ed.) (1971) Civil Disobedience and Violence. Belmont CA: Wadsworth. Plato Crito. Various editions. Rawls J (1971) A Theory of Justice. Cambridge: Harvard University Press. Raz J (1979) The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press. Simmons AJ (2003) Civil disobedience and the duty to obey the law. In: Frey RG and Wellman CH (eds.) Blackwell Companion to Applied Ethics, pp. 50–61. Oxford: Blackwell. Singer P (1973) Democracy and Disobedience. Oxford: Clarendon Press. Zinn H (1968) Disobedience and Democracy: Nine Fallacies on Law and Order. New York: Random House.

Biographical Sketch See also: Conscientious Objection; Political Obligation.

Further Reading Bedau HA (ed.) (1991) Civil Disobedience in Focus. London: Routledge. Brownlee K (2004) Features of a paradigm case of civil disobedience. Res Publica 10: 337–351. Dworkin R (1977) Taking Rights Seriously. London: Duckworth. Farrell DM (1977) Paying the penalty: Justifiable civil disobedience and the problem of punishment. Philosophy and Public Affairs 6: 165–184.

David Lefkowitz is Associate Professor of Philosophy and Coordinator of the Program in Philosophy, Politics, Economics and Law at the University of Richmond. He has published articles on the moral duty to obey the law and its limits in a number of journals, including Ethics, Ratio Juris; Law and Philosophy, Social Theory and Practice, and Philosophy Compass. He also writes on philosophical issues in international law, as well as the ethics of war and peace.

Civilian Populations in War, Targeting of G Palmer-Fernandez, Youngstown State University, Youngstown, OH, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Absolutism Absolutism holds that moral principles are unchanging, admit of no exceptions, and that some actions are morally wrong or right, regardless of their consequences. Absolutist moral theories typically deny what consequentialism asserts – that an action is right as a function of its outcome. Combatant A legal and moral category requiring that a person, to be considered a combatant, be commanded by another responsible for subordinates, have a fixed distinctive insignia recognizable at a distance, carry arms openly, and conduct operations in accordance with the laws and customs of war. Consequentialism Consequentialist moral theories hold that an act is right if it happens to bring about a better state of affairs than acting otherwise – if it will produce, or is intended to produce, at least a greater balance of good over evil as any alternative action. Just war tradition The dominant moral tradition in the West governing rights of states to go to war and the conduct of soldiers in war. It is divided into two parts:

Introduction Civilian populations have come under increasing risk of death in war. Blitzkriegs, obliteration bombing, the threat of nuclear annihilation, guerilla wars, terrorism, and eth­ nopolitical conflicts can easily create the impression that the immunity of civilians from deliberate military attack belongs to a distant past. However, it would be a mistaken impression. Despite the truth of the assertion that a dis­ tinguishing feature of modern war is the slaughter of the unprotected, the principle of civilian immunity originated in the sixteenth and seventeenth centuries, particularly in the writings of Francisco Victoria and Hugo Grotius, and gradually developed in the body of international law, the tradition of the just war, and the Hague and Geneva Conventions. However, the future relevance of this prin­ ciple is far from clear. If future wars take the form of widespread indiscriminate destruction by the use of nuclear weapons, terrorist attacks, or ethnic warfare, then the important distinction between combatants and civilians is bound to suffer, and the principle of civilian immunity could indeed belong to the past.

the jus ad bellum, governing resort to war, and the jus in bello, governing the conduct of war. Noncombatant immunity A jus in bello principle that distinguishes between combatants and civilians with the consequence that the latter, also called noncombatants or innocents, are immune from deliberate military attack. It is sometimes also called the principle of discrimination or civilian immunity, and it is generally regarded as an absolutist principle. Obliteration bombing Air-bombing raids, strategies, or policies that fail to distinguish between combatants and noncombatants. It is sometimes also called area, carpet, terror, or mass bombing. Many jurists and moralists consider this kind of attack a prohibited form of warfare. Principle of double effect A principle that distinguishes between the direct and indirect effects of an action. It asserts that (1) a person is morally responsible only for the direct (or intended) effects and (2) indirect (or unintended) evil effects (e.g., the death of civilians), when they are neither the means to or themselves the end, are allowable.

Thus, the clear definition and justification of the prin­ ciple of civilian immunity are major concerns of legal and moral theorists. However, they face a significant problem. The principle is useful only if we can establish a morally relevant distinction between combatants and civilians – that is, between who may and may not be deliberately killed in war. Civilians, this principle asserts, may not be deliberately killed in war because they are innocent. However, the meaning of innocence in war is controver­ sial. Absent of a clear definition of who is innocent and why, it will be very difficult to state who may and may not be deliberately killed in war.

Targeting Civilian Populations in War Civilians have always faced some risk of death in war. Sometimes they come under direct attack in order to kill soldiers taking refuge among them; at other times, they are directly attacked because of a critical importance identified with them – namely the morale of a nation, the collapse of which, it is said, leads to surrender. Such is

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plainly the case in sieges, in which war extends beyond the combatant population and the death of civilians is a means to hasten the enemy’s surrender. The long history of siege warfare suggests that attacking civilian popula­ tions is a time-honored method of war – for example, the siege of Jerusalem in 72 CE or Leningrad by German forces between 1941 and 1943, in which more than one million civilians died of starvation or disease. One distinguishing feature of twentieth-century war­ fare is the extent to which civilians are deliberately killed. The cities of Hiroshima and Nagasaki were each destroyed by a single atomic bomb. The weapon was new and revolutionary. However, the havoc, misery, and death this weapon caused represented only a more effec­ tive means of implementing a strategy that had vigorously been pursued against Germany in World War II by more conventional weapons, and perhaps had its origins when the Austrians, in the mid-nineteenth century, launched unmanned bomb-carrying air balloons at the city of Venice. The air balloon was a poor weapon. It was slow and drifted with the wind. However, it had the potential to cause significant panic – as it did, for example, in May 1915 when Germany bombed London by using a propel­ ler-driven dirigible. Years later, the bomber would prove decisive in modern wars. The capacity to strike from the air – with airplanes or missiles – is the single most impor­ tant element in twentieth-century warfare. It delivers the war directly to the enemy’s civilian population. Strategic Air War in Europe and Japan The experience of strategic bombing during World War II clearly shows how the horror of war moved from soldiers to civilians. When war broke out, major belligerents avoided air bombing the enemy’s heartland. However, deficiencies of bomb-aiming technology coupled with the circumstances in which missions were conducted brought a dramatic change in the war. By 1941, the British Air Ministry issued orders to Bomber Command that primary targets would no longer be conventional military objectives but the morale of the civilian population. Bomber Command was instructed to employ its power on residen­ tial targets: lay down a carpet of bombs over urban and industrial areas in which conventional military targets would be hit but only incidentally and as a bonus to the mass, indiscriminate killing of civilians. As a matter of policy, death and destruction were brought to civilians to destroy their morale. The climax of targeting civilians in Europe came at Dresden, near war’s end. On February 13 and 14, 1945, British and American air forces bombed this city teeming with homeless refugees from devastated rural towns and advancing Soviet armies. Approximately 50 000 civilians were killed in those raids. Targeting civilians culminated in a campaign of terror and fire bombing of Japanese cities. As in Europe, air

strategy first gave priority to Japanese air industry and advocated precision bombing of conventional military targets. However, attempts to strike these targets from high altitudes proved no more successful than in Europe. When Curtis LeMay assumed command of the 20th Air Force in Japan, he was instructed to give target­ ing priority to cities rather than industrial targets. Bomb loads would consist of incendiaries, with the purpose of striking at the will of the Japanese people to continue the war. With the success of limited fire-bombing raids in early 1945, the U.S. Air Force undertook similar raids against Tokyo in March 1945 that destroyed nearly two-thirds of the city’s commercial district and killed an estimated 100 000 civilians. This and other nighttime incendiary raids on Japanese cities killed more civilians than the atomic bombings of Hiroshima and Nagasaki, both of which were a late emphasis on the supposed effect of targeting civilian populations by indiscriminate attack.

The Threat of Nuclear Annihilation Targeting civilian populations with weapons of massive and indiscriminate destruction would be enshrined in nuclear strategy. As it emerged in the postwar years, U.S. policy of nuclear deterrence aimed at enemy cities. The single target list included cities in the former Soviet Union, China, and satellite states, and it made no distinc­ tion among military, industrial, and civilian targets. Other nations pursued their own nuclear programs. However, it became increasingly clear that targeting civilians would result in mutual suicide. A flexible nuclear response and a ‘no-cities’ strategy were therefore explored in the late 1950s and early 1960s. Robert McNamara, President Kennedy’s Secretary of Defense, announced in February 1961 that basic military strategy in general nuclear war would target conventional military objectives and seek the destruction of the enemy’s military and nuclear forces and not the civilian population. However, the idea was short-lived. By the fall of 1962, McNamara began to favor an entirely different strategic posture, and by the end of his tenure as Secretary of Defense he advocated the very ideas that he had criticized and dismissing the counter­ force/no-cities doctrine as having only a very limited role in deterring a nuclear-armed adversary. Subsequent developments in nuclear strategy empha­ size a selective and flexible response to enemy aggression or some form of massive retaliation in which cities are targeted. The former has played an important role in nuclear strategy. Yet these doctrines are fraught with dan­ gerous destabilizing first-strike possibilities and retain the threat of widespread civilian slaughter by the possession of a large nuclear reserve force. McNamara may well have been correct that nuclear forces are totally useless, except to deter one’s enemy by the threat of massive retaliation.

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Ethnopolitical Conflicts and Terrorism To appreciate fully the extent to which civilian populations are targeted in modern war, it is necessary to consider the recent rise of ethnopolitical conflicts and terrorism. Since the end of World War II, both have become increasingly prominent in many areas of the world and, some observers contend, indicate that many of the wars of the near future will not be fought between nation-states with armed forces as their agents fighting along geopolitical lines. Instead, wars in the twenty-first century will likely occur between groups that define themselves along ethnic (sometimes also reli­ gious) lines and make claims on behalf of collective interests against nation-states and other political actors. The facts support those contentions. First, the num­ ber of groups involved in ethnopolitical conflicts increased dramatically in the post-World War II per­ iod from 26 between 1945 and 1949 to 70 in the 1990s, with the greatest increase in the 1960s and 1970s (36 and 55, respectively). Second, the 50 ethnopolitical conflicts in the 1993–94 period alone caused approxi­ mately four million deaths, the vast majority of which were civilian, and displaced nearly 27 million people. Third, this type of conflict is very likely to increase in the near future because there is greater contention for power among ethnic groups in several of the world’s regions. One can anticipate that forced resettlements, mass repression, genocidal massacres, and other forms of political violence will directly affect very large numbers of civilians. Terrorism became a powerful global force after 1945, and as a tactic used by nationalists groups, it can claim some successes – for example, in Israel and Ireland. Other groups have been able to sustain campaigns for extended periods of time, such as the ETA in Spain, Hamas and Hezbollah in Palestine, and Tamil Tigers in Sri Lanka. Although terrorism has a long history, it is an ambiguous term because it can describe a way of governing or fighting. Either way, what is distinctive about terrorism is the use or threat of force against civilians to compel a political objective. During the past several decades, it has taken a distinctively religious form, giving violence more the character of a sacramental act or religious duty than a means to a strategic political objective and dramatically increasing civilian casualties. This is obvious not only with the worldwide al-Qaeda network but also with the Christian Identity movement in the United States (e.g., the 1995 bombing of the Murrah Federal Building in Oklahoma City) and ultranationalist movements in Israel.

Protecting Civilian Populations Recent developments in military technology and strategy make possible an unprecedented level of destruction. Incendiaries along with gas, chemical, and nuclear

weapons and the capacity to strike from the air, coupled with a strategy to destroy industrial centers and weaken the enemy’s morale, create a kind of warfare that brings death to combatant and civilian alike. These facts have led contemporary jurists and moralists to stress a moral prin­ ciple that appeared first among several Spanish theologians of the sixteenth century, was developed by Dutch jurists of the seventeenth century, and later was incorporated into the body of international law. Since the 1970s, the principle of civilian immunity has taken special importance. The Just War Tradition and Civilian Immunity Just war tradition divides into two sets of principles usually referred to in Latin: jus ad bellum, governing the resort to war, and jus in bello, governing the conduct of war. For a war to be just, several conditions must be satisfied: It must (1) have a just cause, (2) be waged with right inten­ tion, (3) declared by a legitimate authority, (4) have a formal declaration, (5) have reasonable hope for success, (6) be the last resort, and (7) satisfy the requirement of proportionality. Even when the jus ad bellum conditions are met, there remain principles of the jus in bello: non­ combatant immunity – civilians must not be deliberately attacked or killed – and proportionality – the means employed in fighting must not be so destructive as to outweigh the good to be achieved. Since the sixteenth century, the principle of civilian immunity has defined the most important limit in war. The principle depends on the distinction between com­ batants and civilians, and it is interpreted as an absolute prohibition against deliberately killing civilians, who are usually referred to as innocent, in contrast to combatants, who are referred to as guilty or culpable and are therefore legitimate targets of deliberate attack. Earlier formulation of the just war had little resembling this prohibition. Some argue that Augustine thought there was little, if anything, wrong with the deliberate killing of civilians if the neces­ sities of a just war demand it. For Augustine, so it is argued, the requirement to vindicate justice obviates all other considerations, even when the innocent may suffer. Some improvement on the protection of civilians in war is found in thirteenth-century theologian Thomas Aquinas. However, it must be weighed against his doctrine of double effect, which allows for the incidental or unin­ tended killing of civilians in war – usually referred to as collateral damage. It was the Spanish theologian Francisco Victoria who first formulated a strong prohibition on killing civilians by linking it to the prohibition on killing innocents. The latter he defined as all persons not directly taking part in the waging of hostilities and included in it all children, women, farmers, foreign travelers, clerics, and what he referred to as ‘‘the whole of the peaceful population.’’ He

462 Civilian Populations in War, Targeting of

understood, however, that this prohibition is hardly attainable in all circumstances and that in war sometimes innocents are killed. To determine whether the killing of innocents is ever permissible, Victoria relied on Aquinas’ principle of double effect. Although Augustine, Aquinas, and Victoria were the formative figures in the medieval and early modern for­ mulation of the just war, it is the Dutch jurist Hugo Grotius who exercised the most profound influence on the modern development of the tradition. Much like Victoria, he lays great emphasis on the immunity of civilians from direct attack. But again, immunity is not absolute. It is to be weighed against other values and the necessities of war. An important topic of contemporary debate is whether a clear and morally relevant distinction can be made between combatants and civilians – between who may and who may not be deliberately killed in war. Plainly there are persons who fall into gray areas such that their immunity from deliberate attack might not be clearly established – for example, musicians in an army band, cooks, electricians, and others whose roles may not have a distinctively military character or civilians working in munitions or airplane factories, as well as research engi­ neers and physicists improving weapons delivery systems whose labors contribute much to the war effort. Despite these areas of indeterminacy, it is assumed that this dis­ tinction is morally relevant and can and ought to be made. The distinction between combatants and civilians is recognized by the Hague Conventions of 1899 and 1907 and is explicitly incorporated into the 1977 provision attached to Article 51 of the Geneva Convention of 1949. However, from the moral point of view, simply drawing a distinction is not sufficient to establish that crucial moral difference wherein the former may and the latter may not be deliberately killed. What needs to be determined is why it is morally wrong to deliberately kill civilians and why it is permissible, and indeed some say a positive duty, to kill combatants. The standard answer is that civilians may not be deliberately killed because they are innocent. What is the meaning of innocence in war? Innocence in War Three views are available to determine innocence in war – the moral, collective responsibility, and the role-functional views. Each determines innocence and guilt – who may and may not be killed – in different ways. The moral view

The moral view determines innocence and guilt on the basis of the justice or injustice of a war. The important question of who is and who is not a legitimate target of deliberate attack is therefore a function of the (in)justice of a war. Soldiers on the unjust side of a war lack the

necessary condition of just cause and are guilty of fighting an impermissible war, even when they fight in accordance with the rules of war. Moreover, combatants fighting on the unjust side act (almost) as badly in killing enemy soldiers as if they killed children, the aged, and the infirm. Whatever they do in such a war, they do without justice. Those who fight for a just cause, on the other hand, are morally innocent, and when they fight in accordance with the rules of war, they fight on behalf of justice. There are objections. First, it is not always obvious where justice lies. There will be cases in which the injus­ tice of a belligerent is clear and we can maintain the criterion of fault as the essence of the just war. Yet this criterion might not be discernable in every war, and we might have to entertain the possibility of doubt and ignorance regarding a just cause. Victoria, for example, long ago stressed the difficulties in establishing objec­ tively the antecedent causes to a war and, moreover, allowed soldiers to fight in an unjust war when the injus­ tice is known only to their ruler. Thus, even in an objectively unjust war, soldiers may lawfully fight. However, on the moral view, when the criterion of fault or justice in a war cannot be clearly established, it is impossible to determine who the innocent and the guilty are and, by extension, who may and may not be deliber­ ately killed. A second objection is as follows. There is the assump­ tion, at least in modern democracies, that citizens have a positive duty in justice toward the state – for example, to obey its laws. If citizens fight in a war in accordance with this duty, then they cannot be acting against justice, and all soldiers who fight from duty are innocent and thereby immune from deliberate attack. We may suppose, how­ ever, that there is a duty prior to obedience to the state to discern the justice of a war. Citizens, before becoming soldiers, must to the best of their ability determine this important matter. Those who do not and simply obey the state might be guilty of an injustice, whether or not their cause is just, and are thereby legitimate targets of delib­ erate attack. On the other hand, those who do come to the conclusion that their cause is just, whether or not it is objectively so, are innocent soldiers and may not be deliberately killed. Of these there may be very many in any war. The collective responsibility view

Many just war theorists assume that civilians of nations at war are mere bystanders to their government’s hostilities, with their role much like that of medieval serfs; hence, civilians have no responsibility for war. However, the nature of war changed dramatically with the rise of demo­ cratic regimes. Now it is the people’s will represented by government and not the monarch’s. On this account, civilians share some responsibility for their government’s actions because the actions are never the result of any one

Civilian Populations in War, Targeting of 463

individual. Rather, they are a joint venture of many acting in concert for a common purpose. Given the possibility of free action in a democratic regime, civilians bear a high level of responsibility. When they support an unjust war, does it make sense to say that they are immune from attack because they are not bearing arms? The collective responsibility view maintains that those who participate in a collective project are morally responsible for it and bear praise or blame. If the collec­ tive project is an unjust war, then civilians who perform distinct acts on behalf of that project share responsibility for the injustice of the war. However, there is an impor­ tant problem. One cannot assume that all civilians of a nation support an unjust war, and so one has to distinguish between those who do – and share responsibility – and those who do not – the innocent. Yet there is no practical way to do that. When possible, however, this view main­ tains that those who are collectively responsible for injustice – soldier or civilian – may be deliberately killed. The role-functional view

An alternative view determines innocence on the basis of a person’s participation in the business of war. To say that some are innocent is another way of saying that they are harmless and not involved in violent action. The root of the word has this sense to it: Nocentes, a Latin word mean­ ing harmful, coupled with the prefix non or ‘in’ yields ‘harmless’ or ‘one who does not injure.’ Thus, although it is always wrong to deliberately kill the innocent, some people, because of what they do, lose their immunity from deliberate attack. Some just war theorists have therefore assumed that the terms ‘innocent’ and ‘guilty’ are equiva­ lent to a person’s role as civilian or combatant, respectively. According to this view, innocent persons are not engaged in an activity that is violent or threatening and do not contribute directly to, nor are they within a chain of command that may engage them in, war-related vio­ lence. The guilty, on the other hand, are those who put in mortal jeopardy others’ lives or contribute in a relevant way to those who do. There are then two major categories of people in wartime: combatants, who are guilty of pos­ ing an immediate mortal threat, and civilians, who are innocent of posing any such threat. In the former cate­ gory, we might include certain civilians who are not combatants strictly speaking – for example, munition workers, engineers, and physicists who work in the war industry, and perhaps political leaders who initiate wars and order soldiers to fight in them. In the latter category, we might include military chaplains, cooks, and medical personnel who do not contribute directly to the war effort but assist the soldier as a person. Even when the distinction between combatants and civilians is established, one must explain what is special about a role such that all combatants may be killed,

whereas civilians may not. Merely occupying a role is not sufficient to justify killing. Unlike the moral view, the role-functional view justifies killing not on the model of punishment for some fault or injustice but, rather, on selfdefense. The implication here is that killing is justified only to repel an immediate mortal threat to one’s life and that it is otherwise unjustified. However, if self-defense provides the model on which killing in war is justified, we have to admit that soldiers seldom, if ever, go to war to defend themselves and that therefore there are relatively very few cases when killing in war is justified – the threat justifying self-defensive action must be immediate and lethal. We would need instead a doctrine of collective or national self-defense. Direct Killing of Civilians For most just war theorists, the principle of civilian immunity is absolutist – it cannot be set aside, regardless of the consequences. However, there are some who acknowledge the wrongness of violating civilian immu­ nity and argue that in some special circumstances it is not always wrong to do so, and that supreme emergencies are an exemption. Supreme emergency exemption

The idea of a supreme emergency exemption was intro­ duced by Michael Walzer and endorsed by John Rawls. It is derived from Winston Churchill’s description of Britain’s predicament in 1939. Walzer contends that unless Bomber Command was used systematically against German cities, Britain would very likely suffer defeat and an immense evil power would be let loose on the world. The bombers coupled with a policy of terror bombing of German civilians offered the only hope to avoid defeat. The choice was either to kill tens of thou­ sands of civilians – children, the aged, and the infirm – in order to stop a Nazi triumph or let an age of barbaric violence come to every nation in Europe. In the life of nations, there are rare moments of supreme emergency when the rights of innocent persons must be violated if a nation is to avoid defeat. In those rare moments, military success might be so critically important that justice is more properly measured by the evil one prevents than by evil done. However, before one can justify the deliberate killing of civilians, a nation has to face an evil of an ultimate nature. Simple military necessity will not do. The threat has to be such that defeat of the defending nation will result not merely in the establishment of a new balance of power but also in the triumph of evil – of a power so terribly awful that everything decent is radically jeopar­ dized. Accordingly, the threat must be (1) imminent and (2) not simply the loss of honor but of a most serious nature.

464 Civilian Populations in War, Targeting of

The doctrine of supreme emergency is subject to various lines of criticism. One can argue that the exemption is so radical that the need for it must be shown by actual histor­ ical experience. Walzer provides only one example. It might not be a very good one because it is not obvious that Britain faced the imminent catastrophe suggested by Churchill’s expression – perhaps it was a rhetorical flourish meant to enlist support for a very controversial policy. Nor is it obvious that political communities ever face such emergen­ cies. If supreme emergencies do not ever really exist, there is no sense to the exemption. Indeed, it is dangerous to intro­ duce it, setting aside the rules of war. For example, in World War II terror bombing of German cities led to the fire bombing of Japanese cities and facilitated the atomic bomb­ ings of Hiroshima and Nagasaki. Once an exemption is allowed, it is difficult to avoid further ones. There is another problem. For Walzer, the rules of war are derived from individual rights. These rights, he argues, are more basic than considerations of utility. Yet when the stakes are very high, utility has a certain priority over individual rights. Here, if anywhere, the ends to be achieved justify the means. However, if utility overrides individual rights when a nation faces great disaster, why not follow utilitarian calculation all the way and consider the interest not only of one but also of all communities, of the whole human race? If we consider only the interests of one nation, such as Britain, we have to show why it is morally preferable that civilians in this rather than in another nation, such as Germany, survive. Moreover, whether an absolutist moral principle, civilian immunity, and utility can be reconciled is a matter of great theore­ tical importance. Each contains quite different ideas about the content of morality. The first clearly is concerned with what we do to others, whereas the other attends to what happens to certain values and interests when we adopt one course of action over its alternative. When and how we choose one understanding of morality over another is far from settled in the scholarly literature. Non-state violence

There are forms of political violence other than war between states that deliberately kill civilians. Terrorism is one of those forms. Although there are vexing questions regarding the definition of terrorism, the application of just war principles to acts of terrorism yields an unequivocal condemnation. To the extent that terrorism is designed to create fear and despair among civilians by sabotage, assassi­ nation, subversion, and other violent acts with indifference to the legal and moral rules governing the use of force, terrorism is condemned on jus ad bellum and jus in bello grounds, for example, legitimate authority and civilian immunity. The international law of war concurs with this judgment, and Protocol I of 1977 to the Geneva Conventions extends no legal protection to terrorists. Violence is sanctioned when carried out between

combatants who wage hostilities in accordance with the rules of war and distinguish themselves from civilian popu­ lations. Terrorists, however, do not fight in accordance with those rules, nor do they distinguish themselves in the rele­ vant manner. However, as some commentators contend, there may be a bias in the just war tradition and the law of war in favor of the system of states such that violence by non-state groups is immediately rendered an impermissible use of violence. Such bias, some say, is fairly obvious in standard definitions of war that allow only states to engage in armed hostilities by armies of combatants as their agents recognized as such by international conventions. The same conclusion follows from the principle of civilian immunity applied to ethnopolitical violence. As noted previously, since the end of World War II, violence between ethnic groups has been steadily increasing, and total civilian casualties number in the millions. Gradually, we are moving from nation-state conflicts fought along national borders to conflicts in which the borders are determined by linguistic, religious, and ethnic differences, for example, between Hindus and Muslims in India, Turkic Muslims and Slavic Orthodox Russians in Central Asia, and Orthodox Christians and Muslims in the former Yugoslavia. Indeed, we face a very troubling type of armed conflict without governments and armies as their agents fighting among themselves according to established rules of war. In this type of conflict, we encounter a breakdown of the traditional division of gov­ ernment, armies, and civilians. To the extent that such conflicts do not adhere to this important division and deliberately kill civilians because of their ethnic or reli­ gious identity, they are not a form of war but of murder. There are, nonetheless, some possible lines of justifica­ tion for terrorism. For example, some argue that not all civilians are entitled to protection under civilian immu­ nity because they might share responsibility for sustaining injustice; in other words, they are not innocent and so deliberately killing them is not murder. Moreover, the justification of political violence is to be determined not by its target but, rather, by its goal. Thus, when justice can be achieved only with selective violence – assassination, sabotage, and destruction of property – then terrorism might be a justifiable means. Some also argue that terror­ ism might be justified when a political community is in imminent threat of a great danger – when it is in a condition of supreme emergency, setting aside the prin­ ciple of civilian immunity. Indirect Killing of Civilians Deliberately killing innocent persons is unjustified – it is murder. However, it is said that in some circumstances the killing of an innocent person, although reasonably foreseen as a result of the course of action one undertakes, is not murder because death was neither the means to

Civilian Populations in War, Targeting of 465

some end nor itself the end one intended to bring about. There are a number of controversial issues regarding life and death that are frequently discussed this way, includ­ ing therapeutic abortions and palliation of a dying patient by use of morphine, thus hastening the patient’s death, or some collateral killings of civilians in war. In cases such as these, the death of those who have done no harm – who are innocent – although tragic and regrettable, is said to be permissible. It is the principle of double effect that explains this permission. The principle distinguishes between the intended (or direct) and unintended (or indirect) consequences of an act. For example, I perform an act A that intends good G and foresees some evil effect E. Assume that I want to bring G about and have no wish for E, nor is E part of my intentions. E just happens. The principle of double effect states that I am not morally responsible for E, which is merely a side effect even when that evil effect is foreseen by me. However, matters are different when E is my intention or a means for G, or when E is disproportionate to G. When E is my intended end or a means to some end, or when it is needless, the principle condemns my action. For example, orders are issued to bomb certain important enemy military targets, such as a command, control, and communications center, munitions depots, and several highways and bridges used for military transport. Combatants in and around these targets are killed, and a number of civilians are also killed because they either live or work near the targets. It is morally prohibited to deliberately kill them. However, the principle of double effect states that absent the intention to kill them, their death, although an evil and foreseen by me, is not a moral evil but a side effect of a legitimate act of war. That form of reasoning was evident, for example, in official statements by the U.S. chain of command in the 1991 war against Iraq. It reported that choice of targets was designed to avoid killing civilians. Thus, the principle of civilian immunity was adhered to. Moreover, many of the weapons used in that war – those called ‘smart weapons’ – gave the assurance that hitting targets within cities would not be hitting the cities (i.e., civilians) themselves. There was no intention, nor need, to rely on World War II strategies of obliteration – terror bombing of civilians. Yet continual strikes, often of the same target, particularly in Baghdad near civilian areas, killed a significant number of civilians. Is there a threshold at which indirect and foreseen effects gain at least the appearance if not the reality of intended aims, when it no longer makes sense to say that civilian casualties are collateral or incidental to permissible conduct in war? At what point do collateral civilian deaths become disproportionate to legitimate military conduct? Combatant casualties in that war were high. Intelligence sources estimated that approximately 150 000 Iraqi soldiers were killed. The same sources esti­ mated that civilian casualties may have been equal in

number to combatant deaths. Is this number of civilian deaths acceptable on proportionality grounds? Suppose that U.S. bombing did not intend to kill civilians, only to destroy various aspects of Iraqi infrastructure having some military value. How shall we think of a highway or bridge, an electric power plant, or sources of communica­ tion that have some military value but are used regularly by civilians? What if the destruction of those targets has a greater impact on a society than on its armed forces? Are these civilian or military targets? These remarks suggest the following criticism of the principle of double effect. It is extremely difficult to dis­ tinguish the genuinely intended from unintended effects of a course of action. Moreover, that our actions often have more than their intended effect does not necessarily mean that we have no responsibility for the unintended ones. When we know our action will kill innocent persons, even when they are indirect, it is too narrow a sense of respon­ sibility to say that those deaths are permissible. To be sure, responsibility may admit of degrees. In some circum­ stances, a person may be less responsible for what is allowed to happen than for what he or she does. That is an important distinction. However, it is a distinction some­ times difficult to accept. It is not too difficult in a case in which the unintended effect is accidental (e.g., one did not know or had no reason to believe civilians were in or near a target) and one was neither reckless nor negligent. However, if one knows civilians are present and any attack on the target will kill (some of) them, the conclusion that their death was part of the intention is unavoidable. See also: Military Ethics; Nuclear Deterrence; Nuclear Warfare; Terrorism; Warfare, Codes Of.

Further Reading Best G (1980) Humanity in Warfare. New York: Columbia University Press. Detter De Lupis I (1987) The Law of War. Cambridge, UK: Cambridge University Press. Holmes RL (1989) On War and Morality. Princeton, NJ: Princeton University Press. Howard M, Andreopoulos GJ, and Shulman MR (eds.) (1994) The Laws of War: Constraints on Warfare in the Western World. New Haven, CT: Yale University Press. Johnson JT (1981) Just War Tradition and the Restraint of War. Princeton, NJ: Princeton University Press. McKeogh C (2002) Innocent Civilians: The Morality of Killing in War. New York: Palgrave. McMahan J (2009) Killing in War. New York: Oxford University Press. Miller RB (1991) Interpretations of Conflict: Ethics, Pacifism and Just War Tradition. Chicago: University of Chicago Press. Palmer-Fernandez G (ed.) (2004) Encyclopedia of Religion and War. New York: Routledge. Primoratz I (ed.) (2004) Terrorism: The Philosophical Issues. New York: Palgrave. Primoratz I (ed.) (2007) Civilian Immunity in War. Oxford: Oxford University Press. Rodin D (2002) War and Self-Defense. Oxford: Oxford University Press. Slim H (2008) Killing Civilians: Method, Madness, and Morality in War. New York: Columbia University Press.

466 Civilian Populations in War, Targeting of Van Creveld M (1991) The Transformation of War. New York: Free Press. Walzer M (1977) Just and Unjust Wars. New York: Basic Books.

Relevant Websites http://www.iep.utm.edu/justwar – Internet Encyclopedia of Philosophy, ‘Just War Theory.’ http://www.justwartheory.com – JustWarTheory.com.

Biographical Sketch Gabriel Palmer-Fernandez (Ph.D., Harvard University) is Director of the Dr. James Dale Ethics Center and Professor of Philosophy and Religious Studies at Youngstown State University. He has published several books, including the Encyclopedia of Religion and War (Routledge), and articles in scho­ larly journals on the morality of political violence, biomedical ethics, and the history of Christian ethics.

Climate Change L Witthøfft Nielsen, National University of Singapore, Singapore ª 2012 Elsevier Inc. All rights reserved.

Glossary Climate adaptation Adaptation means adjustment or modification of something in order for it to be better fitted to the context of which it is part. Climate adaptation refers to adjustments of physical conditions in terms of practical measures aiming at managing natural resources, protecting species and ecosystems, as well as securing land use in order to cope with the consequences of climate change. Climate convention The United Nations Framework Convention on Climate Change (UNFCCC). Established in 1992, the objective of the convention is stabilization of greenhouse gas concentrations in the atmosphere through reduction of greenhouse gas emissions. The conditions and targets for reduction of emission levels are specified in the Kyoto Protocol. Climate mitigation The idea that climate changes, caused by global warming, can be slowed down and the climate stabilized through political and practical measures established for the purpose of reducing the level of greenhouse gas emitted into the atmosphere. Distributive justice The idea of just distribution in terms of equity and fairness in allocation of goods and burdens between members of a community. In the context of climate change, distributive justice is discussed in relation to mitigation and adaptation, where it refers to distribution of emission units per country and of economic costs related to practical mitigation and adaptation measures. Global warming Rise in average global temperature due to impact from forcing mechanisms such as increased solar activity and an increase in the concentration of greenhouse gasses in the atmosphere. Positive forcing tends to warm the surface of Earth, whereas negative forcing tends to cool it. Greenhouse gasses (GHGs) Gasses occurring in the atmosphere with varying ability to absorb or hold heat. Gasses such as carbon dioxide, methane, and nitrous oxide occur both naturally in the atmosphere and as a result of human activities such as fossil fuel use, burning

Introduction Climate change refers to any change in climate over time, whether due to natural variability or as a result of human activity (definition used by the Intergovernmental Panel on Climate Change (IPCC)).

of solid waste, deforestation, and agriculture. Other types of GHGs, such as hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, result exclusively from human industrial processes. Intergenerational justice Refers to justice in terms of fairness and equity between generations. In the context of climate change, the concept refers to rights between generations. This concept of justice is often used in discussions about mitigation, in which it refers to a moral responsibility of present generations to ensure that the fulfilling of their needs does not compromise the rights of future generations to fulfill their needs in terms of access to basic resources and the possibility to maintain a just basic structure over time. Kyoto Protocol The Kyoto Protocol from 1998 is an international agreement that translates principles formulated in the UNFCCC into concrete targets for reduction of GHG emission of (an average of) 5% below the 1990 level. The Kyoto Protocol is ratified by 184 countries that are all parties in the UNFCCC. It sets targets for a period of 5 years from 2008 to 2012 for the purpose of reducing emission of GHG. Future emission targets are discussed by the Conference of Parties (COP) at annual meetings. COP15 took place in Copenhagen, Denmark, in December 2009. Sustainable development A development where the needs of present generations do not compromise the needs of future generations in terms of access to and availability of natural resources (definition by the World Commission on Development and Environment in the report Our Common Future, 1987). United Nations Intergovernmental Panel on Climate Change (IPCC) Established in 1988, IPCC is the leading international body for scientific assessment of climate change. IPCC has published four assessment reports – in 1990, 1995, 2001, and the latest (AR4) in 2007. The work of IPCC is divided among three working groups assessing (1) the physical scientific aspects, (2) impacts, adaptation, and vulnerability, and (3) the prospects of mitigation of climate change.

Climate change due to human activity is generally referred to as anthropogenic climate change. With the Fourth Assessment Report (AR4) from 2007, the IPCC confirmed the place of anthropogenic climate change on the urgent international political agenda. The problem of climate change is ethically complex because it raises

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concerns not only with regard to human welfare but also with regard to moral responsibility to protect the envir­ onment as well as future generations. Among the ethical issues that relate to climate change are concerns about moral responsibility and liability for anthropogenic climate change, potential injustice and harm to future generations due to exploitation of natural and atmospheric resources (i.e., limits for how much greenhouse gas the atmosphere can consume without causing irreversible harm), and fairness and equity in distribution of economic burdens related to practical mitigation and adaptation measures. The issues relate to a virtue-based ethical tradition concerned with distribu­ tive justice. This type of justice refers to the distribution of goods and burdens. A just distribution can be based on different principles, emphasizing the element of equity and fairness. Another type of justice that relates to climate change is the idea of intergenerational justice, which finds its theoretical basis in, among others, Rawls’ theory of rights. Other ethical issues arising from the problem of climate change concern the moral incentive to ensure biological conservation in order to protect species and ecosystems from irreversible harm. These issues relate to the traditional distinction in environmental ethics between anthropocentrism and ecocentrism. Whereas the first tradition focuses on the value that the environ­ ment represents to humans, the second focuses on the value that species and/or ecosystems represent in them­ selves. Last, the traditional distinction between deontology (duty-based) and consequentialist moral the­ ory applies to the discussion about moral responsibility in relation to anthropogenic climate change as well as to the discussion about protection of human welfare in relation to adaptation. A deontology-based moral theory judges the action as morally right or wrong from the incentive with which the action was carried out. A consequentialist moral theory judges the action according to the outcomes. This article identifies and describes the main ethical issues as they relate to the problem of climate change, including the specific aspect of anthropogenic climate change. Although one should not try to map the ethical issues over-neatly onto only one or another of the IPCC’s three working groups assessment reports, it may be rea­ sonable to relate selected ethical issues to each while remaining conscious of the overlap. In the following, the different ethical issues that apply to the problem of climate change are mapped under three headings: (1) The scientific basis of climate change, under which the scientific outline of anthropogenic climate change is described and moral responsibility is discussed in relation to the problem of scientific uncertainty and complexity; (2) mitigation, outlining the justification for mitigation of climate changes in the Climate Convention and the Kyoto Protocol, the ethical basis of the idea of sustainability, and the concept of intergenerational justice; and

(3) adaptation, outlining how different ethical approaches apply to the discussion about biological conservation as part of the effort toward adaptation to climate change and the issue of distributive justice in relation to practical adaptation for protection of human welfare.

The Scientific Basis of Climate Change The scientific basis of climate change outlined in the IPCC’s assessment report AR4 from 2007 has given rise to renewed discussion as to how these challenges can best be met in terms of adaptation and mitigation measures. The debate on how to respond seems to suggest that climate change requires local, regional, and global responsibility in terms of remedial actions. The following section focuses on the scientific basis of anthropogenic climate change and presents the conditions for assigning a moral responsibility to ensure climate mitigation and adaptation due to the anthropogenic aspect of climate change. Understanding the Problem of Anthropogenic Climate Change The biophysical information outlined here on mitigation and adaptation is based on the scientific observations and predictions for climate change presented in the three working groups’ reports of the IPCC’s AR4. During the past 100 years, the linear average global temperature has increased by 0.74� C (1906–2005); however, the linear trend in global temperature increase per decade observed during the past 50 years is twice that for the past 100 years. The global warming process is due to an increase in radiative forcing from solar radiation and greenhouse gasses in the atmosphere. The greenhouse gasses are said to have a radiative forcing effect because they are absorbing and re-radiating the long-wave infrared radia­ tion from the sun, which means that they contribute to keeping the heat close to the surface of the earth. This process is what in popular terms is described as the green­ house effect, and it is predicted to result in significant climate changes. The current concentration of greenhouse gasses in the atmosphere far exceeds the natural range as determined by ice core samples covering a period of up to 650 000 years. According to the IPCC’s findings, the increase of carbon dioxide in the atmosphere, registered since the beginning of the industrial period (defined as starting after 1750), is primarily due to emissions from fossil fuel use and land use change. The increases in methane and nitrous oxide are mainly due to agriculture. The forcing effect from carbon dioxide alone has increased by 20% in the period 1995–2005.

Climate Change

Among some of the most significant impacts observed are increases in average temperatures in the global ocean, which cause seawater to expand. Together with the decrease in ice caps and melting glaciers, sea levels rose with an average of 1.8mm/year in the period from 1961–2003, but with a higher average of 3.1mm/year in the decade between 1993–2003. Changes in Arctic tem­ peratures are seen to cause a decrease in areas covered by seasonal frost. Likewise, permafrost layers are expected to increase in thaw depth in some areas due to an increase in temperatures on top of the layer. Glaciers and mountain snow cover have declined worldwide, causing increased risk of flooding due to glacier lake outburst. In areas such as North and South America, northern Europe, and areas of Asia, significant increases in precipitation have been registered, whereas other areas, such as the Sahel, the Mediterranean, and areas of Africa and Australia, are experiencing a marked decrease in precipitation. Furthermore, increases in the frequency and length of drought periods have been observed in both subtropical and tropical areas of the world. Anthropogenic Climate Change and Moral Responsibility According to the Working Group I report in AR4, human emissions of greenhouse gasses have already resulted in climate changes, and the predictions of future changes are of such severe character that they will evidently cause harm to both humans and the environment. The pre­ dicted impacts of anthropogenic climate change for the near and distant future have given rise to discussion regarding whether a moral responsibility can be assigned to current generations of people for the harm caused due to past and present greenhouse gas emissions. Moral responsibility can be described as a response to matters of facts, involving a normative prescription of blame or fault. In this context, it is the scientific outline of anthro­ pogenic climate change that is brought forward as the reason for prescribing a moral obligation to compensate for harm caused by establishing practical measures to ensure mitigation and adaptation. Assigning a moral responsibility on the basis of the causal relation between human emissions of greenhouse gasses and the climate changes taking place is not without complications, how­ ever: Who is to be blamed? To what extent can present generations of people be held liable for climate changes now and in the future? Most individual actions that involve emission of greenhouse gasses, such as driving a car or using electri­ city, are not done with the intention to cause harm and may not even be anticipated by the individual as contri­ buting to climate change. It can, however, be argued that the individual contribution to greenhouse gas emission is to be interpreted as a form of omission. Whether one

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should be made responsible for acts of omission in relation to climate change depends on the ethical approach taken. A deontological approach that judges the act on the basis of the intention with which the act was carried out may be less likely to claim a person responsible in such cases, whereas a consequentialist approach that judges the act on the outcome does not distinguish between intended actions and actions by omission and is therefore likely to claim that each individual is morally responsible for the harm caused to the climate through his or her contribu­ tion to greenhouse gas emissions. Assigning moral responsibility to the individual in this way, however, is questionable because it is arguably less the individual’s contribution but, rather, the contributions of all to greenhouse gas emissions that can be said to cause harm by contributing to the global warming process and the climate changes that follow from it. Instead, it may be reasonable to assign responsibil­ ity collectively by making groups, rather than individuals, responsible for the common contribution to harm. The idea of collective moral responsibility is reflected in the Kyoto Protocol, which takes as its starting point that developed countries are responsible for significantly larger emissions of greenhouse gasses per capita in the past and present than are developing countries. The causal relation between greenhouse gas emission and climate change together with the size of the contribution of greenhouse gas in the past and present is used as an argument for assigning a moral and legal responsibility to these countries in terms of an obligation to establish practical mitigation and adaptation measures. The collective responsibility described here is founded in the idea of justice, deli­ neated in the United Nations Framework Convention on Climate Change (UNFCCC). The convention reflects the idea of distributive justice, which is an aspect of virtue ethics commonly applied in relation to climate change. It is reflected in the Climate Convention’s emphasis on fairness and equity as the basic principles to be pursued in the distribution of goods and burdens between countries. A different out­ line of collective responsibility is reflected in the principle of sustainability, also outlined in the UNFCCC, which suggests a collective responsibility of current generations to ensure minimal harm for future generations. This relates to another aspect of justice commonly associated with climate change, namely the idea of intergenerational justice, and it gives rise to the question as to how far the responsi­ bility stretches and whether it is possible to assign a moral responsibility in the present for future genera­ tions. This question is particularly relevant in the context of mitigation and is explored more in-depth later.

470 Climate Change

Scientific Complexity and Uncertainty and Moral Responsibility Recognition of the problem of climate change and the motivation to respond to it are highly dependent on the evidence that science can provide. However, nat­ ural and human factors and the complex interplay between them involve scientific uncertainty. Even if anthropogenic climate change does not exist, natural causes will impact on the environment and on human welfare. The aspect of uncertainty and complexity in the climate change debate gives rise to questions with regard to ethical responsibility in relation to ethics of scientific belief in anthropogenic climate change and scientific uncertainty in climate change. Ethics of scientific belief

For approximately 30 years, scientists have been debating whether or not there is sufficient scientific evidence for concluding that anthropogenic climate change exists. Today, only a small minority of scientists are not con­ vinced that the root of the problem is anthropogenic. However, there is little agreement with respect to the extent of human impact or how it can be dealt with in terms of practical measures for adaptation and mitigation. Although scientific uncertainly continues to prevail in climate change debates, there have been many opportunities for stakeholders, such as industries, poli­ ticians, and environmental commentators, to push their partisan message. They have often been accused of communicating one side of the story and using scientific data selectively for the purpose of construct­ ing a ‘truth’ in order to protect or promote their own interests of various kinds. The question regarding the moral ground for assigning a responsibility in terms of blame in such cases has thus been raised. Given the level of complexity of the scientific basis of climate change, there is unlikely to be one ‘truth’ and, indeed, perhaps many myths. However, the complexity of climate change in itself calls for a moral responsibility in terms of ensuring transparency with regard to the beliefs one promulgates – that is, professing the scien­ tific grounds to one’s beliefs as well as one’s motives. Scientific uncertainty in climate change

Scientific predictions of climate change impacts show a high level of serious and irreversible harm to the envir­ onment and to human welfare in the near future; whereas the predictions of long-term impacts as well as the pro­ spects of adaptation and mitigation involve a greater uncertainty. These prospects are based on risk scenarios calculated on the basis of the current development rate, which itself is uncertain. In the context of climate change policy, the problem of uncertainty has been approached by the introduction of

the precautionary principle, which is an ethical norm and legal standard that can be used as a justification for pre­ ventive actions despite the absence of full scientific certainty. In the international legal and political frame­ work that applies to climate change, the precautionary principle is implemented in principle 15 of the Rio Declaration (1992). It can be applied when there is con­ siderable scientific complexity and uncertainty present with a scientifically acceptable reason to believe that current development will result in serious or irreversible harm for present or future generations. The principle ensures that preventive action is taken, thereby avoiding the excuse that scientific uncertainty is used as a justifica­ tion for doing nothing. The idea is that harm may be avoidable by implementing preventive mitigation and adaptation measures. The justification for application of the precautionary principle in the context of climate change is heavily disputed, however. In this particular context, many opponents have argued in line with a libertarian ethical approach emphasizing that the idea of taking ‘precaution’ in itself is not a valid reason for gov­ ernments to introduce emission policies. Such policies, it is argued, are harmful because they reflect an unjustified infringement upon the principle of liberty, which empha­ sizes the individual right to choose one’s own lifestyle. Emission policies are seen as an infringement on this principle because of the lack of scientific evidence to confirm that failing to ensure adaptation and mitigation measures will result in serious or irreversible harm to other people, countries, or the environment.

Mitigation of Climate Change Between 1970 and 2004, the level of carbon dioxide in the atmosphere increased by 70%. Within this period, several policy initiatives have contributed to the reduction of greenhouse gasses in different areas of the world. Nevertheless, these initiatives have not yet managed to decrease the overall growth in emissions globally. The latest report on mitigation from the IPCC Working Group III concludes that the global emission of greenhouse gasses will increase further over the next decades, despite the policies for mitiga­ tion of climate change and related sustainable development practices currently in place. The main purpose of mitigation is to reduce the causes of cli­ mate change, not to ensure adaptation to the changes that are already happening. The justification for miti­ gation is founded in the idea of sustainable development and in the concept of intergenerational justice.

Climate Change

The Idea of Sustainability as Justification for Mitigation The idea of sustainability is reflected in the UNFCCC. The objective of the convention is to stabilize the level of greenhouse gas in the atmosphere in order to prevent dangerous anthropogenic interference with the climate system. By introducing practical and political mitigation measures, such as those established by the Kyoto Protocol, it is hoped that the current process will be slowed or, at best, the measures will break the curve of global warming long term. The convention uses the prin­ ciple of sustainability as the ethical basis for mitigation. The idea of sustainability was first introduced to the environmental political and ethical agenda in 1987, when the World Commission on Development and Environment published the report Our Common Future. The idea is found in the UNFCCC under the main principles in Article 3, where it states that the parties are ‘‘to protect the climate system for the benefit of pre­ sent and future generations of human kind, on the basis of equity and in accordance with their common but differ­ entiated responsibilities and respective capabilities.’’ The principle of sustainability is used in economic, social, and environmental contexts, and for that reason it can be difficult to define precisely. In the context of climate change, the idea comes into play as a result of the recog­ nition of anthropogenic climate change as a known cause of irreversible harm to ecosystems, to human health and human welfare, and to the viable operation of some fragile socioeconomic systems. The idea also reflects a collective ethical responsibility to ensure that the needs of current generations do not compromise the needs of future gen­ erations in terms of access to viable natural resources. This responsibility is based on the common concern not only about the continuation of human life but also about maintaining levels of well-being. Whereas adaptation measures are a direct response to the consequences of climate change and hence can be justified as a reaction to a concrete problem in order to avoid further harm, mitigation measures, focusing on the causes of climate change, are justified mainly through the specific concern for future generations reflected in the idea of sustainabil­ ity. With the knowledge that emission of greenhouse gasses influences the climate, it can be argued that there is an obligation to ensure mitigation efforts because failing to do so can be understood as a way of willfully destroying available resources and thereby jeopardizing the needs of future generations and their ability for development. Thus, it can be argued that if there is an obligation to ensure sustainable development by conservation of cli­ matic stability, this must involve an obligation not to exceed the atmospheric capacity for absorption of green­ house gasses. When considering how best to ensure mitigation measures on the basis of the idea of

471

sustainability, it is therefore necessary not only to evalu­ ate the social, economic, and legal dimensions of climate change based on principles of distributive justice but also to take into account concerns for ecosystems and the interests of future generations. The scientific basis for possible mitigation measures as well as the uncertainty regarding the sufficiency of such measures in terms of limiting the current development in greenhouse gas emissions have given rise to debate regarding whether mitigation can be seen as an ethically and economically sustainable way forward to combat climate change. Some argue in favor of stronger mitiga­ tion efforts as part of a responsibility toward future generations to prevent further harm by reducing the source that causes climate change. Others argue that the economic burden of such mitigation efforts will con­ tribute to further inequality between developed and developing countries and hence will cause harm to cur­ rent generations.

Sustainability as an Obligation: Intergenerational Justice The nature of the moral obligation to conservation through mitigation of climate change implied in the idea of sustainability is disputed, however. Both the conven­ tion and the Kyoto Protocol reflect the principle of sustainability, which seems to suggest that present gen­ erations have a moral obligation to manage the level of greenhouse gas in the atmosphere through mitigation for the purpose of protecting future generations. One idea that has been proposed in defense of an obligation to protect the capacity of the atmosphere is the concept of intergenerational justice. Intergenerational justice is philosophically complex, so only the most general points are outlined here. The idea originates in John Rawls’ ‘just saving principle,’ which states that there is an obligation of present people not to harm or violate the rights of future generations, based on the idea that the basic right of future generations is the right to the conditions needed for maintaining a just basic structure over time. Thus, the just saving principle pre­ supposes the first principle of justice – that is, the original position, where all parties are equal and have equal rights to social goods. The obligation to future generations is not, as such, a concrete obligation to save, for example, natural resources or climate capacity but, rather, an obli­ gation to ensure that the basic needs for allowing future generations to live under just institutions are maintained. Hence, recognition of the moral obligation to save for future generations does not require knowledge of the specific interests or the material conditions of future generations but only recognition that the choices made by present generations impact the future.

472 Climate Change

The question is to what extent or how far the obliga­ tion toward future generations goes. Within the concept of intergenerational justice, the threshold for defining the obligation of present people toward future generations is based on a ‘sufficientarian’ principle of justice. The prin­ ciple emphasizes a distribution of resources in a way that ensures that both present and future generations have enough of these to ensure a basic just structure over time. In this context, the principle refers to distribution of natural resources that can also include the atmosphere understood as a limited natural resource that can be dis­ tributed in terms of assigned carbon emission units. Thus, the idea of intergenerational justice is an attempt to address the problem of moral responsibility that relates to the causality between the actions of present genera­ tions and the consequences of such actions over time. It must be emphasized that this approach does not take into account other ethical concerns that may be reflected in the idea of sustainability, such as general concerns about the continuation of humanity at the same or a higher level of well-being. However, the main premise for recognition of a moral responsibility of present generations toward future generations is the same in both cases – namely the notion that actions can also be understood as harmful even though they may not be harmful to people living in the present. In general, the idea of mitigation differs from the issue of adaptation in the sense that the justification of such measures is dependent on the recognition of a moral responsibility generated by the scientific basis of anthro­ pogenic climate change. Bearing in mind the predicted impacts and prospects for mitigation of climate changes in the near and distant future, however, a sustainable devel­ opment is one that takes into account the possibilities for mitigation as well as the need for practical adaptation measures.

Impacts, Adaptation, and Vulnerability of Climate Change The predicted impacts outlined in IPCC Working Group II’s report on impacts, adaptation, and vulnerability show that all regions of the world will experience climate changes and that such impacts could be detrimental for humans and ecosystems. Adaptation for both humans and ecosystems is therefore necessary in order to meet the challenges of both the current and the future changes in the climate. Two main questions arise from the issue of adaptation to climate change: To what extent do human beings have a moral responsibility to ensure biological conservation of species and ecosystems that are particu­ larly vulnerable toward climatic changes? and how does one ensure just distribution of the burdens and benefits that follow from practical adaptation and mitigation?

Protecting the Environment: Anthropocentrism and Ecocentrism Climatic variability has always existed, and humans as well as other species and ecosystems have had to adapt in order to survive. Nonclimatic stresses, however, such as pollution or the exploitation of particular species or eco­ systems as sources for food, may influence adaptability and make some species and ecosystems more vulnerable to climate changes. Human welfare and socioeconomic development are highly dependent on the use of natural resources. Therefore, when considering different possibi­ lities for adaptation, one must take into account the vulnerability of both humans and ecosystems. The moral incentive to protect the environment depends on how one perceives the relationship between humans and ecosystems – that is, whether the ethical sphere is seen to be restricted to relations between humans only or if it is considered to include ecosystems as well. Whereas the former is anthropocentric, the latter is said to be ecocentric. An anthropocentric justification for conservation of ecosystems or specific species takes as its point of depar­ ture the value that the ecosystem represents to humans. If arguing from an anthropocentric approach, one may claim that ecosystems have a value, but this value is extrinsic only. Ecosystems can have an instrumental value (i.e., a value as a resource), which can include an aesthetic value or a recreational value. An ecocentric approach, on the other hand, will claim that nature has a value in itself (intrinsic), independent of the various values that humans may assign to it. What constitutes this intrinsic value depends on the specific ecocentric approach. Some argue that life is a value in itself; others argue that all species represent a value because of their specific role in the ecosystem. The IPCC Working Group II, the report predicts, with a high degree of confidence, that the resilience of many ecosystems is likely to be exceeded due to a combination of climate change and other impacts, such as land use change, overexploitation of resources, and pollution. This combined impact of environmental change on terrestrial as well as marine ecosystems includes the prospect of increased risk of extinction. For example, the report predicts, again with very high confidence, that a further increase in the surface tem­ perature of the ocean of approximately 1–3� C will have a significant impact on coral reefs in terms of bleaching and an increased mortality of reef beds – a development that is already happening. The risk of collapse of ecosystems or loss of biodiver­ sity due to species becoming extinct gives rise to grave concerns. The question is whether there is a moral obli­ gation or responsibility for humans to protect species or ecosystems from irreversible harm.

Climate Change

Because anthropogenic climate change represents a direct threat of irreversible harm to ecosystems and to individual species, and ecosystems are seen to have an intrinsic value that calls for protection, the ecocentric approach can argue that there is a moral responsibility to protect the environment that follows directly from anthropogenic climate change. However, an anthropo­ centric perspective would argue that the evidence of anthropogenic climate change does not in itself demand a moral obligation to protect species from becoming extinct. Instead, it can be argued that there is a moral responsibility to ensure biological conservation in order to protect certain ecosystems, habitats, or species where these represent a value to humans. Protection of endan­ gered species, for example, may only be justified insofar as those individual species represent a value to humans or present a direct threat of harm to human welfare by not doing so.

Protecting Human Welfare: Deontology and Consequentialism Protecting human welfare against climate changes involves practical adaptation or management practices, such as the introduction of various technologies that can promote mitigation and ensure adaptation in the long term. This includes the use of alternative energy supplies, such as switching fuel from coal to gas or nuclear power, and the introduction of renewable power such as hydropower and solar energy. Building dams and hydropower stations, for example, can impact positively on the environment through the reduction of greenhouse gas emissions and pollution. However, it may also have negative impacts for some species due to radical changes to, if not the destruction of, their habitat. Whether or not introducing a specific technol­ ogy can be considered as morally right or wrong depends not only on whether one argues from an anthropocentric or an ecocentric perspective but also on whether one approaches the question from a deon­ tological-based or a utilitarian, consequentialist moral theory. An ecocentric, duty- or rights-based approach would evaluate the problem, taking as its point of departure the duty to ensure biological conservation of ecosystems or specific species in order to ensure that the intrinsic value of these is not compromised or violated. An equivalent anthropocentric approach will focus on whether or not building the hydropower sta­ tion will infringe on the basic rights of the people who live in the area. Although a large majority of people are predicted to benefit from the station and although it may be good for the environment on a greater scale, it may not be morally justifiable to build it if it involves harm to local people or to ecosystems.

473

From a utilitarian (anthropocentric)-based perspec­ tive, it can be argued that although a hydropower station may change natural habitats and perhaps have a negative impact on people living in the area or people to whom the area represents an aesthetic or recreational value that contributes to their welfare, it may still be justified to build it. The morally good action is that which provides the greatest happiness for the largest number of people; thus, building a hydropower station is morally justifiable if the number of people who will benefit from the power resource and the cleaner environ­ ment that results far outweigh the damages.

Practical Adaptation and Distributive Justice Practical adaptation involves adjustment measures in human lifestyle and cultural behavior in order to enable individuals, communities, and nations to cope with the consequences of climate change without collapsing. From a socioeconomic perspective, both adaptation and mitiga­ tion measures give rise to ethical concerns with regard to distributive justice. Adaptation and mitigation cannot be entirely separated in this context because management practices for mitigation involving changes in lifestyle or a shift to more environmentally sustainable energy resources can also be seen as a development of adaptation measures. The scientific outline of the impacts of climate change provided in the Working Group II report reveals that the changes are going to affect all regions of the world and that adaptation is necessary on a global scale. The increased risk of drought in some areas and of flooding in others will affect crop produc­ tivity; although small temperature increases in the global average temperature may positively affect food productivity on a global level, larger temperature increases (more than 3� C) may have the opposite effect overall. A general decrease in food and freshwater resources will have an effect worldwide, especially in developing countries, where there will be an increased risk of health problems due to malnutrition. Many poor countries, such as in Southeast Asia, are particularly vulnerable to rising sea levels and extreme weather conditions because economic growth in these countries is dependent on activities in coastal areas as well as on forestry and agriculture. Rapid population growth, together with the lack of financial resources to prevent loss of land or natural resources due to environmental risks, also makes such regions extremely vulnerable. Establishing practical adaptation measures, such as securing coastlines against rising sea levels and chan­ ging land use in order to find new ways of providing energy and food resources, imposes huge economic burdens.

474 Climate Change

The need for adaptation measures is greatest in those countries with low gross domestic product, devel­ oping economies, and large social disparities and in which the physical and environmental impact of cli­ mate change will be experienced with serious consequences. However, the costs of adaptation mea­ sures are such that they may prove detrimental to the people by redistributing resources otherwise available for their welfare. On the other hand, failing to establish adaptation measures in these vulnerable regions may result in high mortality rates and health problems due to lack of access to food and water or increased risks to environmental incidents. Another problem could be environmental migrants from some regions, which increases the problem of adaptation in other regions. Neither the causes nor the effects of anthropogenic climate changes are limited by national borders. Although some countries are contributing more than others in terms of greenhouse gas emissions, it is the joint effect of emissions of greenhouse gasses worldwide that causes anthropogenic climate change. With this in mind, some argue in favor of a joint responsibility to foster a sense of acceptance of the problem; but what is the best way to ensure an equal and fair distribution of the costs of adaptation and mitigation? Three main principles of distributive justice can be applied to this question. The simplest way would be to share the costs equally between all countries, with costs calculated per capita. The problem, however, is that this would impose a hea­ vier burden on many poor countries due to their vulnerable socioeconomical situation and the fact that the countries with the largest populations are also among those that are physically most vulnerable to cli­ mate change. Furthermore, because developing countries currently have the lowest carbon footprint per capita, they can be said to be less liable for greenhouse gas emissions in the past and in the present. Bearing this in mind, it may be argued that cost calculated per capita would be an unfair distribution of costs. Given the fact that it is mainly industrialized countries that are liable for the emission of greenhouse gasses in the past, the ‘polluter pays’ principle used in environmental law can be applied on the basis that these countries have a moral responsibility to contribute most to the practical adaptation and mitigation measures as well as to invest­ ment in research in order to find new methods for adaptation. An argument against this principle is that although the largest share of global emission of green­ house gasses historically has originated in industrialized countries, the emissions of such gasses are predicted to grow in developing countries in the future in order to meet their social and development needs. The third principle is in favor of protection of the worst-off. A distribution of costs according to this

principle will again require the largest financial contribu­ tion from industrialized countries, arguing that this is fair not because of an assigned blame for their contribution to anthropogenic climate change but because they can best afford it. The argument is that such a distribution will cause the least burden overall, compared to a distribution in which all countries independent of their socioeconomic status contribute equally based on cost per capita. Both the polluter pays principle and the principle in favor of protection of the worst-off are reflected, respectively, in the Preamble and in Article 3 of the UNFCCC.

Conclusion The outline of different ways of ascribing moral respon­ sibility shows that traditional approaches to responsibility (i.e., individual and collective responsibility) fall short in relation to climate change. This is partly the result of uncertainty generated by the causal complexity between human activity and climate change, which makes it pro­ blematic to talk about responsibility unless it is interpreted in terms of the precautionary principle. More important, one must also consider the size and nature of the problem of climate change, which calls for a responsibility that embraces protection of the environ­ ment and human welfare and takes into account the issue of distributive justice and justice for future generations. The extent to which such a responsibility embraces pro­ tection of ecosystems and species depends on whether it is founded in an anthropocentric or an ecocentric moral approach. Acknowledging the causality between human green­ house gas emissions in the past and the present global warming process, it can be argued that there is a moral obligation to ensure practical adaptation and mitigation measures. Thus, the moral justification for practical adap­ tation and mitigation is expressed in the obligation to compensate for the harm that anthropogenic climate change causes to the environment and to human welfare and in the obligation to conserve the climate in order to ensure a sustainable development for present and future generations.

Acknowledgments I am deeply grateful to Sally Campbell and Benjamin J. Capps for their insightful comments and constructive corrections. See also: Anthropocentrism; Intrinsic and Instrumental Value; Sustainability.

Climate Change

Further Reading Adger NW, Paavola J, Hug S, and Mace MJ (eds.) (2006) Fairness in Adaptation to Climate Change. Cambridge, MA: MIT Press. Davidson MD (2008) Wrongful harm to future generations: The case of climate change. Environmental Values 17: 471–488. Gardiner SM (2006) A perfect moral storm: Climate change, intergenerational ethics and the problem of moral corruption. Environmental Values 15: 397–413. Garvey J (2008) The Ethics of Climate Change: Right and Wrong in a Warming World. London: Continuum. Grasso M (2007) A normative ethical framework in climate change. Climatic Change 81: 223–246. Kemp P and Witthøfft Nielsen L (2009) The Barriers to Climate Awareness – A Report on the Ethics of Sustainability. Ministry of Climate and Energy: Copen Ragen. Kortenkamp KV and Moore CF (2000) Ecocentrism and anthropocentrism: Moral reasoning about ecological commons dilemmas. Journal of Environmental Psychology 21: 1–12. O’Connor R, Bord R, and Fisher A (1999) Risk perceptions, general environmental beliefs, and willingness to address climate change. Risk Analysis 19(3): 461–471. Okereke C (2007) Global Justice and Neoliberal Environmental Governance: Ethics, Sustainable Development and International Co-operation. London: Routledge. Pachauri RK and Reisinger A (eds.) (2008) Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. http://www.ipcc.ch/pdf/assessment-report/ar4/ syr/ar4_syr.pdf. Singer P (2006) Ethics and climate change: A commentary on MacCracken, Toman and Gardiner. Environmental Values 15(3): 415–422. Spash CL (2002) Greenhouse Economics. Value and Ethics. New York: Routledge. Toman M (2006) Values in economics of climate change. Environmental Values 15(3): 365–379. Vanderheiden S (2008) Atmospheric Justice – A Political Theory of Climate Change. Oxford: Oxford University Press. Vermeersch E (ed.) (2005) Reading the Kyoto Protocol: Ethical Aspects of the Convention on Climate Change. The Hague, The Netherlands: Eburon Academic Publishers.

Relevant Websites http://www.adb.org/default.asp – Asian Development Bank. http://ec.europa.eu/public_opinion/index_en.htm – European Commission, ‘Public Opinion.’ http://ec.europa.eu/environment/climat/campaign/ home_en.htm – European Union, ‘Environment: Climate Change.’ http://unfccc.int/kyoto_protocol/items/2830.php – The Kyoto Protocol. http://www.occ.gov.uk/activities/stern.htm – Office of Climate Change, ‘Stern Review on the Economics of Climate Change.’

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http://www.eci.ox.ac.uk – Oxford University, Environmental Change Institute. http://www.tyndall.ac.uk – Tyndall Centre for Climate Change Research. http://www.unep.org/Documents.Multilingual/ Default.asp?documentID=52 – United Nations Environment Programme, ‘Agenda 21.’ http://www.unep.org/Documents.Multilingual/ Default.asp?DocumentID=78 – United Nations Environment Programme, ‘Rio Declaration on Environment and Development.’ http://unfccc.int/2860.php – United Nations Framework Convention on Climate Change. http://www.ipcc.ch/index.htm – United Nations Intergovernmental Panel on Climate Change. http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1­ spm.pdf – United Nations Intergovernmental Panel on Climate Change, A Report of Working Group I of the Intergovernmental Panel on Climate Change. http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2­ spm.pdf – United Nations Intergovernmental Panel on Climate Change, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. http://www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3­ spm.pdf – United Nations Intergovernmental Panel on Climate Change, Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.

Biographical Sketch Lisbeth Witthøfft Nielsen, M.A. in Theology, is Research Fellow at the Centre for Biomedical Ethics, National University of Singapore. She was previously a project manager at the Centre for Ethics in Medicine, University of Bristol, UK (2006–07), on the project ENHANCE – Enhancing Human Capacities: Ethics, Regulation and European Policy (2005–07, European Commission-funded project under the Sixth Framework Programme). She was also Research Fellow at the Centre for Ethics and Law, Copenhagen (2001–08). Her pre­ vious work includes Biotechnology Ethics: Deepening by Research, Broadening to Future Applications and New EU Members, Permeating Education to Young Scientists (Sixth Framework Programme). In 2008, she finished a research project on the ethics of sustainability and the barriers to climate awareness. The project was carried out at the Centre for Ethics and Law and funded by the Ministry of Climate and Energy, Copenhagen, Denmark. Lisbeth is currently writing her Ph.D. dissertation on the con­ cept of ‘nature’ and its role in ethical debate.

Clinical Ethics S Hurst, Geneva University, Geneva, Switzerland ª 2012 Elsevier Inc. All rights reserved.

Glossary Clinical ethics committee Hospital, or other institutional, ethics committees established to consider the ethical dimensions of patient care and/or aspects of institutional organization affecting it. This must be distinguished from research ethics committees, which examine protocols for research including human subjects to monitor the welfare of patients or healthy volunteers participating in research studies. Ethics consultants Persons trained in philosophical ethics and in the process of applying it to health care settings, who work in clinical practice, research, or public policy, where they bring their expertise to bear on the analysis and resolution of ethical dilemmas in individual cases or guidelines.

Ethical Difficulties in Clinical Medicine Clinical practice is a setting in which ethical difficulties are frequent. Although this is often attributed to advances in technology, examples in Box 1 show that this link is not always accurate. There are more fundamental reasons. First, clinical care is a practice, and as such it tends to reveal that the aims we pursue in our moral life – doing good, following rules, maintaining harmonious interper­ sonal relationships, and fostering virtuous character traits – can be in contradiction with each other in many situations. Second, medicine is what we might call a ‘frontier activity,’ often taking place at the limits of the human experience and confronting health care providers as well as patients with our temporal limits (our birth and death), our physical and mental fragility, and our ability to suffer. In such circumstances, the ethical issues we face are different from those we con­ tend with in our ordinary daily lives. In applying each of our moral goals to clinical care, we are thus presented with a different set of difficulties. Third, since the stakes are often high, the potential contradictions between our different moral goals become even more apparent. Reasonable persons can disagree about ethical difficul­ ties, and in clinical practice they often do. This leads to tensions, and sometimes to conflicts, as controversies persist and are recurrently discussed regarding specific cases in different times and countries. Some, such as the case of Terry Schiavo in the United

476

Ethics consultation Services provided by an individual ethicist or an ethics team or committee to address the ethical issues involved in a specific clinical case. The central purpose is to improve the process and outcomes of patients’ care by helping to identify, analyze, and resolve ethical problems. Moral deliberation The process of construing ‘considered judgments,’ alone or as a group; for the purposes of ethics support, refers to discussions of clinical cases facilitated with input from philosophical questioning in order to enhance the thoughtfulness and ethical sensitivity of health care providers. Professional ethos The internally developed norms of a self-regulating profession.

States or that of Eluana Englaro in Italy, are given exten­ sive coverage in the international media and can become subjects of political tensions. Although cases such as these, which give rise to high-profile public disputes, are rare, those remaining within the confines of clinical practice are much more frequent. In 1981, an observational study estimated that ethical difficulties were present in the care of 17% of patients admitted to a general internal medi­ cine ward. The frequency and manner by which doctors encounter different types of ethical difficulties can vary between countries (Table 1) and across clinical special­ ties, but most are reported internationally (Figure 1). Technological progress thus does not by itself cause the ethical difficulties that arise in clinical practice. Rather, it exacerbates the pre-existing reasons for them: unusualness, high stakes, and visibility of our multiple moral goals. Because all interventions have potential side effects, greater opportunities to help patients also translate into greater responsibility to limit these risks. By providing doctors and patients with new interventions, technological progress presents them with new needs to assess risks and benefits, not only scientifically but also on a case-by-case basis. Increasing respect for the importance of shared deci­ sion making and patient autonomy has also given more visibility to ethical difficulties in clinical practice, although there is no evidence that this trend has actually made ethical difficulties more frequent. By giving respect to dissent with doctors, however, it has made situations of disagreement, and thus ethical difficulties, more apparent.

Clinical Ethics

Box 1

477

Case Examples

A 14-year-old girl consults her family doctor, who confirms that she is 10 weeks pregnant. She asks for a termination of her pregnancy, and asks the doctor not to reveal any of this information to her parents. What should her doctor do? A hospitalized patient became agitated following alcohol withdrawal in a context of undiagnosed alcoholism. He became dangerous to himself and had to be sedated and physically restrained. Was this wrong? A terminally ill patient agrees to palliative care for her pain and difficulty breathing, but only if her doctor promises to help her kill herself should these measures fail. What should the doctor do? a A 92-year-old patient had written an advance directive in which she refused all life-saving interventions should her quality of life be lower than at the time of writing. She has since developed advanced dementia. In her few moments of greater lucidity, she sometimes says that she is afraid of dying. She then develops severe pneumonia. Should her doctors respect her previously stated wishes and withhold therapy, or should they nevertheless treat her? A 32-year-old man develops fulminant hepatitis while working as an illegal immigrant in a foreign country. Should he be put on the emergency transplant list in this country, or should his lack of legal resident status disqualify him? Following the discovery of a genetic predisposition to breast cancer in her family, a woman wishes to have her 19-, 16-, and 11-year­ old children tested for the mutation. How should her doctor approach this request? a

Source: Jaworska A (1999) Respecting the margins of agency: Alzheimer’s patients and the capacity to value. Philosophy & Public Affairs 28(2): 105–138.

Table 1 Issues most frequently described as the most difficult (N ¼ 656) Italy

%a

Norway

%

Switzerland

%

United Kingdom

%

Euthanasia/PAS

35.2

Euthanasia/PAS

14.9

Euthanasia/PAS

35.5

27.7

Uncertainty whether to disclose diagnosis Limiting life­ sustaining therapy Disagreement among caregivers Conflict with cultural or religious views

21.5

Impaired decision-making capacity

13.1

Disagreement among caregivers

14.8

Disagreement among caregivers Euthanasia/PAS

12.2

Limiting life­ sustaining therapy Disagreement among caregivers Conflict with cultural or religious views

13.1

Impaired decision­ making capacity

10.3

10.4

Conflict with cultural or religious views Uncertainty whether to disclose diagnosis Limiting life­ sustaining therapy

Scarcity of resources

7.9

5

4.3

Scarcity of resources

7.7

7.2

Impaired decision­ making capacity

21.4

12.5

7.1

Limiting life-sustaining therapy

9.8

5.5

Scarcity of resources

8.9

5.4

Patient disagreement for reasons other than religious

7.1

a Percentages shown in valid percent.

PAS, physician-assisted suicide.

Reproduced with permission from Hurst SA, Perrier A, Pegoraro R, et al. (2007) Ethical difficulties in clinical practice: experiences of European doctors.

Journal of Medical Ethics 33(1): 51–57.

These difficulties are also heightened by the interac­ tion between clinical care and organizational aspects of health care institutions and systems. Organizational ques­ tions, such as those surrounding data protection, resource allocation, or medical training in health care institutions, and societal aspects of issues, such as organ procurement, mandatory vaccination, or treatment for infectious dis­ eases, also become more salient with increased access to effective interventions. These organizational and societal issues, which often involve uncertainty regarding the content and scope of doing good, also have an impact on ethical aspects of patient care. In facing these and other such difficulties, clinical ethics developed out of the meeting of two distinct

traditions of thought: the professional ethos arising within the health care professions and the application of general ethical theory to the practice of medicine. Like bioethics, of which it is generally considered to be a subfield, clinical ethics encompasses reflections on ethical issues in clinical practice from strictly philosophical analyses, through the exploration of solutions applicable in real-life clinical care, to the empirical assessment of ethically relevant clinical practices. In a way, clinical ethics as applied ethics can be said to have a ‘theoretical’ and an ‘engineering’ component. Analyses of specific issues are discussed else­ where. In this article, we focus on the sources of clinical ethics and on methods used to apply its tools in clinical practice.

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Experience with ethical difficulties Types of difficulties: treating patients with impaired or uncertain decision making *Disagreement among caregivers *Limiting life-sustaining treatment or Do Not Resuscitate order *Patient disagreement for reasons other than religious or cultural

Uncertainty whether to maintain confidentiality

*Uncertainty whether to disclose diagnosis to

the patient *Patient disagreement for religious or cultural reasons *Scarcity of resources *Conflict with policies or laws *Rules for payment of services conflict with chosen course of action *Request for physician-assisted suicide or euthanasia

Norway UK Switzerland Italy

*Insurance status conflict with chosen course of action 0

10 20

30

40 50

60 70

80

90 100

Figure 1 Frequency of ethical difficulties reported by doctors in four European countries. Percentages shown in valid percent; � Kruskal–Wallis, p < 0.01. Reproduced with permission from Hurst SA, Perrier A, Pegoraro R, et al. (2007) Ethical difficulties in clinical practice: experiences of European doctors. Journal of Medical Ethics 33(1): 51–57.

Professional Ethos and Its Scopes The first of the two sources of clinical ethics is the internally developed ethos of the health care professions. Doctors and other health care providers are entrusted with general human vulnerability in the face of illness and death. In addition, attempts to cure disease or alleviate suffering often require that patients’ vulnerability actually be increased by giving doctors access to their bodies and to private information. It is thus unsurprising that documents we consider to mark the birth of the professional ethics of physicians, such as the Hippocratic Oath, should be contemporaneous with what we consider the birth of the medical profession. Traditional duties of doctors include goals linked to those of medicine, such as using knowledge to benefit the sick, and putting the patient first. Because doctors are in a position of power asymmetry toward vulnerable patients, these duties also include goals aimed at preventing misuses or even abuses of the power afforded by this position. These include the well-known ‘do no harm’ but also bans on divulging information obtained during a clinical encounter or on seducing patients.

These goals form the initial basis of current professional codes of ethics, such as the World Medical Association International Code of Medical Ethics. Many countries and national medical associations have their own codes of medical ethics; English-language examples include codes of ethics of the American Medical Association, the Australian Medical Association, the New Zealand Medical Association, the Canadian Medical Association, the Medical Council of India, and the British General Medical Council’s Guidance on Good Medical Practice. Internal norms of the health care professions are important. Medicine cannot in practice be regulated entirely from outside its field; patients would all be poten­ tially vulnerable to health care providers who did not respect a professional ethos. Moreover, some of the means developed by medicine for the purpose of helping the sick can also be turned to other – often less justifiable – purposes. Responsible use of medicine’s techniques thus dictates that health care providers should be able to resist pressures to deviate from the goals of medicine. Clear internal norms grounded in sound justifications, then, can help them both to protect their patients and to use their knowledge and skills responsibly.

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If developed unilaterally, however, internal norms of the health care professions can also become problematic. Issues regarding their scope arise with regard to the relationship of medicine toward patients and toward the societies within which medicine is practiced. The scope of professional ethos also requires constant clarification. The Scope of Duties to Patients Putting the patient first is one of the fundamental tenets of the professional ethos of doctors and other health care providers. Consequently, some of the issues arising in clinical ethics regard to what extent and how they should do so. Discussions regarding doctors’ and other health care providers’ duties during epidemics, when treating patients can place their own lives at risk, provides a particularly illustrative example of the first question. In the early stages of the HIV pandemic, understanding of whether doctors had a duty to treat HIV-positive persons was, at best, mixed within the medical profession. This was not a new development but, rather, part of a mixed historical tradition of doctors’ responses to dangerous epidemics. In this case, the ensuing discussions reaffirmed doctors’ duties to care for the sick even in situations of personal danger. These discussions concluded ‘‘that devotion to caring for the sick is what distinguishes health professionals from lawyers, teachers, and businesspeople. . .. This moral ideal defines the core element of being a medical professional. The obligation is not chosen; it is inseparable from the choice to become a doctor. To reject this ethical ideal is to reject the profes­ sion.’’ Health care providers’ willingness to treat patients in subsequent epidemics such as SARS, during which they became a majority of the victims due to their exposure, reaffirmed this principle.

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The question of to what extent health care providers should put patients’ interests before their own also arises when an intervention is medically correct and lawful but individual health care providers nevertheless believe that implementing this intervention would violate their perso­ nal moral conscience. So-called ‘conscience clauses’ are mostly discussed regarding abortion and other reproduc­ tive interventions, such as sterilization, or even prescribing contraception. Although they are recognized in such cases, their scope is controversial. They are usually understood to be limited in at least three ways. First, doctors and other health care providers should only refuse an intervention based on personal conscience if they are able to refer the patient to a non-objecting colleague without making the intervention impossible or riskier. Second, although inter­ ventions can be objected to, persons cannot: Refusals of any other care to patients requesting these interventions cannot be covered under a conscience clause. Third, conscience clauses only apply to individual health care providers and not to hospitals and other health care institutions. Asking how health care providers should put the patient’s interests first raises a different kind of issue. If norms intended to protect patients are unresponsive to these patients’ goals and wishes, this can constitute the very kind of abuse of power that these rules were intended to avoid. Norms evolving toward greater vera­ city and truth-telling in medicine are an illustrative example of professional norms changing to adhere more closely to the expectations of patients. In individual cases, the way in which health care providers and patients should share decisions is also an area of debate where the best answer may vary with circumstances. Of the four models of the doctor–patient relationship described by Emanuel and Emanuel and shown in Figure 2, each can be preferable to the others in some situations.

Deliberative Interpretative

Doctor’s share in the decision

Informative Paternalist Engagement in discussion Figure 2 Four models of the doctor–patient relationship. Adapted from Emanuel EJ and Emanuel LL (1992) Four models of the physician–patient relationship. JAMA 267(16): 2221–2226.

480 Clinical Ethics

The Scope of Duties to Society The self-regulatory status of medicine as a profession does not rest only on the pragmatic argument that reg­ ulating it entirely from without would be difficult. It rests on implicit and explicit agreements with society to behave in certain ways, put patients’ interests before health care providers’ own, and more generally refrain from abusing the power that comes with expertise and with caring for persons made vulnerable by illness. This ‘professional contract’ with society is a crucial part of medicine’s identity and of its enabling condi­ tions. It follows from this that medicine cannot remain entirely unresponsive to changes in social expectations regarding its rules of practice. However, neither can this contract be simply renegotiated whenever values expressed in society differ from those practiced within medicine. We could probably all point to governments that should not be allowed to influence how physicians behave. Examples of situations in which such tensions arise include the participation of doctors in torture, capital punishment, detention of political dissidents on psychiatric grounds, and – less dramatically but more pervasively – in drug marketing and advertising. Even in cases such as these, in which clear international and national regulations ban the participation of doctors, controversies nevertheless arise. These controversies illustrate the difficulties inherent in defining the scope of doctors’ duties to their social group as opposed to their individual patients and of doing so under pres­ sures of diverse origins and degrees.

The Scope of Professional Ethos The internal professional ethos of health care providers is useful but cannot be implemented or developed entirely unilaterally. First, ethical issues arising in clin­ ical practice are not entirely distinct from those arising in other areas of human life. Neither is there any reason why the values that apply there should be entirely distinct from ethics in general. Second, health care providers do not, solely in virtue of their skills and experience, master all the tools and skills useful in resolving ethical issues within their practice. Third, although it is right that there should be limits to what health care providers accept to do, there should also be limits to what they can impose on others. Although the scope of professional ethics is broad, then, it is never­ theless limited, including in its capacity to solve ethical difficulties arising within clinical practice. This is one of the reasons why clinical ethics as applied ethics has been so successful in becoming integrated within med­ ical practice and curricula.

Clinical Ethics as Applied Ethics The second of the two sources of clinical ethics is the application of general ethical theory to the practice of medicine. This meeting, between theoretical analysis and emotion-laden practical difficulties embedded in chaotic human reality, was not straightforward. In 1973, Dan Callahan, one of the pioneers of the field, gave the follow­ ing description: I resisted, with utter panic, the idea of participating with the physicians in their actual decisions. Who me? I much preferred the safety of the profound questions I pushed on them. But I also realized when faced with an actual case – and this is my excuse – that there was nothing whatever in my philosophical training which had prepared me to make a flat, clear-cut ethical decision at a given hour on a given afternoon. I had been duly trained in that splendid tradition of good scholarship and careful thinking which allows at least a couple thousand years to work through any problem.

However difficult it initially was, this meeting was mutually useful. Philosophers gathered practical experi­ ence in health care settings, and health care providers learned moral philosophy. In 1982, just 9 years after Callahan’s account, Stephen Toulmin wrote an article titled ‘How Medicine Saved the Life of Ethics.’ Medicine provided moral philosophy with a rich sub­ strate and in turn benefited from the application of some of moral philosophy’s tools to ethical issues arising in clinical practice. Ethics committees and consultants drew from this new area and gave birth to the clinical branch of bioethics. The application of ethics to clinical care is shaped by several factors. First, the practical nature of clinical care tends to highlight that the aims we pursue in our moral life can be in contradiction with each other in many situations. It also highlights our ability nevertheless to come to mutually acceptable solutions. This sheds light on the success of approaches based on syntheses of differ­ ent philosophical approaches. The most influential of these remains Beauchamp and Childress’ ‘Principles of Biomedical Ethics,’ which describes ‘‘convergence of reflective ethical analysis,’’ from different philosophical theories of ethics, on ‘‘common mid-level principles’’ and also describes these mid-level principles (autonomy, ben­ eficence, nonmaleficence, and justice) along with a way of applying them to ethical difficulties arising in medicine. The second factor in applying ethics to clinical care is that the time available to resolve issues tends to decrease substantially. Whereas one may withhold judgment in theoretical debates, withholding judgment in clinical practice is itself a decision – one that can bear heavy consequences. Immediate goals must thus include finding

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the ‘least worse’ solution for now, without exclusive focus on finding the best solution years from now. Importantly, even this sort of tentative, limited input seems useful in helping health care providers come to more ethically justifiable decisions. The third factor is that solutions put forward by clin­ ical ethics will often be applied, making the inherent risks of being wrong more explicitly visible. This was pointed out by Bernard Williams as a feature of moral philosophy as a whole. In Morality, he wrote, Writing about moral philosophy should be a hazardous business, not just for the reasons attendant on writing about any difficult subject, or writing about anything, but for two special reasons. The first is that one is likely to reveal the limitations and inadequacies of one’s own perceptions more directly than in, at least, other parts of philosophy. The second is that one could run the risk, if one were taken seriously, of misleading people about matters of importance. While few writers have avoided the first hazard, very many have avoided the second, either by making it impossible to take them seriously, or by refusing to write about anything of importance, or both.

Clinical ethics as applied ethics cannot avoid this second hazard because it cannot avoid writing about important things, and it is increasingly being taken seriously. Inasmuch as it is practiced within clinical practice, then, clinical ethics has become an area where some of the internal professional norms of medical professions will in turn apply. When your conclusions are likely to affect the lives of vulnerable patients, particular care in the use of your tools, as well as awareness of your field’s possibi­ lities and limitations, becomes crucial to responsible practice. Finally, a context in which the contradictions between ethical aims become apparent, and in which reasonable persons can thus be expected to disagree, will require that the ways in which decisions are reached also be examined. This has led to concerns regarding process: insistence that, in most cases, competent patients should have the final word regarding their own care and development of mechanisms for group decision making and consensus building. Because the normative examination of processes is part of the domain of political philosophy as well as moral philosophy, this has also contributed to calls for greater integration of political philosophers within clin­ ical ethics. Issues explored by clinical ethics are numerous and diverse. An incomplete list includes informed consent for clinical interventions and the use and application of advance directives; decision making by family members and surrogates of the patient; end-of-life issues such as withdrawing or withholding life-sustaining interventions,

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euthanasia, or assisted suicide; confidentiality and its exceptions; live organ donation and more generally organ procurement for transplantation; clinical resource allocation and the extent of clinical duties to uninsured patients; medical applications of otherwise illegal drugs; and reproductive issues such as surrogate motherhood or abortion. These issues are explored in clinical settings but also increasingly form a part of medical school curricula. Clinical ethics has also developed specific journals, such as the Journal of Medical Ethics, Journal of Clinical Ethics, Clinical Ethics, and Health Ethics Committee Forum. Textbooks and manuals, such as the World Medical Association Medical Ethics Manual, are now directly shaped by the application of applied ethics to clinical care.

Clinical Ethics Support in Health Care Settings Clinical ethics support services – committees, consulta­ tion teams, or ethics consultants – bring clinical ethics to bear on ethical difficulties arising in health care. The functions of clinical ethics support services usually have three components:

• •

Ethics consultation: retrospective or, more fre­ quently, prospective ethics counseling in individual cases Guideline development: putting out argued opi­ nions on how specific, recurring ethical difficulties should be addressed within health care Teaching: facilitating education to raise awareness and knowledge of clinical ethics within the health care setting

•

Their goals are to facilitate more ethically justifiable and participative decisions in situations of ethical tension and complexity arising in clinical practice. To do this, they aim to clarify ethical issues; input more developed and systematic ethical arguments into clinical decisions and policies; highlight the rights of individuals affected by an ethically difficult situation (first and foremost patients) to share in decision making; and generally help those affected come to a better, and sometimes even faster, resolution of an ethical difficulty. That clinical ethics support services serve in a con­ sultative position has two consequences. First, their advice is not binding. Rather than take the decision from those affected by the situation, the aim here is to help them to make a better one. Making the conclusions of ethics consultation binding would be dangerous for sev­ eral reasons: For example, it could lead to decreased responsiveness to changes in morally relevant aspects of the situation or to a decrease in the endorsement of professional responsibility by health care providers. Neither is clinical ethics consultation similar to legal advice. Although ethics consultants often refer to the

482 Clinical Ethics

law, and include legal expertise among their membership, the focus of their activity is different. Indeed, the sort of issues brought to ethics support services are often those on which the law gives no firm specific direction as to how to address the case at hand. The second consequence is that the advice of ethics consultants is only as good as the arguments they provide in support of their conclu­ sions. Making these arguments, and this fact, explicit is part of the educational value of ethics support services. Membership Clinical ethics support services acquire their usefulness and legitimacy through expertise but also through diver­ sity, both in the represented knowledge and skills and in representation from the various stakeholders in health care services. Their membership usually includes clinicians (doctors and nurses) from different clinical areas, other hospital staff such as social workers, psychologists, phy­ siotherapists or chaplains, legal experts, ‘citizen members’ from outside the health care setting, and – increasingly – one or more members with formal advanced training in ethics. Logistics of Ethics Consultation Ethics consultation can be practiced by individual ethics consultants, a clinical ethics subcommittee, or the whole clinical ethics committee. Each of these models has advantages and disadvantages and, of course, different human resource implications. Individual consultants tend to be more flexible in responding to urgent calls, more easily identified, and work along lines similar to other forms of hospital con­ sultation. Their drawbacks are that they are more likely to voice only one perspective and could come to be relied on too much by clinicians who, in the end, must remain responsible for the decisions they make. Whole commit­ tees are the best guarantee of bringing the full diversity of views and expertise to bear on ethics consultation. However, they are also the least flexible approach. Moreover, the sheer number of participants could make the process seem like a court of law and thus increase the risk that clinicians could neglect the consultative aspect of ethics consultation. The response to the disadvantages of the two previous models is frequently to have a subcommittee, or team, conduct ethics consultation. These teams are more diverse than individual consultants and more flexible than whole committees. Although it can still be difficult to organize and coordinate such a team, most services seem to function along those lines. When either an indi­ vidual consultant or a team conducts consultation, input from the whole committee is gathered by reviewing con­ sults and their conclusions at the next available meeting.

Institutions vary in their policy toward ethics consul­ tation. Usually, however, anyone affected by an ethical difficulty can ask for a consultation. This includes hospital health care providers in charge of the case but also those responsible for care in the outpatient setting, family mem­ bers, and of course the patient. Ethics consultation is proposed as a second-line intervention when attempts to resolve the issue among the persons affected by the case have not succeeded. The following is a description of the ‘indications’ of clinical ethics consultation at the University of Washington School of Medicine: You should consider asking for a consult when two conditions are met: 1. You perceive that there is an ethical problem in the care of patients, and 2. Resolution does not occur after bringing this to the attention of the attending physician.

When a clinical ethics consultation is called, the consul­ tant, team, or a delegation of the clinical ethics committee will contact the requestor to specify the kind of ethical difficulty, the circumstances, and the degree of urgency. The ethics consultation service will meet with the reques­ tor and other persons involved in the case, and some will review medical records. An interdisciplinary meeting will often be organized by the consultation service to discuss the specifics of the case, explore its ethical aspects and the reasons for and against various available options, and provide argued advice. The consultation service will either write a note or provide a summary of the ethics consultations’ advice and arguments for the patient’s chart. Some clinical ethics support services are more proac­ tive. For example, some conduct ‘ethics rounds’ at the bedside, in a manner similar to rounding with specialists from medical specialties.

International Development Clinical ethics support services initially developed in the United States following court cases such as the Quinlan case, which stressed the need for mechanisms to resolve ethical disputes within health care. The Joint Commission on Accreditation of Healthcare Organizations’ require­ ment for hospitals, nursing homes, and home care agencies to have a standing mechanism to address ethical issues has also fostered this development. Despite initial doubts regarding the possibility of importing what was initially believed to be a specificity of the U.S. system, ethics support services have developed in many other countries, including Canada (e.g., Toronto’s ‘hub and spokes’ model) and various countries in Europe (e.g., the United Kingdom, Norway, Switzerland, The Netherlands, and Croatia) and Asia.

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There are vast international differences in the avail­ ability of clinical ethics support services. Whereas 81% of U.S. hospital physicians report such access, just 26% of their European counterparts in four countries reported an available ethics support service. Part of this difference may, however, be due to the requirement to officialize ‘mechanisms to resolve ethical disputes’ in U.S. hospitals. The same European study showed that 24% of doctors reported access to ‘other,’ informal, sources for ethics advice. Furthermore, many ethics support services in the United States lack the formal training or consultation volume one might associate with a formal service: In the U.S. study, only 5% of ethics consultants had formal training, and the median number of consultations per year was three. The United Nations Educational, Scientific and Cultural Organization’s Universal Declaration on Bioethics and Human Rights, which states in Article 19 that ‘‘independent, multidisciplinary, and plur­ alist ethics committees should be established, promoted, and supported at the appropriate level in order to . . . (b) provide advice on ethical problems in clinical settings,’’ may lead to similar ‘officializations’ across countries other than the United States. Whatever the case may be, in all countries in which ethics support services are developing, they are in need of strengthening through training, experience, sometimes structural consolidation, and often resources. For this reason, networks and online resources for clinical ethics support services have been developed. Some, such as the European Clinical Ethics Network, are international. The most wide-ranging is currently the UK clinical ethics network, but others exist in Canada, Germany, and the United States (e.g., the Maryland Healthcare Ethics Committee Network), and it is likely that more will start. Guidelines written for clinical ethics consultation include the American Society for Bioethics and Humanities’ Task Force on Health Care Ethics Consultation: Nature, Goals, and Competencies. Other online resources include the UK Clinical Ethics Network’s practical guide for clinical ethics support, the British Medical Association’s ‘Medical Ethics’ page, the University of Washington’s guide on clinical ethics committees and consultation, and the Veterans’ Administration’s (United States) inte­ grated ethics tools and materials. The Wikipedia page on ‘Resources for Clinical Ethics Consultation,’ which was started concurrently with the writing of this article, aims to host a continuously updated list.

Methods, Processes, and Usefulness Clinical ethics support services draw from different phi­ losophical sources and use one or more methods, consultation processes, and deliberation processes to

483

facilitate ethics consultation. Their approaches can best be described by distinguishing these different levels. Methods include approaches based on principlism but also on clinical practice, as well as on clinical pragmatism, hermeneutic dialogue, Socratic dialogue, moral delibera­ tion, and consensus building. Consultation processes have been outlined previously and include consultation by individual consultants, teams, and committees. Deliberation processes include the four boxes approach, the CASES approach developed at the U.S. Veterans’ Administration Hospitals, and several others that are often developed locally, sometimes in languages other than English (e.g., Hubert Doucet’s steps or the Nijmegen model). A few online tutorials have been devel­ oped, such as the videos on skill building in ethics case consultation at the Neiswanger Institute. Usefulness of Clinical Ethics Support A case example brought to clinical ethics consultation is shown in Box 2. Although the specifics of such a case will vary between countries, end-of-life issues are a frequent motivation for clinical ethics consultation. When facing ethical difficulties without specific ethics support, doctors look for assistance more frequently than might be assumed, and they attempt to avoid conflict (Table 2). Both are ways in which they try to protect the integrity of their conscience and the integrity of the group constituted by those who participate in the decision. Although integrity is often used as a synonym for ‘honesty,’ it is used here in its broader sense of wholeness, acting in accordance with one’s principles, and the inte­ gration of personality into a harmonious whole. These reasons, and the importance of resolving conflicts, are also among the reasons why doctors use ethics support services. Even in countries in which little clinical ethics support is available, doctors report that they would find such help useful. Results from the United States and Europe are shown in Table 3. Are clinical ethics support services useful? Their effects have been the object of research, but defining the sort of outcomes that are both desirable and amenable to empirical measurements is both difficult and limiting. That they are judged to be useful by users should cer­ tainly comfort ethics consultants but cannot constitute sufficient quality control. Moreover, as outlined previously, a number of differ­ ent methods and processes for clinical ethics consultation exist. Although detailed descriptions are starting to appear (e.g., the following descriptions from Canada, Norway, Switzerland, the United Kingdom, and the United States), lack of detail in descriptions of processes and methods has been an obstacle to comparative research. It should be noted that at the current stage, it is not clear that clinical ethics support services should

484 Clinical Ethics

Box 2

A Swiss Consultation Case

Request for Suicide Assistance at a Teaching Hospital An urgent consultation was called from the geriatric ward of the palliative care hospital. The ethical dilemma was a patient’s suicide project. The patient is an elderly woman suffering from multiple complications of a recent episode of severe infection (sepsis). Her current life expectancy, although unclear, may be of several months or more. Her life, however, is confined by her extreme weakness and by oxygen dependency. She feels that it is time for life to end, as she cannot bear the thought of living on in such a diminished state. She is not depressed, and there is general agreement that she is capable of decision making. She wishes to receive suicide assistance, which is legal in Switzerland, and to do so at the hospital. The staff is frustrated. Accepting this suicide goes against values that are important to them: respect for life, and their professional duty to benefit their patients. At the same time, they rationally understand and accept the suicide project. This results in two kinds of divided opinion among the team: what the ethically justifiable approach toward this request for assisted suicide might be, and where, if at all, suicide assistance should take place. The Matter at Issue The purpose of the consultation is not to gather more information: In this case, the facts of the case are clear. In the Swiss context, the law is also clear: Suicide assistance is legal as long as the motive is not selfish. Difficulties, however, do remain: They regard how to weigh conflicting duties and values in a specific case. Source: Hurst SA, Chevrolet JC, and Loew F (2006). Methods in clinical ethics: a time for eclectic pragmatism? Clinical Ethics 1: 159–164.

choose one method rather than another. First, the philo­ sophical groundings of the various methods are inconclusive, and their evidence base is insufficient. Second, and more important, it is far from clear that clinical ethics should aim to single out one method as best for all circumstances in which ethics consultations are needed. Rather than a single method, the field may move toward a ‘pharmacopeia’ of methods and processes applicable in different forms of ethical difficulties arising in clinical practice. Further research is needed to reach either this stage or the identification of a ‘best practice,’ whatever form this might take. Utilization of Clinical Ethics Support Reports from both health care providers and clinical ethics support services suggest that these services are underutilized. Obstacles such as fear of abdicating respon­ sibility or reluctance to include people from outside the team have been reported. In countries in which clinical ethics support services are relatively new, it may be reasonable to expect health care providers to lack aware­ ness of the situations in which these services can be of use to them. Although fear of retaliation for requesting an ethics consultation is common among nurses, it does not seem to decrease the utilization of support services, at least in the United States. Interestingly, doctors with more training in ethics or with greater confidence of their knowledge of ethics were more likely to have used the ethics support service avail­ able to them in both Europe and the United States. This suggests that contrary to what was once supposed, clinical ethics support services are unlikely to be able to work themselves out of a job through education of health care providers. One reason for this may be that sensitivity to ethical difficulties, including the ability to identify them,

is not a straightforward matter. This in turn may indicate a need that ethics support services become proactive in making their help available to physicians, especially those with less training in ethics. This role could include parti­ cipation in training programs for medical students and hospital physicians.

Current Questions In addition to the open question regarding methods out­ lined previously, several issues are in need of further attention. Some relate to more specific aspects of the practice of clinical ethics consultation, such as patients’ participation, necessities and pitfalls linked to the integra­ tion of clinical ethics support services within health care institutions, the selection of citizen members, and the participation of members of the hospital administration. Other issues regard the scope of clinical ethics support. For example, a few support services conduct research ethics consultation prior to research ethics committee review of studies involving human subjects. Should this activity grow out of clinical ethics support, or should it rather constitute a mode of outreach by research ethics committees? A larger question is whether clinical ethics support services should advise hospital administrative and clinical staff on organizational ethics, and whether this can really be thought of as distinct from clinical ethics. These questions are important because addressing orga­ nizational ethics requires additional skills and knowledge complementary to those required in clinical ethics. In addition, clinical ethics support currently centers within urban hospitals, and the development of similar (although certainly not identical) services for rural and outpatient services requires adaptations.

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Table 2 How doctors face ethical difficulties Issues, persons, and valuesa Most frequently identified issues Incurable or dying patient Disagreement Problematic proxy Uncertainty about the best goal Requests for futile treatment Allocation Refusal of intervention Lack of knowledge/limits of medicine Communication Persons mentioned as included Patient Situations including others besides physician and patient Family/proxy Team Colleagues Administration involved Payer involved Ethics support consulted Most frequently articulated values Doing what is best For the patient For the family Inclusiveness Respect for the patient’s self-determination Patient advocacy Defending life Avoid causing harm To the patient To the family Maintaining integrity Resource stewardship Telling the truth Prioritized values Inclusiveness Patient advocacy Respect for the patient’s self-determination Doing what is best for the patient Avoid causing harm to the patient Defending life

N ¼ 310 65% 54% 39% 27% 24% 20% 19% 13% 10% 43% 79% 58% 18% 15% 7% 6% 6% 94% 92% 9% 61% 47% 38% 38% 28% 22% 14% 22% 12% 11% N ¼ cases where articulatedb 76% 69% 55% 56% 52% 30%

a

Codes were not mutually exclusive.

Percentage is a proportion of cases in which this value was articulated by the respondent.

Reproduced with permission from Hurst SA, Hull SC, DuVal G, and Danis M (2005). How physicians face ethical difficulties: a

qualitative analysis. Journal of Medical Ethics 31(1): 7–14.

b

Table 3 Help doctors would find useful

Help in mediating conflict among different points of view Someone with special skills and experience in ethics Someone capable of providing clear direction Someone who knows the law, institutional policy, federal regulations, or national standards Clarification of ethical issues Alternative suggestion for ethically appropriate courses of action Professional reassurance that a decision was the correct one

United States (%)

Europe (%)

77 75 74 70 67 63 57

29 42 41 25 36 31 47

Source: Fox E, Myers S, and Pearlman RA (2007) Ethics consultation in United States hospitals: A national survey. American Journal of Bioethics 7(2): 13–25 (For US), Hurst SA, Perrier A, Pegoraro R, et al. (2007) Ethical difficulties in clinical practice: experiences of European doctors. Journal of Medical Ethics 33(1): 51–57 (For Europe).

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Questions also surround the ‘support of support’ – the sort of resources required to conduct clinical ethics sup­ port, their justification within the budget of health care institutions, and their inherent risks of conflicts of inter­ ests for consultants. Clinical ethics support services, if they are to be useful, must remain free to criticize the institution within which they exist – a requirement that sometimes needs specific protections. Increasing availability of advanced training in ethics is leading to a shift in recommendations for competencies, at least for core ethics consultation staff. Questions relating to accreditation of ethics consultants and committees are also recurrent. Because accreditation is a primarily medical model, not transposable to a multidisciplinary field in a straightforward manner, the origins of clinical ethics make this question inevitably difficult. Pressures to increase qual­ ity control and evidence-based practices in health care lead to growing insistence that clinical ethics apply similar stan­ dards. Its very recognition as part of the mainstream constituents of a hospital prompts this pressure. Simultaneously, bioethics and its subfield of clinical ethics have acquired a steadily growing specific corpus of literature and skills. Work within this area requires specific training; the field is no longer easily entered by merely interested professionals and academics from its source disciplines. Indeed, it is no longer clear that it still constitutes a subfield of any of them in a traditional sense. In effect, clinical ethics has become something that highly resembles a profession without having acquired the usual attributes of one: a code of ethics, standards of accreditation, and conditions for licen­ sure. This has led to increasing demands that it should. Making a decision either for or against credentialing, how­ ever, seems to require clinical ethics to take a stand either for its academic (often philosophical) origins or for its clinical environment. Because the balance between these two sources is a crucial part of the interest and richness of clinical ethics as applied ethics, perhaps we should be comforted by the difficulty it demonstrates in adjudicating between them. Although this is a controversial point, however, it may be that despite appearances, there is no more need to adjudicate between the clinical and the academic model in clinical ethics as there was in the application of such academic disciplines as chemistry or physics to the care of the sick. This discussion could simply indicate that clinical ethics has, as it were, come full circle: It is now a practice able to influence the lives of the vulnerable sick, just as surely as medicine itself. As such, it must either self-regulate or be regulated from without. The open question is which of these will happen.

See also: Addiction; Advance Directives; AIDS in the Developing World; AIDS, Ethical Issues in Health Care; Autonomy; Care, Ethics of; Codes of Ethics; Confidentiality, General Issues of; Consequentialism and

Deontology; Death, Definition of; Dental Ethics; Discourse Ethics; Do-not-Resuscitate Decisions; Drugs, Moral and Legal Issues; Euthanasia (Physician-Assisted Suicide); Genetic Counseling; Informed Consent; Medical Codes and Oaths; Medical Ethics, History of; Medical Futility; Moral Development; Multidisciplinary Approaches to Ethics; Organ Donation and Transplantation; Palliative Care; Paternalism; Patients’ Rights; Physiotherapy, Ethics of; Pragmatism; Principlism; Psychiatric Ethics; Psychiatry, Coercive Treatment; Public Health Ethics; Research Ethics, Clinical; Resource Allocation; Theories of Ethics, Overview; Virtue Ethics.

Further Reading American Society for Bioethics and Humanities (ASBH) (1998) Task Force on Standards for Bioethics Consultation: Core Competencies for Health Care Ethics Consultation. Glenview, IL: ASBH. Andre J (2002) Bioethics as Practice. Chapel Hill: University of North Carolina Press. Ashcroft RE (ed.) (2005) Case Analysis in Clinical Ethics. Cambridge, UK: Cambridge University Press. Aulisio MP, Arnold RM, and Youngner SJ (2003) Ethics Consultation; From Theory to Practice. Baltimore: Johns Hopkins University Press. Baylis F (1994) The Health Care Ethics Consultant. Totowa, NJ: Humana Press. Beauchamp T (2008) The principle of beneficence in applied ethics – Beneficence in biomedical ethics. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/ principle-beneficence. Callahan D (1997) Bioethics as a discipline. In: Jecker NS, Jonsen AR, and Pearlman RA (eds.) Bioethics. Boston: Jones & Bartlett. Davies L and Hudson LD (1999) Why don’t physicians use ethics consultation? Journal of Clinical Ethics 10(2): 116–125. DuVal G, Sartorius L, Clarridge B, Gensler G, and Danis M (2001) What triggers requests for ethics consultations? Journal of Medical Ethics 27(Suppl. 1): i24–i29. Emanuel EJ (2003). The lessons of SARS. Annals of Internal Medicine 139(7): 589–591. Emanuel EJ and Emanuel LL (1992) Four models of the physician– patient relationship. JAMA 267(16): 2221–2226. Faden R and Beauchamp T (1986) A History and Theory of Informed Consent. Oxford: Oxford University Press. Fletcher J, Lombardo P, Marschall M, and Miller F (eds.) (1995) Introduction to Clinical Ethics. Hagerstown, MD: University Publishing Group. Fox E, Myers S, and Pearlman RA (2007) Ethics consultation in United States hospitals: A national survey. American Journal of Bioethics 7(2): 13–25. Hurst SA, Chevrolet JC, and Loew F (2006) Methods in clinical ethics: a time for eclectic pragmatism? Clinical Ethics 1: 159–164. Hurst SA, Hull SC, DuVal G, and Danis M (2005) How physicians face ethical difficulties: a qualitative analysis. Journal of Medical Ethics 31(1): 7–14. Hurst SA, Perrier A, Pegoraro R, et al. (2007) Ethical difficulties in clinical practice: experiences of European doctors. Journal of Medical Ethics 33(1): 51–57. Hurst SA, Reiter-Theil S, Perrier A, et al. (2007) Physicians’ access to ethics support services in four European countries. Health Care Analysis 15(4): 321–335. Jaworska A (1999) Respecting the margins of agency: Alzheimer’s patients and the capacity to value. Philosophy & Public Affairs 28(2): 105–138. La Puma J (1994) Ethics Consultation; A Practical Guide. London: Jones & Bartlett.

Clinical Ethics Lo B and Schroeder SA (1981) Frequency of ethical dilemmas in a medical inpatient service. Archives of Internal Medicine 141(8): 1062–1064. Schneiderman LJ, Gilmer T, and Teetzel HD (2000) Impact of ethics consultations in the intensive care setting: A randomized, controlled trial. Critical Care Medicine 28(12): 3920–3924. Williams B (1972) Morality. Cambridge, UK: Cambridge University Press.

Relevant Websites http://www.youtube.com/watch?v=eNQniGWn3bo– Conducting an ethics consultation [video] (Accessed 26 January 2010). http://en.wikipedia.org/wiki/Resources_for_clinical_ethics_ consultation – Resources for clinical ethics consultation (Accessed 26 January 2010). http://bioethics.lumc.edu/online_masters/ECE_skill.html – Skill Building in Ethics Case Consultation (Accessed 26 January 2010). http://portal.unesco.org/en/ev.php-URL_ID=31058& URL_DO=DO_TOPIC&URL_SECTION=201.html – UNESCO Universal Declaration on Bioethics and Human Rights (Accessed 26 January 2010).

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http://www.wma.net/en/30publications/10policies/c8/ index.html – World Medical Association International code of medical ethics (Accessed 26 January 2010).

Biographical Sketch Samia A. Hurst, M.D., trained as a postdoctoral fellow at the National Institutes of Health, Department of Bioethics and is currently Assistant Professor of Bioethics at the Geneva Medical School’s Centre de Bioe´thique et Sciences Humaines en Me´decine in Switzerland; clinical ethics consultant to the Geneva University Hospitals’ Conseil d’e´thique clinique; mem­ ber of the Central Ethics Commission of the Swiss Academy of Medical Sciences and of the Ethics Review Committee at the World Health Organization; editor of the peer-reviewed journal Bioethica Forum; and president of the Swiss Society for Biomedical Ethics. Her research focuses on fairness in clinical practice and the protection of vulnerable persons. In her free time, she hosts the blog Bio-e´thique.

Cloning T Takala, University of Helsinki, Helsinki, Finland ª 2012 Elsevier Inc. All rights reserved.

Glossary Clone An identical (or near identical) biological copy of a piece of DNA, a cell, or an organism. Cloning The process by which the close is produced.

Introduction Human reproductive cloning became an issue in 1997 when the birth of Dolly the sheep, the first cloned mam­ mal, was announced. People throughout the world rushed to condemn human cloning as an absolute moral wrong, and a number of laws and treaties were quickly drafted in this spirit. Cloning is one of those things that people love to hate, and if asked about it on the street, the vast majority of Europeans and Americans would probably say that cloning should be banned. Although there have been some voices excited about the possibilities that clon­ ing humans might open, the majority of discussions on public, political, and academic fora have echoed the denunciation of the practice. However, when asked about the reasons, people find it surprisingly difficult to point their finger to the exact features that make cloning an absolute moral wrong. This article introduces the reader to the main arguments that have been presented against human (reproductive) cloning and to the few that have been put forward in favor of it. Cloning is a general term that refers to a number of techniques used for different purposes. For legal and ethical purposes, with regard to humans, a distinction is usually made between therapeutic and reproductive clon­ ing. In therapeutic cloning, the aim is to clone cells that make particular organs or types of tissue – the most promising uses are believed to be in stem cells, but cloning could also be used to produce organs for trans­ plantation. In reproductive cloning, the aim is to produce new human beings. Although therapeutic cloning has also been perceived as ethically problematic, it is far better tolerated than the idea of producing new human beings by similar methods. There are roughly two known ways of cloning mam­ mals. The less controversial method for human reproductive cloning is called embryo splitting. This happens naturally when one embryo spontaneously divides into two or more embryos, thus creating identical

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Reproductive cloning A practice in which the aim is to clone the whole organism, for instance a human being, to create a new individual. Therapeutic cloning The process of cloning pieces of DNA or cells for therapeutic purposes.

twins or, sometimes, triplets or even more. In its artificial form, an existing embryo is mechanically divided into two or more embryos that are then allowed to develop natu­ rally. This method has been used with human embryos in fertility clinics since 1993 and it is approved, for instance, by the American Medical Association, but there are many countries in which it remains illegal. The technique that has raised more moral outrage is the possibility of creating clones by nuclear transfer. This is how Dolly was pro­ duced. In this method, by a process known as cell fusion, the nucleus of a cell from another being (in Dolly’s case, a cell of an adult sheep) is transferred into an unfertilized egg taken from a donor. Cloning by nuclear transfer makes possible the creation of a near-identical genetic copy of an existing individual. The closest match can be achieved when the egg and the nucleus come from the same individual. Even when they do not, only residual mitochondrial DNA has its origin in the egg, whereas all the other genetic material is derived from the transferred nucleus.

Unnaturalness The initial ‘yuk’ reaction to the idea of cloning humans is often on reflection explicated in terms of unnaturalness: Cloning is wrong because it is unnatural. Reproduction is natural when a man and a woman engage in sexual inter­ course, the woman gets pregnant, and as a result a child is born. For many, the method of in vitro fertilization already marked a deviation from natural reproduction, and it took years for the method to become generally accepted. However, it is possible to argue that the fertilization that takes place in a petri dish is essentially the same natural process (it is just not happening inside the woman) but still maintain that the asexual character of reproduction by cloning is unnatural to humans because humans repro­ duce sexually.

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The arguments from unnaturalness are commonly used, but they are philosophically difficult to defend. The main problem is that it is unclear what is meant by unnatural (artificial, miraculous, supernatural, rare, or uncommon) and why any of these attributes would make what is unna­ tural also immoral. On closer inspection, it would seem that our intuitions do not always make the connection between unnatural and immoral in the same way. To stop a patient’s heart for a few hours to perform heart surgery probably strikes us as unnatural, but not many of us would say that it is immoral, and the survival of the fittest seems to be a very natural principle – nature as a whole is bound by it – yet few would think it should be embraced as a moral principle. However, there is a philosophical tradition in which the connection between natural and moral exists. In the teleological models, everything has its natural goal (telos) toward which it aims and should aim. In this framework, going against nature (doing what is unnatural) is wrong because it is going against the natural law. The idea of natural law takes us back to Aristotle’s ethics and meta­ physics. He was the first to systematically express the idea that the good and the natural are intrinsically linked. Many natural law theorists see God as the origin and fount of natural law, but there is no necessary connection. Within this tradition, it makes sense to seek morality from what naturally is, because according to the presupposi­ tions of this model, there is a purpose in nature. However, for the rest of us, nature, as it happens to be, seems like an odd place to search for moral norms. To condemn something because it is unnatural could simply be a way of voicing the yuk reaction that a person has toward the practice. However, it could also be interpreted as a call for caution. Nature is a large and complicated entity, and although we know much about how it works and our understanding of it increases con­ tinuously, our knowledge is still limited. The natural method of human reproduction has developed during the course of millions of years of evolution, and still something sometimes goes wrong. Perhaps we can try to mimic that very thoroughly tested method in our quests to help infertile people, but to develop a completely new method of reproduction and expect it to work within a few years from its invention could quite reasonably be seen as a cause for concern.

Playing God At its core, the playing God argument states that we should not pretend to be God – that we should not do things that only God is supposed to do. The most under­ standable version of the argument is very similar to the version of the argument from unnaturalness constructed previously. God can be defined as the omnipotent and

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omniscient being who can do complicated things such as create life because, as an omniscient being, God knows all the possible consequences of such actions and knows when and how to perform them and when not to do so. Human beings do not have such knowledge and should therefore refrain from actions that could have cata­ strophic, far-reaching consequences way beyond their control and understanding. As such, the playing God argument is a general warning against hubris and appeals to many people regardless of their religious views. The other versions of the argument easily lead us to debates that are theological rather than philosophical in nature. It is often held that giving life (and taking it) is God’s prerogative and something that humans should not do. Based on this conviction, the practice of human repro­ ductive cloning is condemned. The theological debates start from here. Humans do create life by engaging in natural reproduction and by making use of various infer­ tility treatments, and the Bible actually commands people to multiply. There is no straightforward way of drawing the line between acceptable and unacceptable ways of reproducing. Another version of the playing God argu­ ment tries to answer to this challenge by resorting to the ideas of naturalness: The natural environment (created by God) sets some boundaries to the actions that we are allowed to perform. Here, the argument is very similar to the natural law version of the claim that actions are wrong if they are unnatural. The argument here could state that by looking at nature we see how humans are supposed to reproduce (in the way that God intended them to), and by transgressing those limits humans take the place of God – they play God. Although powerful within limited contexts, the categorical versions of the playing God argument are difficult because not all people see the lines drawn by God in the same places and because there are many who think that there is no God.

Against Dignity Many international protocols and treaties condemn human (reproductive) cloning as an act against human dignity. However, it is uncertain what exactly human dignity is and why it is violated by human reproductive cloning. There are at least five possible readings on what the term human dignity means. First, there is the view that dignity is given by God to all human beings. This dignity belongs to all humans equally. The second inter­ pretation of dignity comes from the writings of philosopher Immanuel Kant. According to Kant, humans are valuable beings because of their capacity to reason. In this model, it is those who have the capacity to reason who possess dignity because reason makes them part of the moral community. Contrary to what modern Kantians hold, Kant’s dignity does not belong to fetuses, small

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children, severely mentally challenged, or the senile. The third interpretation expands the circle of dignity holders beyond human beings. In the utilitarian tradition, it is not whether one is a human being or a rational being that matters morally but whether a being can suffer. In this framework, dignity belongs to all sentient beings. The United Nations Educational, Scientific and Cultural Organization’s (UNESCO) Universal Declaration on the Human Genome and Human Rights gives the fourth possible reading to the term dignity. According to the declaration, dignity belongs to all members of the human family (to all who bear human genes), and all members of the human family deserve equal respect. The declaration does not go into great depths in defining what exactly is meant by human dignity and how it should be protected, but it explicitly prohibits all prac­ tices that are contrary to human dignity and of this it gives one example: the reproductive cloning of human beings. In the four models briefly described, dignity is some­ thing that equally belongs to beings who fulfill the criteria set for beings of dignity. However, there are also everyday usages of the word dignity that do not have this quality. We can say that someone has an extraordinary quality about him that makes him dignified (dignity belongs to important beings), we can admire someone for bearing her hardships with dignity (dignity is an attitude), or we may wish to die with dignity (dignity is a quality of events in life). It is not obvious in which of these senses we should understand human reproductive cloning to be against human dignity and why. Wherever dignity comes from, most authors consider a part of it to be a mystery. In this view, reproductive human cloning violates dignity in two ways. First, by engaging in it, we are violating the dignity in us. Second, by creating human beings by cloning, we are violating their dignity. This could also be explained using the more everyday meanings of the word by saying that if we clone humans, our attitude to the mystery of human life is undignified, and as human beings we act in an undignified way.

Using People as Means Many arguments against human reproductive cloning employ the Kantian idea that we should never treat people as a mere means. The general term for this idea is the humanity principle, but similar concerns are some­ times addressed in the language of instrumentalization. Those who use this line of argument maintain that by intentionally creating a clone, we are treating the pro­ duced human being as a mere means and are not treating it also as an end in itself, as we should according to the Kantian doctrine.

The seriousness of this accusation depends partly on the situation. If cloning is used as an infertility treatment, it is questionable whether it violates the humanity prin­ ciple any more than any other intentional act of reproduction. It is virtually unheard of that anyone would reproduce only for the sake of the forthcoming baby. Even disregarding the more dubious motives such as wanting to save a marriage or to feel useful, it is often the need to become a parent that drives people to repro­ duce, and having a child then fulfills that need. As long as we do not wish to condemn parents for wanting to have children, it may be hypocritical to condemn those who wish to use cloning as an infertility treatment, especially if there are no alternatives. It is also important to note that the humanity principle does not forbid using people as means as such; it only condemns using them as a mere means. If the cloned child will be loved as herself, she is arguably not used as a mere means. However, if cloning is used to replace a deceased loved one, the treating as a mere means accusation seems far more plausible. The clone will not be the same person, and there is a danger that the clone is not treated, loved, and respected as a person in her own right but as what the other person was. In these circumstances, cloning would violate the humanity principle. Similarly, if cloning were used to bring back important people, to create people to perform certain tasks in society, or to make copies of oneself, the resulting clones would be treated as a mere means – not to mention all the other wrongs inherent in these examples.

Copies UNESCO’s Universal Declaration on the Human Genome and Human Rights also states that humans possess a right to (genetic) uniqueness, and this is probably one of the reasons why they consider human cloning to be wrong. As a categorical objection, this claim is problematic because of the existence of identical twins. Actually, a clone would, in most cases, be less of an exact genetic copy of its sibling than an identical twin because the mitochondrial DNA of clones comes from the ova used and not from the nuclei transferred. This makes clones, even genetically speaking, unique. The case in which the egg and the nucleus came from the same person would be an exception. Even in this situation, however, if we take into account that a human being is more than his or her genes, a clone would be unique because it would be brought up in a different environment, it would be subject to nonrepeatable experiences in changing surroundings, and it would thus develop into an individual of its own. Despite the previous considerations, attempts have been made to argue that intentionally creating a genetic copy of a human being would violate the right to (genetic)

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uniqueness, but the existence of identical twins would not. Most people holding this view seem to believe that the uniqueness of identical twins is based on their natural or God-given origins, and that human actions could not result in similar uniqueness. Also, a distinction is some­ times made between natural accidents and deliberate human design and manipulation, where the former is thought to be acceptable or ethically neutral and the latter a moral wrong. However, would failing to be genetically unique pre­ sent a problem for the clone? It has been suggested that clones might be deprived of certain important aspects of human life and that this makes intentional attempts to clone humans wrong. The arguments here are that the clone would live its life in the shadow of the human it was cloned from, and that the clone’s future would not be as open as those of other people. The idea behind the argu­ ments is that although it is relatively clear that our identity and personhood are not straightforwardly deter­ mined by our genes, it is possible that certain expectations are projected on clones by others and by themselves; their lives are compared to the lives of those from whom they are cloned, and arguably their destinies have been partly foretold. A life in the shadow of another human being would, arguably, diminish the clone’s possibility of living a life that is, in the full sense of that word, his or her own. Also, knowing too much about our genetically deter­ mined (to the degree that it is genetically determined) future would, so the argument goes, make life less of a discovery.

Threat to Humanity Many people think that it is not so much any particular aspect of cloning that is wrong but that cloning generally, along with other modern means we are developing in an attempt to master future generations, is a part of an ethos that threatens humanity as we know it. This view usually combines arguments from naturalness, playing God, dig­ nity, using people as means, and the peril of uniqueness. In reproductive cloning, we fail to respect nature, we assume the role of God, we fail to respect human dignity, we use people as means, and we destroy the very core of what it means to be human. Together, these will destroy the human way of life (as we know it). One of the problems seen is the blurring of the boundary between humans and nonhumans. This worry can be traced back, for instance, to the idea of what is natural or to the idea that dignity comes from God. Although clones would have human genomes and would not be artificial, they would still be, in a sense, manufactured. Similarly, cloning as a method of asexual reproduction is considered to threaten the core of humanity. For many, sexual reproduction is something

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that essentially belongs to humanity. It is, after all, often thought that reproducing not only gives meaning to life but also is the meaning of life. Furthermore, cloning is seen as a threat to the giftedness of life; to manufacture offspring is to distort the idea of life as a gift. On a more practical level, it is feared that cloning would disfigure personal identities, family life, and social structures by creating new kinds of people who would not fit into the existing structures. These ideas are often dismissed as conservative – as unjustified resistance to change. After all, humans and human societies have changed before and we seem to have survived. Social institutions and family structures are by no means stable, and various scientific discoveries have altered our worldview and our view of ourselves as persons. Also, it is not as if morality or what it means to be human have remained unchanged throughout human existence; the idea that each individual human life is of immeasurable value is, for instance, a relatively recent phenomenon. However, there is possibly something to the arguments that cloning presents a threat to humanity as we know it. Actually, it is quite obvious that if cloning becomes a viable method of human reproduction, it will radically change the way we think about human life and, hence, humanity as we know it will also change. Whether this is necessarily a bad thing is another question. Still, one could take these arguments, like many of the others pre­ sented previously, as a warning to proceed with caution. In the past, changes in the human way of life have been relatively slow. Modern technologies provide us with opportunities for accelerated change, and it is difficult to foresee how humanity will react.

Harms, Risks, and Research Ethics A number of pragmatic arguments can be presented against human reproductive cloning. First, the method is not safe. It took 277 attempts to fuse a nucleus with an egg to make Dolly, the cloned sheep. In the subsequent attempts to clone animals, it has become clear that cloned mammals typically suffer from various ailments, includ­ ing the large offspring syndrome, respiratory distress, circulatory problems, immune dysfunction, and kidney and brain malformations. It is to be expected that human clones would display similar lethal or potentially lethal conditions, and this should be reason enough to refrain from even thinking of using this technique (at least for now). Furthermore, with the low success rate, every attempt to clone includes a loss of eggs and embryos. Many people think that embryos should be protected and that all human biological material should be treated with some respect, and these people would probably find the loss of

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eggs and early embryos an unacceptable price to pay. However, even if a more lenient view is taken on the moral status of embryos, or any biological material of human origin, that still leaves open the question of where the ova come from and who will carry the clones to term. If we are thinking of cloning as an alternative form of fertility treatment, women who are desperate for a child might give their consent. After all, women already subject themselves to hormone treatments and egg har­ vesting and various other unpleasant procedures in their quest to have children. The problem with cloning is that before it could be attempted for real, much more research should be done, and this research should be done on humans. According to the current scientific understanding, the technique cannot be adequately tested on other mammals because different species seem to react differently to the practice. The research would require a huge number of eggs, and this would necessitate many women agreeing to undergo hor­ mone treatments and egg harvesting, both of which are risky and unpleasant. Also, women would probably be needed to provide wombs in which the fetuses could develop. Although informed consent could possibly jus­ tify this, it can still be argued that if the need for volunteers increases significantly, the risk of exploitation is also likely to increase. However, there are also other problems. In terms of research ethics, it might be that research into human cloning cannot (ever) be done, even if there is nothing categorically wrong with human cloning as such. Currently, it is only the very early embryos on which experiments are allowed, but animal experimentation tells us that the lethal defects often become visible only after birth. No ethics committee would allow controlled trials on cloning up to the time after birth, and without such research we will not know whether human cloning could be safely performed. It might well be that human reproductive cloning remains a mere possibility because research into it cannot be permitted. Also, we can only hope that, with the expected risks, no one will attempt to clone humans without prior research. Should cloning someday, however, become a method of human reproduction, it has been suggested that this could challenge the survival of the human race. Although in theory cloning as a method of reproduction could threaten genetic diversity, it is doubtful, whether in prac­ tice, this would happen. The number of people who could (because of limited resources) or would (like to) use this method is likely to remain limited. Also, even if many people opted for the method, it is only if individual genomes were mass-produced that the human gene pool would become dangerously narrow. In this case, however, the ethical issues would expand beyond problems related to cloning as such.

Reasons for Cloning There are roughly two reasons given for human reproductive cloning. The first reason is to help people who could not otherwise reproduce to have their own genetic children, and the second reason is to avoid certain mitochondrial diseases. The right to reproduce and the right to have biological children of one’s own are highly valued. The right to start a family is considered to be a human right. There are some limitations regarding who is allowed to access fertility treat­ ments to overcome natural limitations to reproduce, but generally our current values are very pro-natal. Even people who are very skeptical about cloning are usually moved by examples such as the following: Imagine that a couple and their newborn child are involved in an accident that kills the child and leaves the parents infertile. Many would think that replacing the lost infant in that situation would not be such a wrong thing to do. Obviously, the situation in this parti­ cular example is such that some of the concerns that people have about cloning do not arise. The child would not live in anyone’s shadow; the newborn had not really developed into a person of one’s own, so no comparisons between the original and the clone would arise. Also, many would see the motives in the case to be the right kind, and this case would not pose a threat to the existing social structures either. If we consider that the right to reproduce does not only belong to people in heterosexual relationships, there are many who could be helped with cloning to produce a child whom they could call biologically their own. Lesbian couples could use ova from one of the partners and the genetic material from the other to create a child together. Single women could use their own eggs and their own genetic material to have a child of their own without the need of alien DNA. A sterile husband could have a child who would carry his DNA by combining his genetic material with his wife’s ova. Also, there would be similar opportunities for single men and gay couples, provided that someone is willing to donate the eggs and carry the pregnancy to term. Another suggested positive outcome of human repro­ ductive cloning is the possibility of avoiding certain mitochondrial diseases. (These are, however, relatively rare.) The mitochondria we inherit come only from the mother, and if the mother has a mitochondrial disease, it will be passed on to her children. If the process of nuclear transfer could be mastered, a couple could have their own (mitochondrial-disease-free) genetic offspring by using an egg from a donor. This would involve fertilizing the woman’s egg with the man’s sperm, then transferring the nucleus into an egg with healthy mitochondria, and finally implanting this egg to the woman’s uterus. This practice would, I assume, meet with far less resistance

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than other types of human reproductive cloning. It would not involve making a copy of another human being, and the social parents of the child would be almost entirely its genetic parents as well.

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See also: Dignity; Genetic Engineering of Human Beings; Playing God; Savior Siblings.

Further Reading Lessons There are many arguments against human reproductive cloning, but none of them seems to be conclusive. However, the fact that there are so many arguments and so many people presenting these arguments should make us pay attention. Also, although the yuk reaction is not usually recognized as a moral argument, the reality that the majority of people are horrified of cloning should not be dismissed too lightly. The possibility of human cloning causes significant fear and distress, and these anxieties should be addressed as moral costs of cloning. This is especially true because it seems that the expected benefits of reproductive cloning will be marginal. Research leading into human reproductive cloning would require not only trials on very early embryos but also carry­ ing some fetuses to term. With the expected risks, research proposals on cloning would not gain ethical approval. Without proper research, to attempt human reproductive cloning, again with the associated risks, would be wrong. It does seem that unless the outstanding safety issues on research into human cloning can be addressed, we cannot conduct the necessary research and, consequently, cannot justifiably attempt human reproductive cloning. Human reproductive cloning is a high-risk, expensive enterprise with, even in the best-case scenario, only minor benefits. It does not seem to be an absolute wrong, and it should not be condemned as such. However, because, as it now seems, the safety issues cannot be resolved and research into human cloning would cause suffering and place the study subjects under unacceptable risk, it should not currently be attempted. Even if the safety issues could, sometime in the future, be properly addressed, it might still be wrong to invest scarce public money into research with so few benefits to human welfare.

Bruce D (1998) Cloning – A step too far. Journal of Genetics and Ethics 4: 34–38. Chadwick R (1989) Playing God. Cogito 3: 186–193. Chadwick R (1982) Cloning. Philosophy 57: 201–209. Gurnham D (2005) The mysteries of human dignity and the brave new world of human cloning. Social and Legal Studies 14: 197–214. Habermas J (2003) The Future of Human Nature. Cambridge, UK: Polity. Harris J (2004) On Cloning. London: Routledge. Ha¨yry M (2003) Philosophical arguments for and against human reproductive cloning. Bioethics 17: 447–460. Ha¨yry M (2004) Another look at dignity. Cambridge Quarterly of Healthcare Ethics 13: 7–14. Ha¨yry M (2010) Rationality and the Genetic Challenge: Making People Better? Cambridge, UK: Cambridge University Press. Ha¨yry M and Takala T (2001) Cloning, naturalness, and personhood. In: Thomasma DC, Weisstub DN, and Herve´ C (eds.) Personhood in Healthcare, pp. 281–298. Dordrecht: Kluwer. Holm S (1998) A life in the shadow: One reason why we should not clone humans. Cambridge Quarterly of Healthcare Ethics 7: 160–162. Kass L (2002) Life, Liberty and the Defense of Dignity. San Francisco: Encounter Books. Midgley M (2000) Biotechnology and monstrosity: Why should we pay attention to the ‘yuk-factor’? Hastings Center Report 30: 7–15. Takala T (2004) The (im)morality of (un)naturalness. Cambridge Quarterly of Healthcare Ethics 13: 15–19.

Biographical Sketch Tuija Takala is Academy Research Fellow at the Academy of Finland and Adjunct Professor of Social and Moral Philosophy at the University of Helsinki, Finland. She is president-elect of the European Society for Philosophy of Medicine and Health Care and holds a number of international editorial positions. She has published widely on a variety of bioethical topics in journals, including Bioethics; Cambridge Quarterly of Healthcare Ethics; Journal of Medical Ethics; Medicine, Healthcare and Philosophy; and Theoretical Medicine and Bioethics. Her current research interests lie in the conceptual, methodological, and theoretical aspects of philosophical bioethics.

Codes of Ethics J Pritchard, University of Central Lancashire, Preston, UK

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, Volume 1, pp 527–533, ª 1998, Elsevier Inc.

Glossary Client A person for whose benefit work is carried out by a professional. For medical practitioners, a client may also be called a patient. The term ‘client’ can be compared and contrasted with a customer or consumer, who is the object of business and/or commerce as opposed to a profession. Code A collection of aspirations, regulations, and/or guidelines that represent the values of the group or profession to which it applies. Ethics Moral philosophy generally or a particular philosophy; the term can be used interchangeably with the word ‘morals.’ Kantian An adjective deriving from Immanuel Kant; used to describe Kant’s own work and to describe the work of other philosophers and theories that share Kant’s priorities and approaches, notwithstanding that they may differ quite significantly from Kant’s work itself. Nontraditional professions A large group of professions generally including accountancy, banking, engineering, management, social work, and almost all varieties of ‘white collar’ work. All forms of artists and sports people may be called professionals, but it is suggested that in such case the word is used in a different way to mean either not-amateur or expert. Practice The work or business of a professional. Interestingly, while many nontraditional groups have

Introduction Codes of ethics are those bundles of intentional or beha­ vioral requirements that members of a profession or other group must comply with in order to remain part of the group. A code can be formal, that is, written, or informal, not presented in written form but nevertheless identifiable as prescribing certain agreed upon standards of practice and values, usually through common training and peer pressure. Whether or not a written code exists, the expres­ sion ‘code of ethics’ can extend beyond the document itself and include disciplinary functions and variations in prac­ tice, either written or informal. In the same way the code can draw on the underlying but shared morality of the group members. This might be of great importance in the

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claimed professional status, few have adopted the word ‘practice’ to describe their work. A professional who is in practice may be called a practitioner. Profession A group of workers having common values and aims. Philosophically, the word may be used to indicate a common moral purpose, for example, doctors may have a duty to promote health, which is understood as a moral good. Professions may be self-governing, that is, without interference or supervision from people or bodies who are not members of that profession. The word is used popularly to describe any group of workers having specialized knowledge and training, for example, computer scientists or broadcasters. Professional Like ‘profession,’ this word can be used to indicate a moral dimension to work carried out or the individual doing that work, or it can be used similarly to words such as ‘expert’ and ‘conscientious.’ In the moral use a professional will have a duty to try to do beneficial work for a client. In the wider sense it may be used to describe any member of a service rather than a manufacturing industry. That said, many professionals are employed in every aspect of industry and commerce. Traditional professions A group of professions generally including, but not limited to, medicine, law, the church, and the armed forces. Education may be included, although this can also be classified as vocational along with nursing.

interpretation of what a general principle means in terms of a particular profession. Codes will vary from one group to another. Where a code contains details of disciplinary procedures for breach of its provisions, this may be an indication that the code belongs to a self-governing, structured profession, for exam­ ple, law or medicine. Where codes are short and contain a list of very general moral aims it may be an indication that the code is aspirational or that the particular profession is little more than a loose association of members with com­ mon interests. Codes can be written for the benefit of members, clients, and/or the public at large. They may be used for various purposes from licensing, to compliance, to marketing. It may be helpful to see these different uses as ranged on a continuum from quasi-legal requirements

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through moral prescriptions to mere advertising puffery. Very often a particular code will comprise a combination of these features and serve a number of different purposes.

Increased Use of Codes Interest in codes of ethics has increased tremendously in the decades since the Second World War. One reason for this in relation to research and medical practice is that they were seen as a way of protecting patients and participants against a repeat of the kind of inhumane experimentation carried out by Nazi doctors during the war. Once the spotlight fell on research practice it became clear that unacceptable procedures were very widespread. There were experiments being carried out in many other coun­ tries as well that failed to look after the participants. The ethical issues of research and scientific practice are now firmly on the agenda. Generally, there is much greater awareness throughout the developed world that respect for human rights must be considered at every stage of research. The adoption of a code of ethics can play an important part in putting that awareness into practice. Public interest in ethical conduct has widened from med­ icine to almost every sector of modern life, including the work of other professions, the business and service industries, and public service. While most of the traditional professions have had codes for a long time, many codes have been revised and extended. Professional groups can no longer assume that clients will accept as good practice what they say is good. Clients are much more aware of their own rights. Better communications and wider media coverage of legal cases of professional negligence and malpractice have combined with this to level out the balance of power between professionals and clients. A code of ethics can be an important vehicle to help maintain this delicate balance. The use of codes of ethics extends far beyond profes­ sional barriers. It is common for trade associations to adopt them, sometimes in a bid to acquire professional status. Corporations and institutions may have codes of ethics that warrant to their customers and to the public what practices and priorities compose the corporate image. Increased use of codes is the result of a variety of reasons. Codes themselves come in a variety of forms and serve several different functions. The Form of Codes Codes come in many different forms and may be formal (written) or informal (oral). They bear a variety of names: codes of ethics, codes of professional conduct, and codes of practice are the most common forms. A code of ethics may also appear in the form of a charter or mission statement. While the names are used interchangeably,

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three broad categories are usually identified that give insight into the purpose of the code. N. G. Harris and M. S. Frankel both identify three groups, but their divisions are slightly different. Harris’s code of ethics corresponds exactly to Frankel’s aspira­ tional group. They differ in their classification of the other two groups. Frankel distinguishes between educa­ tional and regulatory codes, whereas Harris includes both aspects in his code of conduct, though they serve different purposes. The main difference in classification is not in the content but in who the reader of the code is. Harris combines educational and regulatory clauses in a code of conduct that he classifies as a document prepared for the benefit and regulation of the members of the group. Harris’s third group, codes of practice, is distinguished by being written for nonmembers. These might be mem­ bers of the general public, customers, students, or clientele of the group and may include the members, too. By acknowledging this, Harris identifies a category that is halfway, as it were, between a code and a charter or mission statement. Charters and the like are generally imposed on or designed for the public at large rather than any special group. The different classification is unimportant in practice, as both writers correctly point out that most codes are a mixture of all categories and can appear in almost any form. The following paragraphs follow Harris’s classification. Codes of ethics usually consist of a short set of princi­ ples, for example, ‘‘every member shall conduct themselves with the utmost honesty and integrity.’’ They are very general in nature. This group can be classified as aspirational. The provisions of this type of code are so broad that it is likely that all such codes will be similar, although the groups adopting them may be very different, from doctor to engineer, and school teacher to licensed victualler. How a code of ethics acquires mean­ ing in terms of the practice of a particular group will vary from one group to another. Understanding what constitu­ tes the ‘utmost integrity’ for dentistry, for example, may be learned through professional education, apprentice­ ship, or discussion with other dentists, and most likely through all of these things. Development of such under­ standing may happen gradually over a whole career. Generally a code of ethics will be prepared for members of a group as an internal document. It will be addressed to professionals or employees rather than clients or custo­ mers. See the section titled ‘Theoretical framework of codes’ for an interpretation. Codes of conduct are also prepared for use within the group membership. They are more detailed than codes of ethics and give details of how a general duty will be manifested in practice. They may include detailed regu­ lations for special procedures, for example, what to do in an emergency or in what circumstances a general duty may be breached by the requirements of stronger specific

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duties. An example of a special circumstance may be that the public interest may sometimes justify breach of a general duty of confidentiality to a company or client. Disciplinary provisions may be included in this sort of code. The detail of codes are referred to again in the following section. In reality codes vary so much that it is helpful to look at actual examples. Codes of conduct can be extremely lengthy and sometimes contain extensive commentary on how the group interprets certain stipula­ tions in practice. They can be both educational and regulatory. Codes of practice are documents that, like codes of conduct, are more detailed and specific than codes of ethics. They are distinguished from these other two kinds of code by being written for a wider readership than members alone. This can include clients, customers, and members of the general public. They warrant to the readership the standards of practice that can be expected. It will be a matter of degree whether this warranty amounts to a promise or an aspiration. In the former case a complaints procedure may be in place whereby customers can complain of failures to realize standards specified. In some cases there may be included provisions for compensation to be payable. The inclusion of com­ plaints procedure may be an indication of the degree of commitment on the part of the group or organization to adhere to the provisions of the code. There will be tre­ mendous variations in the content of codes of practice as well as in the commitment with which they are embraced. Inevitably there will be some codes of practice that are little more than advertising puffery.

The Content of Codes While individual codes can be very different from one another, a large number of codes contain a basic corps of very similar aspirations. Common clauses relate to the need for honesty, fairness, and confidentiality in relation to a client’s affairs. Many codes, particularly those that apply to health care or social welfare, often contain refer­ ences to the principles of beneficence, nonmaleficence, respect for autonomy, and justice. Professional codes typically contain a provision whereby a member should not do anything that brings the profession itself into disrepute. This is interesting because it is not for the benefit of a particular client but for the benefit of other professionals and their clients and for the image of the profession in the eyes of the public at large. There could be instances where this kind of clause causes conflict between the interests of an individual client and the member’s duty to the profession as a whole. It is clear from the preceding section that the different forms of codes will vary greatly in length and detail. Most codes, though, share the feature that they begin with

general principles and then move to an expansion of how such principles translate into the work of the parti­ cular group. Thus it can be argued that codes are used in a way that is top-down, moving from principle to practice. As such it could be argued that codes do not adapt very easily to a bottom-up or case study approach to work, moving from particular circumstances toward deciding which principles to apply.

The Functions of Codes A code of ethics can have a variety of functions. The different types of code and their contents discussed in the preceding two sections in part make the main function of a particular code explicit. In a similar way some of the functions of codes are implicit from the theoretical frame­ work, discussed in the following section, in which they operate. Codes are not absolute documents and many comprise a variety of features and have several functions. When discussing the functions of codes inevitably one is talking about what codes could do and sometimes do rather than describing how any particular code operates. Codes of ethics can be seen as a mark of a profession. Harris ascribes the increase of the use of codes in part to this function alone. Codes can also be used as a warranty to customers and clients of how a business will conduct itself in regard to certain basic moral principles like honesty and fairness. In the context of a particular group, a code of ethics can provide an important focus for group loyalty and shared values. It should not be assumed that all the functions are positive. One negative function of codes is that, rather than improving standards of practice, they may actually serve to reduce them. This could happen in at least two ways. Firstly, if a code is adopted in a superficial way, for example, as a marketing tool in order to give the impres­ sion that a business intends to behave morally, it may be treated with contempt. Alternatively, the same code may be put in place to avoid statutory regulations being imposed on a business or industry. Thus by pretending to have moral standards, legal constraints are sought to be avoided. In these circumstances employees or customers seeking to implement the provisions of the code are likely to find their actions out of step with what management requires. The code, by misleading people about managers’ intentions, makes the situation worse than had it never been adopted at all. A second situation where a code could have a negative effect takes place with complete sincerity. Where codes contain so much detailed information about what stan­ dards are required and what conduct will constitute those standards, there is a danger that the people who apply such a code will conform so thoroughly and precisely that the effect is that they, in fact, suspend the moral

Codes of Ethics

dimension of their work. They apply the provisions of the code in exactly the same way as detailed legal regulations are applied. As such the provisions of the code are not treated as guidelines that ought to be followed but as laws that must be followed, allowing no room for the exercise of professional discretion. There is a delicate and fine balance to be maintained between what ought to be done by a professional who has the expertise and experience to make independent deci­ sions about what is required in particular circumstances and what the law or, arguably, an overprotective, govern­ ing body prescribes must be done in all circumstances all of the time. The ability to maintain this balance without overbearing regulation can be seen as a central feature of a professional as opposed to some other kind of worker. What a professional is or could be will be discussed more fully in the next section. The difficulty in practice, and why this possible feature of codes, and indeed toorigid law, is regarded as a negative function, is that it inhibits the worker from being free to respond to unfore­ seen circumstances. The human beings who make up a clientele, while they may be similar, do not operate in standard or predictable ways. What is good for one cannot be assumed to be good for another. This is a danger of any standardization involving people, and care should be taken that codes of ethics do not make the position worse rather than better.

Theoretical Framework of Codes Interpretation of how the broad principles set out in codes of ethics translate into conduct will be different from one group to another. In the earlier section ‘The form of codes,’ it was suggested that a code acquires meaning for members through discussion, education, and training. While this may be true, it is not true to say that all readers of codes have an adequate opportunity of understanding how a code ought or is intended to be interpreted. Edgar says in relation to a social work code that interpretation necessarily operates outside the scope of the code itself. This is a general feature of codes and is acknowledged to be problematic. In the context of traditional and more structured nontraditional professions there is an opportu­ nity to discuss interpretation of the code because qualification for membership in the group requires long training at the outset and, in many cases, continuing education as a condition of the renewal of a certificate of registration or practice. That is not to say that the opportunity is necessarily taken. The following section looks at some individual examples by way of illustration. Some corporations hold training sessions on interpreta­ tion when a code of ethics is introduced. A significant number of codes are adopted without any guidelines on interpretation at all. The code of ethics may be the main

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vehicle for the expression of the group’s values and norms, but what these mean in practice may not be clear and/or may only be understood through practice over a period of years. As such, codes must be seen as signposts and partial tools in the ethics of an organization or group and by no means as ends in themselves. Interpretation may take place on an ad hoc basis, each case being dealt with in accordance with the decisions and moral opinions of the individual in charge, or through the application of a consistent and coherent ethical theory. Probably every possible variation between these two extremes will apply in practice. How a code is interpreted will depend on the moral beliefs of the group. These may be implied or explicit. They may also emerge from the moral beliefs of indivi­ duals in the group. The predictability of beliefs held by members of a group may in part depend on how well the culture of the organization is articulated. There is a cer­ tain circularity between group culture and codes whereby in some cases the culture will come before the code is adopted and sometimes afterward. This will impact how the code is or can be interpreted in practice. If the code is written out of and reflects the moral values of a culture, then a correct interpretation can be obtained by looking at that culture. In this situation the code is a codification of values already held by an organization. The culture has made the code. If, however, the code has been formulated with the intention of trying to change the culture of an organization, then interpretation must not come from going back to the existing culture but must come from outside the organization or be imposed by new manage­ ment policies. In this sense the code makes the culture. In the latter situation training in how to translate the provi­ sions of the code into practice will be essential if the code is to succeed. In the former case training will not be so important, as interpretation draws on the existing values of those to whom the code applies. Historically, membership of the traditional professions was drawn from the same cultural and social background. It was almost always the case, therefore, that members of a group shared values and had a common understanding of what was moral. That is not to say that members all behaved morally or did not have differences of opinion, but the expectancy of cultural understanding was very high. As such, professions were most likely to come under the first category previously referred to. Thus any code reflected existing and shared values of a group. A code of ethics was perhaps helpful but was not an essential source of information on their values. The position today is very different. There are both more associations with codes and their membership is much more varied. Society itself is much more diverse and communities are made up of people from different religious and cultural backgrounds. Members of a group may hold a great variety of different views. As such,

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groups are more likely to fall into the second category and to adopt a code that sets out values to which they as a group aspire. In these circumstances training is likely to assist members to understand and identify with the values of the group. What kind of training is appropriate will vary from group to group and will also be subject to external con­ straints like time and resources. The subject matter of the training may be techniques in problem solving, group dynamics, and case work, and may include varying degrees of moral philosophy. There is a lot of room for discussion about how moral philosophy relates to codes of ethics. Harris argues that professional codes are underpinned by Kantian moral theory, although Chadwick disagrees that this view is based on a correct interpretation of Kant’s work. Other codes may be deliberately written in adherence with the principles of a particular theory. Yet others may reflect a variety of different moral positions and lack any coherent or consistent analysis, having emerged out of practice and the need to respond to different situations. Many codes are written in a composite way, which may include adher­ ence to general principles but may be revised to accommodate changes in law, practice, or current think­ ing. The more specific the provisions of a code, the more likely it is that a code will need to be revised in response to external changes. The making of codes can be both proactive, in that they prescribe change that is desired, and reactive, in that they respond to changes which are mandatory. One aspect of the debate about codes, how they are or should be formed, involves a discussion about what consti­ tutes a profession. The theoretical framework, uses, and functions of codes will vary in accordance with how ‘profes­ sion’ is defined. If a narrow view of profession is adopted that allows only those groups that have an intrinsic good inten­ tion to be classed as a profession, then a code must necessarily reflect that central moral function to be of any value at all. This view might not be limited to the work carried out, but may extend to the person doing the work. Thus a professional is a good person by definition. Medicine has the central value of promoting health. Some could argue that this is the only value appropriate to medicine, and thus a code of ethics is not required because that is all it would say. Codes of conduct may still be appropriate for giving practical advice on standards of behavior. Others could take a much wider view and include in the term profession any group that has a common expertise or access to a particular body of knowledge. In such a classification there is no essential moral position applicable to the members or the work carried out by those members. A code of ethics may thus be an important vehicle whereby moral values and required standards of practice are communicated both by and to the members. It may be the only source of moral

limitation placed on members. In this kind of classification an individual professional has no essential moral nature.

The Experience of Codes by Different Groups and Conclusions The variations in the use made by different groups of codes of ethics can be illustrated by a brief look at two groups of workers, namely, doctors and nurses. Inevitably there are differences in the experience of these groups in different countries, but even so it seems likely that the overriding implications of the experience of those groups in the United Kingdom and the United States can give insight into codes and professionalism generally. There are quite significant differences between the groups in these two countries anyway. All nurses in the United Kingdom must be registered with the UKCC, which is itself constituted by statute. The UKCC has wide powers relating to the training, guidance, and discipline of its members. As such, all nurses must adopt the various codes of ethics and conduct specified by that body. There is no equivalent body in the United States, and membership in the American Nurses Association (ANA) is voluntary. Generally there is very little training or discussion of ethics in a formal way. Members of the ANA adopt its code as a condition of membership. While the ANA has some powers in relation to guidance and representation of nurses, many aspects of nurses’ education, registration, and discipline are dealt with by different state boards. Partly as a result of this position there is scope for much greater variation in the standards of practice and moral points of view of nurses in the United States than those in the United Kingdom. At the same time it could be argued that there is more scope in the United States for nurses to exercise profes­ sional discretion, and thus it is easier for them to argue that nursing is a separate and independent profession. On the other hand, it is now compulsory that trainee nurses in the United Kingdom all have some training and discus­ sion of ethics both generally and in relation to the interpretation of their code. As such, nurses in the United Kingdom are increasingly aware of the signifi­ cance of ethics to their work and the impact of their code. They also have a strong group identity. Both groups of nurses have scope for the exercise of some professional discretion, but in a wide variety of circumstances must subject their professionalism to the discretion exercised by doctors. Doctors in the United Kingdom, while subject to var­ ious advisory and disciplinary bodies and even some specific ethical guidelines, do not subscribe formally or uniformly to any code of ethics. The public perception of doctors both historically and currently is that they are professionals. Doctors in the United States do have a code,

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but there is scope for diversity as practice registration is dealt with by individual states. They are publicly per­ ceived as professionals and would seem to have a high degree of scope for the exercise of professional discretion. Doctors in the United Kingdom receive very little formal training in ethics before qualification. That received afterward will be extremely variable and largely volun­ tary. While there is more opportunity for U.S. doctors to receive training in ethics or to discuss the issues in a formal way, it cannot be said that it is necessarily part of the experience of all doctors. The experience of codes of ethics and professionalism of these two groups is diverse both in relation to that of the same professionals in different countries and in relation to the other group. This difference exemplifies the great variety found in codes of ethics in terms of use, form, content, and theory. Nevertheless, even though there are great differences, it is possible to gain an impression at least of how codes of ethics operate across the board. That an example has been used from health care should in no way be taken as excluding non-health care workers from the typicality of the experience. That typicality is diversity.

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See also: Kantianism; Medical Codes and Oaths; Theories of Ethics, Overview.

Further Reading Chadwick R (ed.) (1994) Ethics and the Professions. Avebury: Aldershot. Edgar A (1994) Narrating social work. In: Chadwick R (ed.) Ethics and the Professions. Avebury: Aldershot. Frankel MS (1989) Professional codes: Why, how and with what impact? Journal of Business Ethics 8: 109–115. Gorlin RA (ed.) (1994) Codes of Professional Responsibility, 3rd edn. Washington, DC: The Bureau of National Affairs. Harris NGE (1994) Professional codes and Kantian duties. In: Chadwick R (ed.) Ethics and the Professions. Avebury: Aldershot. Harris NGE (1989) Professional Codes of Conduct in the United Kingdom: A Directory. London: Mansell. Koehn D (1994) The Ground of Professional Ethics. London: Routledge.

Relevant Website http://ncraonline.org/NCRA/codeofethics/

Collective Guilt G Mellema, Calvin College, Grand Rapids, MI, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Collective guilt The guilt attaching to a collective group for a harm for which the collective is either responsible or for which the collective is tainted due to the wrongdoing of a moral agent or agents outside the collective. Collective responsibility Responsibility for a state of affairs borne by a collective consisting of two or more moral agents. Metaphysical guilt A term coined by Karl Jaspers to describe a collective guilt based upon the idea that a person’s identity is shaped by the group, that choices of

Introduction Collective guilt attaches to a group consisting of moral agents as the result of the group bearing moral responsi­ bility for a harm that has occurred. Collective guilt can also attach to a group of those who are tainted by others bearing moral responsibility for a harm. Typically, the collective to which the guilt attaches will subsequently experience guilt for this harm. Suppose several students from the same high school bear collective responsibility for murdering a victim, and they subsequently feel guilt for this state of affairs. Their guilt may be described as a collective guilt. However, those who are tainted by these actions, such as other students from the same high school, may also experience feelings of guilt for this harm. If so, they likewise experience collective guilt. Two features of this account are noteworthy. First, although guilt is typically experienced when collective guilt attaches to a group, one need not have the experience of guilt in order to be a member of such a collective. And even if the members of such a collective experience guilt, this is not to say that they must be aware of experiencing guilt. The possibility is left open that they experience guilt in a less than fully conscious manner. Furthermore, the guilt experienced by those to whom collective guilt attaches is typically not a sense of personal guilt for a harm. Second, collective guilt is always relative to a harm that has in fact occurred. Those who attempt to bring about a harm and fail do not bear collective guilt for this harm, for it does not occur, though they can bear collective guilt for attempting to produce the harm, for this state of affairs does occur. In addition, at any given time a person might belong to various collectives that are collectively guilty for various states of affairs.

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people affect others in the group, and that guilt is produced as a result of this process. Moral taint That which results from the transferring of the contagion of an agent’s moral wrongdoing to others who are connected to this agent. Original sin The sin committed by Adam, the first man, for which the entire human race is allegedly held accountable. Shared responsibility Responsibility for the same state of affairs borne by two or more moral agents. Stain A term employed by Paul Ricoeur for moral taint.

Collective guilt cannot attach to those who neither belong to a collective responsible for a harm nor are tainted by the actions of those who do belong to such a collective. Such people are sufficiently remote from the harm that guilt fails to attach to the collective to which they belong. Accordingly, feelings of guilt are not reason­ able or appropriate in this type of context. Of course, people can have feelings of guilt that are unreasonable. But some connection must exist between these people and those responsible for the harm for them to share in the collective guilt and for their feelings of guilt to have a legitimate basis. There is a great deal of controversy over what this connection consists of. Some have maintained that collec­ tive guilt for the sin of Adam, the first man, extends to the entire human race. The Doctrine of Original Sin teaches that all human beings have in some manner sinned through Adam and have come to bear guilt for the sin that caused evil to enter the world. The collective that is guilty for the fall from Paradise then is judged to be all human persons, past, present, and future. All of humanity is said to bear collective guilt for what Adam did in the Garden of Eden.

Collective Guilt and Moral Responsibility One of the ways guilt attaches to a collective is when a collective bears responsibility for a harm that has occurred. In the literature, there are two primary ways in which collective responsibility is characterized. First, collective responsibility can come via the sharing of responsibility for the same state of affairs by two or

Collective Guilt

more individuals. Second, collective responsibility is sometimes characterized as the view that a nonhuman entity, a collective which is composed of human beings, bears responsibility for a state of affairs. The primary difference between these two notions is that an individual who does not bear responsibility for a state of affairs cannot be a member of a collective bearing responsibility for this state of affairs in the first sense, but it is possible for this individual to be a member of a collective bearing responsibility for it in the second sense. The first conception of collective responsibility can be illustrated by a case in which several people deface a public building by spraying graffiti on it. Each person bears moral responsibility for a common sate of affairs, the defacing of the building, and hence they share respon­ sibility for this state of affairs. Individuals who share responsibility for a harm do not always bear the same degree of responsibility for the harm. But when this type of collective responsibility occurs, each member of the collective bears at least some degree of responsibility. The second conception of collective responsibility can be illustrated by a variation of the same example. Here the members of an established gang deface a public building by spraying graffiti on it. But in this example not all of the members participate in the activity. Some members spray the building, others offer words of encouragement to those spraying the building, and others simply stand and watch. Of those who stand and watch, some secretly wish that the others would stop spraying graffiti and find some­ thing else to do of a less destructive nature. However, they do not express this wish, for they do not want to risk being expelled from the gang. In this example, it is plausible to judge that the mem­ bers of the gang form a collective that bears moral responsibility for the defacing of the building. But the responsibility of the collective does not automatically distribute to all of its members, as in the case of shared responsibility. Here those members of the gang who wish that the others would stop defacing the building arguably do not bear responsibility as individuals for the defacing, for they wish that the building not be defaced. If so, then the gang could be divided into those who bear individual responsibility for the defacing of the building and those who do not. But all the members of the gang still belong to a collective that bears moral responsibility for the defa­ cing of the building (since those who wish that the others do not deface the building are members of this collective as long as they do not in any manner express dissent to the actions of fellow gang members). The collective that bears moral responsibility is not itself a human being, but it is composed of human beings. Of the human beings who compose it, some bear respon­ sibility for the defacing of the building and some do not. Unlike shared responsibility, the responsibility of a col­ lective does not invariably distribute to all of its

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component members. But the members can nevertheless constitute a group that bears collective guilt. Some philosophers have held that a collective can bear moral responsibility for a state of affairs even if no mem­ ber of the collective bears responsibility for the same state of affairs. D.E. Cooper proposes an example of a club that closes due to a lack of esprit de corps among its members. He argues that the members are collectively responsible for the closing, but no individual member need bear responsibility for the closing. If cases such as this are possible, and there is considerable dispute as to whether or not they are, then collective guilt is likewise possible in situations where no member of the collective is respon­ sible for the harm producing the guilt. Then several people could bear collective guilt for a harm for which none of them bears individual moral responsibility. Those who support the notion of collective responsi­ bility are far more inclined to countenance cases in which at least one member of the collective bears responsibility for the outcome for which the collective itself bears responsibility. Consider the collective of German citizens during the Second World War. It has often been claimed that the German people were collectively responsible for the occurrence of the Holocaust. The vast majority of German citizens played no role in the events that led to the deaths of countless Jews, and hence they do not bear responsibility as individuals for the Holocaust. But var­ ious Nazi officials bear responsibility as individuals for the Holocaust as the result of their individual contribu­ tions to the events of the Holocaust. Accordingly, the collective of German citizens consists of some who bear responsibility and others who do not. The same is pre­ sumably true of those German citizens who experience collective guilt for the Holocaust: some but not all bear individual responsibility for it.

Collective Guilt and Moral Taint The other way that a collective comes to experience collective guilt is through being morally tainted by those who bear moral responsibility for a harm. Moral taint results when harm is produced by a certain person or group of persons, and the contagion of their wrongdoing is transferred to others who have had no involvement in bringing about the harm. Those German citizens who played no role in the events of the Holocaust were tainted by the wrongful actions of the Nazi officials who were involved in these events. These German citizens bear no moral responsibility for the events of the Holocaust, but, because they are tainted by the actions of the Nazi offi­ cers, they are in a position to experience and bear collective guilt. Anthony Appiah has led the way in philosophical circles in explicating this concept (his account is similar

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to an account of moral stain offered by Paul Ricoeur, but it is considerably clearer). According to his account, a person who is tainted by the wrongdoing of another moral agent experiences a loss of moral integrity. When a person who happens to have some connection to us produces harm, then our own moral integrity can be affected. Appiah applies moral taint to an understanding of the issue of divesting shares of stock in companies doing business in South Africa in the 1980s. A shareholder in such companies was not in any manner responsible for the harmful effects of apartheid, but he or she was nevertheless tainted by those practicing apartheid. Consequently, shareholders in these companies experi­ enced a loss of moral integrity. Appiah believes that a feeling of shame is appropriate when one is tainted by the wrongful acts of others. Feeling a personal sense of guilt is not appropriate to this situation, for one has no personal involvement. But the appropriateness of a feeling of shame makes possible collective guilt. Because I and several others feel shame over the wrongful actions of one to whom we are connected, the possibility exists that collective guilt attaches to us. Of course, it is not a fore­ gone conclusion that collective guilt attaches to people whenever they are tainted by the wrongful actions of another. Frequently people feel neither shame when they are tainted nor a sense of collective guilt. But the presence of taint is a condition that makes collective guilt possible. From this it follows that experiencing a sense of col­ lective guilt is not the same as experiencing a personal sense of guilt. Those holding shares of stock in firms doing business in South Africa need not feel a personal sense of guilt for the harmful effects of apartheid, but they can experience collective guilt. If they experience guilt at all with respect to apartheid, the guilt appropriate for them to experience is collective in nature. And the type of guilt appropriate for those German citizens who experience guilt as the result of being tainted by the harmful actions of Nazi officials is collective guilt. When one moral agent is complicit in the wrongdoing of another, then that agent is at the very least tainted by the other’s wrongdoing. Accordingly, they bear moral guilt for the harm it causes. However, complicity can take many different forms, and in some cases the compli­ cit agent becomes morally responsible for the resulting harm. Thomas Aquinas, drawing from the medieval list of accessory sins, distinguishes nine ways that one can become complicit in the wrongdoing of another (here­ after, the principal agent): by command, by counsel, by consent, by participation, by flattery, by receiving, by silence, by not preventing, and by not denouncing. Several of these require explanation. One counsels another when one provides pertinent information to enable or facilitate the wrongdoing, one is complicit by way of flattery when one encourages the wrongdoing or

commends the wrongdoer, and one is complicit by receiv­ ing when one covers for the wrongdoer. The first six involve action on the part of the complicit agent, and it is likely that one who is complicit in one of these ways bears responsibility for the outcome. This responsibility is then shared with the principal agent, and this shared responsibility becomes the basis of their collective guilt. Where complicity in one of these six ways falls short of incurring responsibility for the outcome, the complicit agent is tainted by the wrongdoing, and this becomes the basis of their collective guilt. The last three, silence, not preventing, and not denouncing, involve no action on the part of the complicit agent. According to Aquinas, one is complicit by way of not preventing only if one is both able and obligated to prevent the principal agent from acting. It is likely that one who is complicit by way of silence, not preventing, or not denouncing falls short of bearing responsibility for the harm resulting from the principal actor’s wrongdoing (American criminal law treats silence, not preventing, and not denouncing as at most misdemeanors. Prosecutors wishing to try a defendant as an accessory after the fact for the crime of another, a felony, must establish that the defendant actually performed an action in furtherance of the crime). If so, the accomplice is merely tainted by the wrongdoing, and taint becomes the basis of their collec­ tive guilt. Exceptions would include cases where agents are able to prevent significant evils from occurring with relatively minimal effort or inconvenience. Someone who observes a distraught teenage mother place her baby in a dumpster would incur moral responsibility for the failure to retrieve the baby, and this responsibility would form the basis of the collective guilt that attaches to this person and the mother.

Collective Guilt in Existentialist Thought In his book, Sharing Responsibility, Larry May argues that twentieth-century existentialist thought can shed light on questions connected with moral responsibility and moral taint. The understanding of the concept of responsibility in twentieth-century existentialist thought is shaped lar­ gely by the writings of philosophers such as Jean-Paul Sartre, Karl Jaspers, and Hannah Arendt. Writing in the years immediately following the Second World War, they struggled to come to terms with the widespread failure of their fellow citizens to prevent the horrible actions of the Nazis. May notes that they turned to existentialist thought in an effort to explain this profound failure, and they likewise appealed to the resources of existentialist thought to design an adequate theory of responsibility. To their way of thinking, an adequate theory of responsibility

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is marked by its ability to take seriously society and the problems that afflict it. Inspired by this tradition, May develops an existentialist approach to questions of group or collective responsibility. His approach is built upon the notion that groups have a very powerful influence over the members, and specifically over their attitudes and behavior. As a result of belonging to the group, one’s personal values undergo a transforma­ tion; people belonging to groups discover that the members influence and transform the values of one another. And along with this sharing of attitudes and values comes a sharing of responsibility for group actions. May argues that belonging to groups also tends to make people insen­ sitive to certain harms in such a way that they come to share responsibility for these harms. Sometimes groups are responsible for inaction. May refers to situations in which the members make a decision not to act as a collective omission. There are also cases in which people with the ability to form a group to prevent a harm from occurring fail to act, and he refers to this phenomenon as collective inaction. These putative groups can frequently be judged collectively responsible for their inaction, or even for the harms they fail to prevent. The members of these putative groups are not necessarily guilty for their inaction or for these harms; it is more appropriate for them to feel shame for their inaction or collective guilt for these harms. May emphasizes that there is the potential for great social good when people seek solutions of a collective nature, since groups are far more likely than individuals to prevent significant harms from occurring. May’s discussion is intended to push to the limit how we ought to think of agency and responsibility. People who are the products of Western culture tend to think of agency in individualist terms and to think of responsibil­ ity as set at a very modest level, and May is attempting to challenge these ways of thinking. He quotes Hannah Arendt as stating: This taking upon ourselves the consequences for things we are entirely innocent of, is the price we pay for the fact that we live our lives not by ourselves but . . . [within] a human community. (May, 1992: xi)

This statement provides a basis for understanding why the German people feel shame and a sense of collective guilt for the actions of Nazi officials. Because we live in a human community, Arendt believes that there is a sense in which we take upon ourselves the consequences of the harmful acts of others. Although the German people may have been entirely innocent of the actions of the Nazi officials, existentialists such as Arendt can help us to understand why they experience collective guilt. Another existentialist writer who has much to say about guilt in the context of groups or collectives is Karl

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Jaspers. Jaspers’s discussion is framed in terms of a parti­ cular type of guilt known as metaphysical guilt, and, although he does not offer a precise definition of this notion, it is quite evident on the basis of what he says that this notion is related to the notion of taint. Consider these words from his book, The Question of German Guilt. There exists a solidarity among men as human beings that makes each co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge. If I fail to do whatever I can to prevent them, I too am guilty . . . . That I live after such a thing has happened weighs upon me as an indelible guilt. (Jaspers, 1961: 36)

Jaspers speaks here about a type of guilt that is neither legal, political, nor moral. He describes it as a guilt that attaches to people for failing to prevent wrongs and injus­ tices in the world. And the expectations for them to prevent these wrongs and injustices is high. Even if they must risk their lives to prevent injustices, the failure to do so weighs upon them in the form of guilt that is indelible. In this passage Jaspers also makes a startling statement that human beings are co-responsible for every wrong and injustice in the world. People are first and foremost co-responsible for wrongs and injustices that are known to them. However, to a certain extent they are co-responsible for all wrongs and injustices in the world. Commenting upon this passage, May states that Jaspers comes danger­ ously close to stating that each member of the human race shares responsibility for all of the world’s harms. Two important ideas underlie the notion of metaphy­ sical guilt in Jaspers. The first is that a person bears metaphysical guilt only through being a member of a group or groups. An important element of Jaspers’s thought is that people’s identities are shaped partly through their group memberships. Who they are is shaped in part through the various groups to which they belong. For this reason it makes sense from an existentialist point of view to judge that some people in a group are impli­ cated by the actions of others in the group. But there is more to metaphysical guilt than member­ ship in groups. The second important element of metaphysical guilt is that individuals make choices regard­ ing the behavior of others in their groups. If others in one’s group are causing harms, then one must make a choice whether to act to prevent the harms, at least to indicate disapproval of the harmful behavior, or to do nothing. If one does nothing, then one has failed to distance oneself from these harms, and metaphysical guilt will attach to one who fails to distance oneself from these harms. Choosing whether or not to distance oneself from the harms that others in one’s group are causing is also closely connected to one’s identity as a person. In a real sense, one

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is choosing who to be when one makes this choice. Metaphysical guilt in this manner is not only based upon one’s actions, but it is based upon the concept of choosing to be a person of a certain type. If a person chooses silence when others are perpetuating harms, then the person’s choice of silence is the choice to be a certain kind of person. This type of choice is a crucial part of what enters into how Jaspers conceives of metaphysical guilt. It is different with moral guilt. There are situations in which one incurs both moral and metaphysical guilt by choosing silence when others are perpetuating harms. But it is possible for one to incur metaphysical guilt without incurring moral guilt. Sometimes the only way to prevent or speak out against certain harms is to risk one’s life; these cases are of special interest to Jaspers. One who chooses silence in these cases incurs metaphysical guilt, as has already been seen. But Jaspers seems to believe that it would be a mistake to judge that one incurs moral guilt as well in situations of this type. Although metaphysical guilt and moral guilt are frequently incurred jointly, this is not necessarily the case. In May’s opinion, shame or taint are the moral con­ cepts that come closest to metaphysical guilt. When someone bears metaphysical guilt because of wrongs committed by others, it seems that one can likewise describe the situation as one in which the moral agent is tainted by this wrongdoing. Of course, Appiah denies that taint involves guilt, but it is moral guilt that Appiah has in mind in making this denial. Metaphysical guilt, by con­ trast, seems to attach to people in the very sort of cases where Appiah would postulate the appearance of taint. Jaspers’s notion of metaphysical guilt is not, however, exactly the same as what Appiah describes as taint. As pointed out already, metaphysical guilt is also bound up with the matter of choosing one’s identity. One’s choice of whether to distance oneself from the harmful acts of others is partly a choice of who one is. Whether one comes to bear metaphysical guilt in Jaspers’s scheme is partly a matter of one’s relationship with other moral agents and partly a matter of what one has done in terms of choosing an identity. Taint is characterized by Appiah in terms of one’s relationship with other moral agents, and, regarding the choosing of one’s identity, his account is silent. This is not to say that the choice of one’s identity is completely irrelevant on Appiah’s account; by choosing to be a certain kind of person one will take actions that may preclude one’s being tainted. But what­ ever relevance we can find here is only incidental; by contrast, it appears to be essential to Jaspers’s understand­ ing of metaphysical guilt. May’s preference is to think of taint along the lines of what Jaspers suggests. He agrees with Appiah that taint is the right concept to employ in cases where people react with silence to the harmful acts of others with whom they

are associated. But it is preferable to take into account the question of who one is. The optimal way of understanding taint is that it is determined not only by what one does but also by who one chooses to be. Appiah describes a case in which one of the co-owners of a store is carrying a box of knives up the stairs from the storeroom while the other co-owner is about to sell a knife to a youth who, they both know, plans to use the newly purchased knife for murder. The co-owner coming up the stairs knows that if he hurries, his partner will sell the youth a knife from the new box; otherwise, his partner will select the one from the top shelf. Appiah believes that the partner is tainted by the stabbing if and only if the knife used in the stabbing comes from this box. Hence, on Appiah’s view, if he delays in coming up the stairs he escapes taint. But there is more to the story from the perspective of Jaspers. Suppose the partner decides to bring the box up at once, but he does not do so because the telephone begins to ring. Although the partner’s choice to bring up the box at once does not result in his actually doing so, he does make a choice. This may appear to be a trivial choice, but those in the existentialist tradition have repeatedly urged that choices such as this are choice of who one is. The partner is choosing to be a certain kind of person, the kind of person willing to be connected with a stabbing. For this reason a follower of Jaspers will argue that the choice itself is enough to taint the partner. Regardless of whether he follows through on his choice, he is nevertheless tainted. The view one takes about examples of this type has large implications for collective guilt. For, once again, collective guilt presupposes collective responsibility or moral taint. If one neither belongs to a collective respon­ sible for a harm nor is tainted by the harmful acts of another, then no reason exists for ascribing collective guilt. If the youth murders a person with his newly pur­ chased knife, and the knife was not from the new box, the co-owner is not tainted by the murder (on Appiah’s view), and there is no reason for the co-owner to experience collective guilt.

Collective Guilt and Contemporary Society People frequently express the judgment that groups or collectives are guilty for what has taken place or for what has failed to take place. In debates on abortion, for exam­ ple, those holding a pro-life position sometimes judge that society bears collective guilt for the occurrence of legal abortions. It is sometimes maintained that all human beings bear collective guilt for the atrocities of war that occurred in places such as Bosnia. And the dramatic rise in violent crimes committed by teenagers and preteenagers

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is another area in which society might be said to bear collective guilt. On the basis of the foregoing discussion, it is dubious that society as a whole bears collective guilt for abortion, civil warfare in other nations, or a rise in crime, for it is unlikely that all members of society are connected to these states of affairs either by taint or by collective responsibility. Moreover, it is sometimes a matter of con­ troversy whether the alleged harms (such as legal abortions) are in fact harms. Nevertheless, ascriptions of collective guilt for pro­ blems in contemporary society are important to take seriously. For although they are sometimes exaggerated, they frequently contain a core element of truth. Many people in our society are closely enough connected to the problem of teenage violent crime to warrant membership in the collective that experiences guilt. Thus, although society as a whole does not warrant membership in this collective, a sizable segment of society arguably does. And an additional segment of society no doubt is connected to the crimes committed by teenagers through taint. As May indicates, many of society’s problems can be adequately addressed only when the collective nature of responsibility for these problems is acknowledged. Accordingly, the collective guilt experienced by those collectively responsible for or tainted by these harms serves as a motivator to undertake solutions for these problems. This line of thinking suggests that collective guilt has the potential for playing a positive role in contemporary society. While the term ‘collective guilt’ often suggests something negative or even sinister in human life, there is clearly a positive dimension to the role it plays in the life of a community. As a community we can band together to find solutions to the problems that we and others experi­ ence. On an individual level, the experience of guilt can motivate a person to actions of a positive nature. But the effectiveness of an individual’s solutions to the problems of society is limited. Collective guilt, by contrast, has the potential for motivating an entire group to undertake the solutions of societal problems on a large scale. There are problems of a practical nature that arise when a group undertakes to solve the problems of society. Perhaps the greatest challenge lies in the initial organiza­ tion of a group of individuals into a unit that can undertake to solve these problems. But the presence of collective guilt is a factor that makes this organization more manageable than otherwise, for it motivates indivi­ duals to desire to participate in groups that can find solutions to these problems. Collective guilt also has the potential for leading a group of individuals to a greater self-understanding. The experience of guilt can function to shake a group out of its complacency, force it to concentrate upon a harm that has occurred, and take a new look at itself and

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its relationship with the harm. The collective guilt experi­ enced by the German citizens for the events of the Holocaust led these citizens to ask questions about them­ selves and their relationship with these events that they would not have been motivated to ask in the absence of collective guilt. In the end, they achieved a greater under­ standing about themselves and about human nature in general. In some cases, collective guilt has the potential for playing a type of purifying role in the consciousness of a group. When the group confronts the feelings of collec­ tive guilt and examines its relationship to the harm that has given rise to the experience of collective guilt, there is an opportunity to give expression to feelings of regret or remorse for the events associated with the harm. Depending upon the precise circumstances, this process could reasonably be regarded as a type of purifying pro­ cess. Collective guilt resulting from the phenomenon of moral taint is perhaps not the type of collective guilt for which the designation would be appropriate. But when collective guilt results from a situation in which a group bears collective moral responsibility for harm, there is reason for the members of the group to express feelings of regret or remorse, and this can result in the conscious­ ness of the group undergoing a process of purification. See also: Existentialism; Responsibility.

Further Reading Appiah A (1987) Racism and moral pollution. The Philosophical Forum 18: 185–202. Arendt H (1987) Collective responsibility. In: Bernauer JW (ed.) Amor Mundi, p. 50. Dordrecht: Martinus Nijhoff. Cooper DE (1968) Collective responsibility. Philosophy 43: 258–268. French P (1992) Responsibility Matters. Lawrence, KS: University Press of Kansas. Jaspers K (1961) The Question of German Guilt. Ashton AB (trans.). New York: Capricorn Books. May L (1987) The Morality of Groups. Notre Dame, IN: University of Notre Dame Press. May L (1992) Sharing Responsibility. Chicago: University of Chicago Press. Mellema G (1997) Collective Responsibility. Amsterdam: Rodopi. Morris H (1976) On Guilt and Innocence. Berkeley: University of California Press. Ricoeur P (1967) The Symbolism of Evil. New York: Harper & Row.

Biographical Sketch Gregory Mellema is Professor of Philosophy at Calvin College, where he has taught from 1975 to 1976 and from 1978 to the present. Mellema received his doctorate in Philosophy from the University of Massachusetts at Amherst in 1974. He was an Instructor at St. Olaf College from 1974 to 1975. He later earned an M.B.A. from the University of Michigan, a degree that qua­ lifies him to teach and write about Business Ethics. He is the author of four books: Individuals, Groups and Shared Moral

506 Collective Guilt Responsibility, Beyond the Call of Duty, Collective Responsibility, and The Expectations of Morality. A fifth book, Complicity in Wrongdoing, is in progress. He has contributed articles to five reference books, including The Oxford Companion to Philosophy. His articles

have appeared in over 20 different peer reviewed journals, including American Philosophical Quarterly, Canadian Journal of Philosophy, Philosophical Studies, Australasian Journal of Philosophy, Philosophia, and Analysis.

Communication Ethics M C Brannigan, The College of Saint Rose, Albany, NY, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Dialogic turn In response to postmodern claims of disparate narratives, this idea favorably asserts the possibility of dialogue. Discourse analysis Disciplined analysis and interpretation of discourse as ‘text,’ the process of which may detect meaningful or hidden patterns behind the text. Epoche Term used in phenomenology, originating with Edmund Husserl (1859–1938), to describe a putting aside or ‘bracketing’ of subjectivity and bias to more suitably engage in another perspective or viewpoint. Human rights Rights attributed to all humans on the basis of being human and sharing that same humanity with all other humans.

What Is Communication Ethics? Communication infuses human existence and interaction. Whether we interact within inner circles of intimacy and friendship or through day-to-day encounters, social exchanges, business transactions, political engagement, health care scenarios, multiple print, visual and audio media, email, texting, or other information technologies, our communicative exchanges underscore who we are as humans, what we value, and how we value others. For this reason, communication, in all its facets, from oral to nonverbal, intrinsically involves moral dimensions. Communication ethics addresses these dimensions. Communication is naturally other-oriented, and therefore both individual and collective. Interests and values that are not only personal but also embedded in social and cultural contexts shape what, how, and why we communicate. These interests and values are evident in the ingredients of the communicative exchange. First, the sender has an intent or motive behind the message and makes a deliberate choice that reflects interests and values. Ethical analysis particularly attends to this intentional, reflective, and deliberative quality of communicating. Second, the message itself does not exist in a vacuum but emerges from multiple contexts. Third, the way in which this message is conveyed is vital and will certainly affect how it is perceived, understood, and interpreted, all of which often vary in multiple and conflicting ways. Fourth, there is the intended audience, or receiver(s),

Phroneˆsis Greek, meaning ‘practical wisdom,’ the term used by Aristotle to refer to the ideal of prudently using reasoned deliberation in assessing and responding to each situation as unique. Rhetoric Science of persuasion in an attempt to affect another through appealing to intellect and emotion. Standpoint theory The idea that all perspectives and beliefs are contextual in that they are socially and culturally constructed. Technological imperative Prevailing social ethos that assumes that access to and availability of technologies necessitates their application. Veracity Condition of truth-telling, an indicator of integrity.

along with other, unintended audiences, who are affected by the exchange either by viewing the interaction or by learning about it through other sources. Ethical analysis does not focus solely on the communicator but also on obligations of those to whom the message is communicated. Both senders and receivers have shared responsibilities. Recipients have a moral responsibility to reasonably weigh the message and to respectfully respond when appropriate. In any case, on account of the ripple effects of continuing communicative exchanges, for example through information technologies and media, the circle of communication expands. Consequences are themselves contingent upon factors such as environment, culture, age, gender, and, particularly in this era of increasing digital communication, degrees of actual interpersonal (that is, unmediated and person-to-person) interaction. Values resonate throughout all this so that ethics is integral to communication. This ethical dimension is compounded because com­ munication assumes various forms, including nonverbal communication. Visual communication, body language, selective use of images, and silence therefore play a sig­ nificant role in communication ethics. We see this particularly in advertising, marketing, and in mass media such as documentaries. For further discussion on the topic, please see the section titled ‘Information technologies.’ In any case, throughout this dynamic among sender, message, style, audience, and consequences,

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communication assumes various standpoints so that communication is not neutral. It is naturally embedded in the plural interests of sender, receiver, and all those affected. Communication ethics therefore addresses the communicative engagement not only among individual agents but also among various contexts and interests of these agents.

Scope Again, communication is both individual and collective. In contrast to the more dramatic issues in ethics (for example, embryonic stem cell research, physician-assisted suicide, business scandals, and government corruption), communi­ cation ethics generally addresses day-to-day, routine exchanges, the scope of which ranges from interpersonal to more public levels. Conventional ethical analyses less often scrutinize routine interpersonal communicative behavior. Nonetheless, issues concerning, for example, everyday conversation, truth-telling, confidentiality, and engaging in gossip all deserve close examination. All this relates to how individuals communicate with others, parti­ cularly in view of perceived differences and commonalities. Herein lies the fundamental question: How do we commu­ nicate with each other across differences in ways that cultivate reasoned discourse and mutual respect? In com­ municating with each other we make choices that reflect our understanding of what is good, what is valued. As long we communicate, views of what is ‘good’ are ever present. As Aristotle (384–322 BCE) asserts, we are also natu­ rally political beings in that we inhabit a polis, or citystate, which necessitates engagement not only with one another but also with larger collectives. On these levels, our interaction requires degrees of deliberation that it is hoped strive for what Aristotle calls phroneˆsis, or practical wisdom. In view of our fundamental political nature, the way in which we interact with others assumes moral significance. The scope of communication ethics widens from the interpersonal to collective levels ranging from small groups to larger institutions and organizations. Communication ethics is therefore an important voice in organizational ethics. Organizational ethics is an inclusive arena that addresses not only institutional misconduct but also moral parameters regarding communication within and between organizations. Organizations are cultures that comprise various sub­ cultures. Organizational integrity depends on the integrity of both members who comprise the organization and the organizational infrastructure with its hierarchy, rules, guidelines, and customs. Communication ethics encourages reflection, reasoned discourse, stakeholder engagement, leadership exemplars, and responsible interaction, in contrast to groupthink, micromanagement,

manipulation, intimidation, and abuse of power that help to sink workplace morale and corrode the organization’s moral cohesiveness. Workplace incivility has recently gleaned more public attention, and more websites are devoted to an examina­ tion of workplace civility and the need for both rules of etiquette and ethics. Essentially, workplace civility is a matter of professionalism so that communication ethics addresses the nature of the relationship between being a professional and cultivating moral character. Communication ethics also deals with ways to address moral transgression within the organization. Does the organization have an ethics mechanism? If so, how influ­ ential is it? Does management from top down encourage and, more important, embody ethical behavior? Does the compliance office work together with the ethics mechan­ ism? What institutional support is there for ‘whistle­ blowers’ who report on abuses and misconduct? Does the organization provide forums to cultivate workplace trust, integrity, and loyalty? Is there sufficient training for ethical communication? Major Themes Of the numerous themes in communication ethics, three remain prominent and ongoing: the quest for veracity, the tension between freedom and responsibility, and the rela­ tionship between ends and means. Communicating the truth

Perhaps the most significant theme throughout commu­ nication ethics is that of veracity or truth-telling. Communicating ethically requires integrity in disclosure. Deception, however, is common fare. For many, decep­ tion and truth-telling are also often situational and culturally contingent. Are we always obligated to tell the truth? What does truth-telling mean in certain cir­ cumstances? Is lying ever justifiable? Is it justifiable to be deliberatively vague or ambiguous? Freedom and responsibility

Communication ethics habitually addresses the tension between rights and obligations, freedom and responsibil­ ity. An example of this is media. While we remain inundated by mediated images and texts, these mediated images give us a sense of what is happening in the world. Yet, the power of media is such that we can easily identify the mediated image with reality. Moreover, media, espe­ cially forms of mass media, is enormously powerful in shaping values, priorities, what matters, and the way we think about what supposedly matters. Communication ethics examines conditions for the responsible exercise of freedom, increasingly difficult in these times when unfettered expressions of freedom are not often accompanied by a strong sense of

Communication Ethics

responsibility. For communicators in media, govern­ ment, public relations, and elsewhere, ethically responsible communication requires exercising good judgment. In turn, this entails careful reflection regard­ ing the consequences of the communicative process and assessing these in light of ethical principles, balancing the right to know and the freedom to express with the duty to benefit others and minimize harm. Ends and means

The relationship between ends and means is especially pertinent in communication ethics. For example, in adver­ tising, marketing, and public relations, can we claim that a good end (that is, aim or goal) justifies questionable means to achieve that end? Communication ethics especially stresses that although they are distinct items, ends and means cannot be compartmentalized. That is, means used to achieve an end affect the nature and quality of that end. The news media’s end to sufficiently inform the public is qualified by limits placed upon the methods used. To illustrate, is it morally justified to broadcast 9-1-1 calls even when they violate personal and family privacy? As in all areas of applied and philosophical ethics, communication ethics examines the moral legitimacy of the means, whether the ends sought are in effect good or questionable, and whether other more morally appropriate means can be used to achieve the same ends. Applying the principle of proportionality, the noble end must clearly outweigh consequences of utilizing questionable means. What would be the long-term effects with respect to public opinion, for instance in news coverage of personal tragedies? Would the coverage help to cultivate public trust in, for example, news media and journalism?

A Brief History Communication ethics has historic roots in rhetoric and argumentation analysis. The aims in rhetoric as it was traditionally conceived lay the groundwork for what later developed as communication ethics. As developed by Aristotle, rhetoric essentially involves a communicative style that seeks to affect another’s judgment and choice. Rhetoric aims to persuade, to bring about a cognitive and affective impact on the listener in order to influence the listener’s perception, understanding, feelings, and eventually evaluation regarding some specific issue. At the same time, rhetoric recognizes the contingent in that human beings and thereby human communication is naturally situated in specific contexts. For a long time, communication ethics was confined to the domains of argumentation and persuasion, and this lasted well into the 1950s and 1960s. The first textbook in communication ethics, Tom Nilsen’s Ethics in Speech

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Communication, published in the 1950s, in effect signaled communication ethics as a distinct and official field, with roots in rhetoric, extending into a broader array of con­ cerns. The field remains rooted in rhetoric, however, and rhetoric naturally involves matters of ethics. In view of rhetoric’s persuasive nature, ethical inquiry outlines para­ meters of persuasion. What are moral limits to persuasion? Is persuasion per se morally justified? When is it not? Are there moral distinctions between cognitive and emotional appeals in persuasiveness? Communication ethics is thus an outgrowth of emphasis on rhetorical studies and the relationship between rhetoric and ethics. Also, as with ongoing philosophical critiques of the nature of ethics, communication ethics has developed within shifting intellectual frameworks regarding the understanding of human nature, knowledge, and objectivity. Perhaps a brief historical overview may help to clarify these shifts. The classical period (ancient Greek and Roman philosophy and its aftermath) underscored our shared human nature as rational beings. The ‘good’ and ‘truth’ were viewed as objective entities discoverable through properly cultivating rationality. This rational pursuit and faith in reason continued through the mod­ ernist period, particularly inspired by Rene´ Descartes (1596–1650) and John Locke (1632–1704) and sustained by Immanuel Kant (1724–1804). Recent postmodern thought, from the mid-twentieth century on and described in Jean-Franc¸oise Lyotard’s (1924–98) The Postmodern Condition in 1979, turns all of this around and questions metaphysical and ontological premises as well as prevailing epistemologies. Much of current communication ethics responds to postmodernism. The postmodern challenge is primarily epistemological: On what grounds can we even know enough to make socalled objective claims? Postmodern thought emphasizes the interrelation between power, privilege, and knowledge, and power is not confined to what is overt. As philosopher Michel Foucault (1926–84) asserts, power can be centra­ lized, for example, in the form of laws and institutional rules, and power can be decentralized, implicit within social norms and custom. These more covert, subtle man­ ifestations of power can shape our day-to-day interactions with each other. Power relations therefore unabashedly influence communication, and communication studies now emphasize the significance of contexts, many of which, such as gender and culture, often appear to be at odds with each other. In the face of this postmodern challenge, communica­ tion ethics undergoes an ongoing, rigorous reassessment of its aims and methods. An example is the area known as ‘communicative ethics’ which explores the principles and methods underlying communication ethics. Its most pro­ minent spokespersons are Ju¨rgen Habermas (1929–) and Karl-Otto Apel (1922–). Habermas, for instance, puts forth conditions termed ‘validity conditions’ for the ideal

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communicative community, in which rationality, integ­ rity, and consistency are key ingredients. This is part of Habermas’s theory of ‘communicative competence,’ aimed at improving our usual habits of conversation in order to achieve the ‘ideal speech situation.’ This ideal requires that participants freely, openly, and equitably interact in the face of contextual variation. The commu­ nicative exchange needs to be thoughtful, reasoned, and thorough, with honest examination of major views and positions. The exchange must also encourage the free expression of feelings and intentions. The exchange is thereby, for participants, a safe space for open and honest disclosure without threat of retribution. Moreover, the communicative exchange empowers participants to be more prescriptive in statements and offer viewpoints that carry normative weight. In asserting these values for communication, communicative ethics seeks to cultivate, through communicative competence, reasoned consensus regarding ethical principles and moral values. For further discussion on this topic, see the section titled ‘Postmodernism.’ Numerous philosophers have influenced communica­ tion ethics and its development and direction. Beyond classical sources such as Aristotle (On Rhetoric and Nicomachean Ethics), major thinkers include John Dewey (1859–1952), Martin Buber (1878–1965), Hans-Georg Gadamer (1900–2002), psychologist Carl Rogers (1902–87), Sidney Hook (1902–89), Emmanuel Levinas (1906–95), John Rawls (1921–2002), Karl-Otto Apel, Michel Foucault, Ju¨rgen Habermas, Alasdair MacIntyre (1929–), Sissela Bok (1934–), Martha Nussbaum (1947–), and Seyla Benhabib (1950–).

Categories of Communication Ethics Communication scholars have outlined prominent cate­ gories within communication ethics. In 1969, James Chesebro posited four major categories (democratic, procedural and codes, universal humanitarian, and contextual). Ronald C. Arnett added narrative as a fifth in 1987. In 2006, Arnett, Pat Arneson, and Leeanne M. Bell delineated a sixth category, ‘dialogic,’ in response to postmodern challenges regarding a mul­ tiplicity of perspectives, values, and narratives. These categories reflect the prevailing view that communica­ tion ethics is not one single entity or ideology. Given the dynamic quality and scope of communication as an intrinsically human component, ethical issues in communication cover a wide range throughout these categories. Applying the more recent typology of Arnett, Arneson, and Bell, the following is an overview of the six categories.

Communication Ethics as Democratic Given its historic and conceptual roots in classical Greek notions of rhetoric within the context of a budding democracy, this category is clearly foundational. In seek­ ing to cultivate an ethical process of public deliberation, specifically within the context of democracy, it addresses some fundamental questions. How can we encourage morally sound public communication while respecting free speech? How do we cultivate informed choice and reflective deliberation? This is especially critical because informed choice provides a basis for a participatory democracy. Without informed choice on the part of all stakeholders – choice that is knowledgeable, voluntary (free from coercion), and competent – there can be no participatory democracy. More questions include the following: How can we respectfully encourage diverse viewpoints within parameters of reasoned argumentation and debate? In view of our differences, how do we encourage ethical dialogue that balances individual freedoms and responsibilities and still promote the common good? A participatory democracy demands sufficient and honest disclosure of relevant information, reasoned dis­ cussion and debate, and respectful public discourse. Violations of this are often evident, for example, in poli­ tical campaigning. Communication ethics promotes morally sound public discourse in all of its manifestations. In the context of freedom of expression and openness to diverse viewpoints, this requires transparency, public engagement, and participation in decision making, all in an earnest effort to pursue what is ‘good.’ All this occurs against a moral backdrop that prioritizes the well-being of the community over individual and small group interests. Clearly, this ideal of public discourse sets a high bar, an ideal that asserts fundamental values in communication ethics: respect for diversity, openness, tolerance, respon­ sible behavior, reasoned discourse, sincerity, and civility. Along these lines, the value of civility is receiving more attention. Civility requires three critical ingredients: restraint, respect, and responsibility. As a necessary con­ dition in ethical communication, civility is also indispensable for a participatory democracy.

Communication Ethics as Universal and Humanitarian This category in communication ethics explores the pos­ sibility of universal moral norms that drive principles and rules regarding how we communicate with each other locally, regionally, nationally, and globally. Here, the search for universal standards of morality is strikingly germane. Universal a priori principles can act as guide­ posts for communicative behavior. Also, many scholars in ethics claim that universal principles are inherent in our

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humanness, and thus so-called human rights reflect these universal principles. Human rights are not contingent upon citizenship, religion, ethnicity, gender, age, or other variables. One of the major challenges in commu­ nication ethics lies in whether or not and to what degree we can reasonably assert universal standards of morality for communicative engagement, particularly as to what constitutes the ‘good,’ the ‘right,’ and the ‘just.’ Most communication ethics scholars agree that in this quest for universal principles, there is no one template regarding communication ethics. Even in ‘declarations’ of universal human rights, for instance, the consensus expressed by the United Nations Declaration of Human Rights can be challenged by indigenous populations not engaged in discussion and not included in authorship. Positing human rights ultimately has to do with acknowl­ edging and respecting our common ground in humanity. Yet, even on this basis, how do we establish certain universal moral principles and standards when ‘respect’ can be interpreted differently by different peoples? Although it makes good sense to hope for morally sound first principles, how do we arrive at these, if they do exist? This relates directly to issues of intercultural and intracultural communication. For our purposes, inter­ cultural, or cross-cultural, communication designates communication across geographic, national, ethnic, and religious lines, for example, Asian, Japanese, or Buddhist cultures. Intracultural, or multicultural, is a term used to refer to ethnic and religious cultural traditions within the same population. Communication ethics seeks to examine whether there are universal norms that can act as standards for communication both interculturally and intraculturally. The kinship here with philosophical ethics in its perennial search for universal moral standards and premises that justify these standards is evident. So also, given the global scope of communication, communication scholars inquire as to whether there are sufficient grounds for a communication ethic that transcends cultural lines. An example in bioethics concerns whether there are sufficient communicative grounds to assert that the moral principle of autonomy, or self-determination, is universally acknowledged in similar ways to support rules regarding informed consent to medical procedures. Another example is protection against human rights abuses. International groups such as Human Rights Watch presume universal norms regarding rights attributed to all humans by virtue of being human, regardless of nationality, ethnicity, religion, etc. If so, then this posits grounds for an ethics of communicative behavior that is also universal. Inquiry into a global communication ethics naturally involves an examination of the notion of ‘moral commu­ nity.’ What constitutes a moral community? A moral community is a collective of moral persons, or moral

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agents, who have moral status by virtue of their being viewed as ‘persons.’ Drawing lines between those within the moral community and those outside adversely affects attitudes and behavior toward those considered to be outside of the moral circle. Numerous instances of genocide, for example, the ruling Hutus’ massacre of Tutsis in Rwanda in 1994, occur on the perilous grounds of line-drawing regarding ‘moral communities.’ Communication Ethics in Formal Codes and Guidelines Ethics codes reflect an organization’s values and priori­ ties. For instance, ethics codes elaborate on values implicit in an organization’s mission statement. An orga­ nization’s policies, guidelines, and protocol also reflect an organization’s ethics. Codes and guidelines offer institu­ tional traction in providing guidance when institutional members, or the institution itself, confront ethical quand­ aries. To illustrate, a hospital’s guidelines for withdrawing and withholding life support provide direction for hospi­ tal and medical staff to act in ways congruent with the hospital’s values. Moreover, they help to avoid subjective, ad hoc, and discretionary decision making. An institu­ tion’s codes are thereby specific to the institution. A Catholic hospital’s policy on abortion naturally reflects that hospital’s mission statement and values and may therefore be distinct from a secular hospital’s policy. Are ethics codes helpful or harmful? Scholars in communication ethics stress that codes in themselves are generally inadequate in addressing complex ethical issues generated by the tension between individual and institu­ tional values. Codes are helpful, but they are not enough. Although they provide a minimal understanding of ethics, they may wrongly reduce ethics to legality, may be institutionally self-serving, and may even be duplicitous in conveying the impression of an ethical organization. Typical problems with formal ethics codes include the following: • A tendency to be vaguely formulated. • The risk that they may be construed as the panacea to ethical conflict. • Questions concerning degrees of enforceability. • The danger that members may view ethics as a matter of compliance and legality. • The possibility that codes reinforce an institution’s existing power structures so that codes are in effect merely window dressing, conveying a false impression of moral consciousness. Formal codes, however, do offer institutional traction and can help to provide guidance for individual institutional members who may or may not have their own personal codes of ethical communicative behavior and who face situations of moral conflict. By setting limits on accepting

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gifts from clients, a corporation’s code of ethics can be rather helpful. Communication ethics plays a crucial role in reinforcing the need for ongoing review and assessment of codes and procedures. Moreover, codes are only good if they are shared and disseminated among an institution’s members, as well as the community affected by these codes. A hospital therefore has a moral duty to educate the community it serves regarding its codes, in order to inform, enlighten, and engage public voices. Without a commitment to communicative engagement, codes can derail any likelihood for trust. Codes offer institutional traction, but they also need to be designed and commu­ nicated in ways that cultivate trust. Quite a few organizations directly related to commu­ nication have formal codes of ethics. These include the codes of ethics of the International Association of Business Communicators (1995), a member code of ethics for the Public Relations Society of America (2000), codes of ethics for the American Society of Newspaper Editors, an ethics code for the Society of Professional Journalists, and a code of ethics for the American Association of Advertising Agencies (1990). The National Communication Society is the foremost organization of communication scholars and specialists with more than 7000 members. Its 1999 ‘Credo for Communication Ethics’ conveys principles and ideals to strive for in communication ethics. Communication Ethics as Contextual Communication is always context dependent and occurs within particular situations so that the communicative process is oriented by, for, and toward particulars. Communication ethics therefore recognizes that interac­ tion is naturally situated and influenced by factors that influence and form the conversation. These factors are cultural, social, political, religious, historic, and economic. This is the main idea behind so-called ‘standpoint theory’ in communication, developed by both Sandra Harding and Julia T. Wood, that viewpoints are socially and culturally constructed. This contextual quality of communication is especially illustrated through gender differences in communicating and accompanying power relations that are gender based. That is, communicating can be a way to assert power. Here, feminist theory significantly contributes to communication ethics. There is no universally embraced theory of feminism, and various emphases give way to different schools such as classical feminism (Simone De Beauvoir, 1908–86), difference feminism (Carol Gilligan, 1936–), equity fem­ inism (Christina Hoff Sommers, 1950–), and radical feminism (Andrea Dworkin, 1946–2005). What feminists have in common is their opposition to a white, malegenerated view of ethics as revolving principally around abstract theories divorced from wider relational, social, cultural, institutional, and gender contexts. For instance,

Nel Noddings rejects applying moral rules and principles as a starting point to moral reasoning. Also, feminists such as Carol Gilligan acknowledge the critical role of emotions as a much needed, though sadly neglected, component in moral reasoning. Communication Ethics as Narrative Human experience consists of a constant unfolding of narratives or stories. Our lives are coherent narratives, with multiple subjects, plots, and subplots, and our narratives reveal ongoing insights. These insights can act as guides for communicative behavior. There is no permanent static agency within these stories but, rather, an interactive dynamic that responds to varying circum­ stances. In this context, communication ethics shifts the emphasis from communication as strictly content based to narration as a source of unfolding revelation. In addition, postmodern thought introduces the notion that our narratives are often in conflict with each other – in which case, communication ethics seeks to address the reality of contending narratives. To illustrate, communication ethics as narrative has been applied to health care. Communication is integral in the clinical setting, from the initial medical interview to diagnosing and explaining prognosis, is inherent through­ out the caregiving process, and in delivering troubling news to patients and families. Physicians are not only experts in various medical areas but also communicators with their patients. How health care professionals communicate is profoundly important and directly impacts patients and their families. However, often communication is insufficient and/or poorly handled, and communication scholar Srikant Sarangi calls for cultivating a ‘communicative mentality’ in health care. This entails recognizing limits to the traditional biomedical model of illness, the language and exercise of which decontextualizes patients from their illness. Communication as narrative, on the other hand, reconceives illness as constructed, integrated, and experienced through the patient’s various contexts – familial, social, and cultural. Medical anthropologist Arthur Kleinman’s classic Illness as Narrative points to the crucial value of narrative as the patient’s story, the telling and retelling of which helps to explain and give meaning to the patient’s experience of illness. This contrasts with viewing illness strictly in empirical categories, which, although viewed as ‘scientific,’ divorces the meaning of illness from personal and famil­ ial moorings. Research institutes such as the Health Communication Research Center at the University of Cardiff pay special attention to the interplay between medicine and communication. Its journal Communication in Medicine is pioneering an effort to apply language and communication disciplines such as discourse analysis and

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sociolinguistics to communicative exchanges in medicine, including narratives. Communication Ethics as Dialogue Dialogue can perhaps best be understood by contrasting it with monologue. Monologue stifles communication because the ‘conversation’ is fundamentally one-way. This precludes the possibility of genuine interaction and learning from the encounter. Monologue short-circuits engagement. Martin Buber’s notion of ‘‘I–Thou’’ versus ‘‘I–It’’ relationships is instructive. Buber centers his philosophy of encounter around the need to develop an I–Thou relationship with the Other rather than one of I–It, which is strictly monologic. I–It views the Other as an object, and interaction with the Other is manipulative. The Other is viewed as a thing, a means to my own end. Communication cannot occur and I cannot grow as a person in this self-centered way. As self-absorbing, the I–It relation tends to be manipulative, deceptive, artifi­ cial, opportunistic, and exploitative. Self-absorption leads to inauthenticity, or bad faith, and is evident when my encounter with the Other only concerns me in terms of how I think the Other thinks of me. Authenticity and personal growth can only occur through dialogue. Psychologist Carl Rogers, whose client-centered therapy has influenced communication scholars, highlights dialogue as an avenue to personal growth. Rogers’ ‘empathetic understanding’ enables an individual, in this case a therapist, to enter into the viewpoint or frame of reference of the other, the client. This requires a ‘bracketing,’ or setting aside in order to not interfere (somewhat like the phenomenological epoche of Husserl) of one’s own subjectivity. In like manner, Buber’s I–Thou encounter is a being toward the Other in a way that enters into the perspective of the Other. This is full awareness and genuine recognition of the Other as a subject, not an object or a means. All this requires sincerity, or authenticity, an effort to transcend our own viewpoint and enter that of the Other, being genuinely present to, for, and with the Other, and engaging the Other in a context of respect. Philosopher Emmanuel Levinas is a major influential voice in communication ethics. His philosophy of engagement – that is, of authentic and open engagement with the Other – supports communication as dialogue. In fact, Levinas maintains that we have a moral duty to remain open and responsive to the call or message, overt and implicit, from the Other. We are especially obligated to be open and responsive when the Other is disenfran­ chised from society and suffers from inequities via marginalization. Dialogue requires reciprocal engagement, a mutual openness to other perspectives while acknowledging that contexts, or standpoints, prior to conversation, also

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play an essential role in the conversation itself. Not only is there openness to difference also but a willingness to learn from difference and modify one’s point of view, belief, or value. There is also the recognition that the conversation occurs between individuals who are shaped by multiple contexts. Moreover, the exchange does not stop at the end of the conversation. Insights emerge from engagement, and learning is a never-ending process. In this way, the so-called ‘dialogic turn’ in communication ethics is a response to the postmodern claim of disparate and often conflicting narratives. For further discussion on the topic, see the section titled ‘Postmodernism.’ In the face of difference and contention, the dialogic turn advocates a willingness to engage one another precisely because of differences. The key lies in a fundamental attitude of openness and a disposition to learn from such engagement, about ourselves and about others.

Current Challenges Information Technologies Access to information via new communication informa­ tion technologies presents striking challenges in communication ethics. There is certainly promise in the democratization of information and global access. However, there are also perils, for example, when televi­ sion media channels become overwhelmingly controlled by transnational corporations. When only a few powerful sources control and shape information and news media, this heightens the potential for manipulation of both information and the public, adding force to Michel Foucault’s ongoing critique of knowledge authority in terms of the tension between power and knowledge. Another issue lies in the fact that there remains what is called a ‘digital divide’ with respect to communication information technologies. Despite the impression that information communication technologies are global, mil­ lions are without access to a computer, the Internet, email, and other technologies. This puts them at a decided disadvantage in being sufficiently informed, for instance, regarding the benefits and risks of certain medical treat­ ments and procedures. Communication ethics addresses this issue of distributive justice and equity. Furthermore, overreliance on technologies harms the communicative process and precludes any possibility for dialogue. For instance, our medical system is increasingly driven by what is termed the ‘technological imperative’ (Jacques Ellul), the belief that the presence of existing technologies in itself warrants their application. However, as is evident in health care, maximal use of technology is not equivalent to optimal use. A perverse shift occurs when technological intervention in effect replaces interpersonal intervention, communication, and human-to-human interaction.

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Internet use, with its ubiquitous menu of listservs, websites, emails, blogs, and chat rooms, creates a host of ethical issues. For example, Internet users often assume anonymous agency. Anonymity, on the part of sender and recipient, can encourage communicative transactions that are not only impersonal but also dehumanizing, as in the plethora of hate sites, pornography, and blogging that is racist and obscene. Anonymity can generate unwanted intrusions into personal privacy. Anonymity can also spawn deception, plagiarism, and manipulation of infor­ mation and images. As another example, Internet use in the workplace blurs lines between personal and official while employers feel justified in monitoring employees’ email and Internet use. Is this morally legitimate? Communication ethics raises questions regarding blog­ ging ethics, email ethics, and the like. Truth-telling is another issue in new technologies. Whereas issues of veracity and truth-telling generally relate to verbal communicative exchanges, there is increasing attention to matters of integrity with respect to nonverbal communication through visual images. Novel techniques of manipulating digital images generate questions surrounding deception. We can modify and manipulate photographic images in ways that convey messages that are far from what is real or what is true. For instance, though documentaries may convey the idea of realism and objectivity, they also have a hidden agenda. Communication scholars are especially interested in ethi­ cal uses and misuses behind image manipulation. Is there is clear-cut distinction between ethical and unethical construction of images? Postmodernism Postmodern thinkers embrace varied and sometimes con­ flicting premises and perspectives. There is no single, universal theory regarding postmodernism. Nonetheless, there are common elements that present special chal­ lenges in communication ethics. Common postmodern assertions include the following: • Reality is contextual. • Truth is neither universal nor absolute. • There are no autonomous moral agents; identity is not fixed but embedded in relational history. • Emotion assumes a significant role in moral reasoning. • Awareness of differences is a critical dispositional factor in perspective and understanding. • There is no unifying or consistent narrative. These sorts of challenge are not unusual. In Hegelian fashion, the history of intellectual thought has always swung in a dialectic of resistance to conventional teach­ ings. Philosophers in particular unseat former mentors, as Aristotle challenges Plato, realists oppose idealists, and Enlightenment thinkers resist Medievalists. Along these

lines, scholars in communication ethics point to a twofold danger in postmodern thought: the potential for nihilism, or meaninglessness, and a radical moral relativism. Because postmodernism challenges the notion of a unified self who deliberates, chooses, and communicates, are we left without an anchor? Given these challenges, can communication ethics assume a special role? How can communication ethics respond? Seyla Benhabib responds by grounding Habermas’ communicative ethics through calling attention to the interactive effects of competing visions from feminist theories and postmodernism. She and others share an optimistic view that dialogue is possible, yet only through embracing the uniqueness of diverse contexts, gender differences, and accompanying narratives. Ronald Arnett responds by emphasizing a dialogic turn that views openness and learning as ongoing processes, in contrast to knowing or accumulating information as static. Learning is thus inherently dialectical, in constant process and dynamic. Dialogue takes place between various grounds of biases and interests, with these grounds pre­ ceding the actual conversation. Dialogue, in this sense, occurs prior to the discourse, a discourse between embedded agents. Throughout this dynamic, deliberation regarding what matters, based on notions of what is ‘good,’ further compels the possibility for dialogue. In conclusion, these key challenges in communication ethics remain perspectival and epistemic. Ultimately, communication ethics in turn challenges us to enter into others’ perspectives, particularly those worldviews, beliefs, and values that are seemingly different. In view of communication’s context dependency, communication ethics enables us to develop intellectual and holistic habits of thinking in multidimensional ways that acknowledge, are sensitive to, and seek to understand various and often conflicting viewpoints. In this way, communication always presupposes views regarding what is ‘good,’ what is valued, and what matters. See also: Corporations, Ethics in; Feminist Ethics; Human Rights; Technology, Ethics of: Overview; Workplace Ethics: Issues for Human Service Professionals in the New Millennium.

Further Reading Aristotle (2006) On Rhetoric: A Theory of Civic Discourse (GA Kennedy, trans.), 2nd edn. New York: Oxford University Press. Arneson P (ed.) (2007) Exploring Communication Ethics: Interviews with Influential Scholars in the Field. New York: Peter Lang. Arnett RC, Arneson P, and Bell LM (2006) Communication ethics: The dialogic turn. Review of Communication 6: 62–92. Benhabib S and Dallmayr F (eds.) (1990) The Communicative Ethics Controversy. Cambridge: MIT Press. Buber M (1958) I and Thou (RG Smith, trans.). New York: Charles Scribner’s Sons.

Communication Ethics Christians C and Traber M (eds.) (1997) Communication Ethics and Universal Values. Thousand Oaks, CA: Sage. Habermas J (1990). Moral Consciousness and Communication Action (C Lenhardt and SW Nicholsen, trans.). Cambridge: MIT Press. Harding SG (ed.) (2004) The Feminist Standpoint Theory Reader: Intellectual and Political Controversies. New York: Routledge. Jaksa JA and Pritchard MS (eds.) (1996) Responsible Communication: Ethical Issues in Business, Industry, and the Professions. Cresskill, NJ: Hampton. Johannesen RL, Valde KS, and Whedbee KE (2008) Ethics in Human Communication, 6th edn. Long Grove, IL: Waveland Press. Levinas E (1985) Ethics and Infinity: Conversations with Phillipe Nemo (RA Cohen, trans.). Pittsburgh, PA: Duquesne University Press. Lyotard JF (1984) The Postmodern Condition: A Report on Knowledge (G Bennington, trans.). Minneapolis: University of Minnesota Press. Makau JM and Arnett RC (eds.) (1997) Communication Ethics in an Age of Diversity. Urbana: University of Illinois Press. Sarangi S (2004) Towards a communicative mentality in medical and healthcare practice. Communication & Medicine 1: 1–11. Wood JT (1998) Ethics, justice, and the ‘private sphere.’ Women’s Studies in Communication 21: 127–149.

Relevant Websites http://ethics.iit.edu/codes/coe/amer.assoc.ad.agenc-b.html – American Association of Advertising Agencies, standards of practice (1990). http://www.businesscommunication.org/about/ Code_of_Ethics.html – Association for Business Communication, professional ethics—code of conduct. http://www.indiana.edu/~appe – Association for Practical and Professional Ethics. http://www.cardiff.ac.uk/encap/research/hcrc – Health Communication Research Center Cardiff. http://www.iupui.edu/~icic/home.html – Indiana Center for Intercultural Communication. http://www.instituteforcivility.org – Institute for Civility in Government. http://www.intercultural.org – Intercultural Communication Institute. http://www.iabc.com/about/code.htm – International Association of Business Communicators, codes of ethics.

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http://www.extension.iastate.edu/mt/civility – Iowa State University forum on civility in the workplace. http://www.immi.se/intercultural – Journal of Intercultural Communication. http://www.communication.illinoisstate.edu//pdf/Com110/ ethics.pdf – National Communication Society, credo for communication ethics. http://www.prsa.org/AboutPRSA/Ethics – Public Relations Society of America, member code of ethics (2000). http://www.spj.org/ethicscode.asp – Society of Professional Journalists, ethics code.

Biographical Sketch Michael C. Brannigan (Ph.D., Philosophy, M.A., Religious Studies, University of Leuven, Belgium) is the George and Jane Pfaff Endowed Chair in Ethics and Moral Values at The College of Saint Rose in Albany, New York. Holder of the first endowed chair in the college’s history, he is also on the faculty at Albany Medical College’s Alden March Bioethics Institute. Prior positions included Vice President for Clinical and Organizational Ethics at the Center for Practical Bioethics, Kansas City, Missouri, and founder and director of the Institute for Cross-Cultural Ethics at La Roche College, Pittsburgh, Pennsylvania. His specialties lie in ethics, intercul­ tural ethics, medical ethics, Asian philosophy, and intercultural communication. Along with numerous articles, his books include Ethics across Cultures; Cross-Cultural Biotechnology (editor); Healthcare Ethics in a Diverse Society (co-author); Ethical Issues in Human Cloning (editor); and The Pulse of Wisdom: The Philosophies of India, China, and Japan. His revised edition of Striking a Balance: A Primer in Traditional Asian Values was recently published in 2010. He chairs the Association for Practical and Professional Ethics Diversity Committee and serves on the editorial boards of Health Care Analysis: An International Journal of Health Care Philosophy and Policy and Communication and Medicine.

Communitarianism A Etzioni, The George Washington University, Washington, DC, USA

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by J. Donald Moon, volume 1, pp 551–561, ª 1998, Elsevier Inc.

Glossary Communitarianism A social philosophy that builds on the assumption that the good should be socially defined. Moral dialogues Social processes through which communities form new shared moral understandings.

Communitarianism is a social philosophy that builds on the assumption that the good should be socially defined. This core assumption is often contrasted with the core assumption of liberalism, which holds that each person is to determine the good individually. Communitarians tend to stress the importance of the common good, communal relations, shared core values, and the individual’s respon­ sibility to the greater whole. This is in contrast to focusing on maximizing the utility of each person, the autonomy of the self, and individual rights. Furthermore, communitar­ ians hold that the very concept of the individual as a freestanding agent is suspect because individuals are inte­ grated into various social groupings; things that appear to be their personal choices and preferences are in part reflections of their culture. Although communitarianism is a small philosophical school, it has had considerable influence on public dialogues and politics. There are considerable simila­ rities between communitarian thinking and the Third Way, the political thinking of New Democrats in the United States, and the Neue Mitte in Germany. Communitarianism played a key role in Tony Blair’s remaking of the British socialist Labour Party in what has been called the New Labour and a smaller role in President Bill Clinton’s campaigns. President Barack Obama gave voice to communitarian ideas and ideals in his book The Audacity of Hope, and during and since the 2008 presidential election campaign has repeatedly called upon his fellow citizens to ‘‘ground our politics in the notion of a common good,’’ for an ‘‘age of responsibility,’’ and for foregoing identity politics in favor of community-wide unity building. However, for many in the West the term communitarian conjures up authoritarian and collectivist associations, so many public leaders – and even several academics considered cham­ pions of this school – avoid the term while embracing and advancing its ideas.

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Particularism Theory that each social group or community has a right to promote its own beliefs and interests without regard to the interests of other groups.

Major Varieties of Communitarianism Communitarians, like many members of other schools of thought, differ considerably from one another. This is especially true as communitarianism serves simulta­ neously as a branch of academic philosophy, as a relatively unknown but still significant public philoso­ phy and ideology, and as a source of guidance for public policies and even personal choices.

East Asian Communitarianism East Asian communitarians, who may be referred to as authoritarian communitarians, hold that to maintain social order and harmony, individual rights and political liberties must be curtailed. They hold that individuals find their role and meaning in their service to the com­ mon good and are organic parts of a great whole, just as cells are in a human body. Some East Asian communitarians believe in the strong arm of the state (e.g., former Singaporean Prime Minister Lee Kuan Yew and Malaysian head of state Mahathir Bin Mohammad) and some in strong social bonds and the voice of the family and community (espe­ cially the kind of society Japan had, at least until 1990). Authoritarian communitarians argue that what the Western value of liberty actually amounts to is social, political, and moral anarchy and that legal and political rights are a distinctly Western idea that the West uses to impose its own vision on other cultures, which have their own preferred values. Over the years, East Asian communitarians have moderated many of these claims, have made more room for individual rights, and have been increasingly eclipsed, at least in the West, by responsive communitarians.

Communitarianism

Academic Communitarianism In the 1980s, communitarian thinking was largely asso­ ciated with the works of political philosophers such as Charles Taylor, Michael Sandel, and Michael Walzer. Others sometimes associated with this group include Alasdair MacIntyre, Seyla Benhabib, and Shlomo Avineri. These scholars called attention to the mistaken assump­ tions about the nature of the self that liberal philosophy, especially as espoused by John Rawls, rested upon. Liberalism, these communitarian critics pointed out, views the person as divorced from all his moral commit­ ments and communal attachments. These communitarians challenged this view, depicting the self as fundamentally situated or contextualized in a given culture, within a particular history and a set of values. These academic communitarians, and the sociologists who preceded them, like E´ mile Durkheim and Ferdinand To¨nnies, stressed that individuals in viable communities not only flourish as human beings but also are more reasonable and productive than isolated individuals. Only if social pressures to con­ form rise to excessively high levels do they undermine the development and expression of the self. Academic communitarians also showed that the nature of the political community was misunderstood by liberal­ ism. Where liberal philosophers described a neutral framework of rules within which a diversity of commit­ ments to moral values can coexist, communitarians showed that such a thin conception of political commu­ nity was both empirically misleading and normatively dangerous. Good societies, these authors showed, rested on much more than neutral rules and procedures; they relied on shared moral culture. Some academic communitarians argued even more strongly on behalf of particularistic values, suggesting that, indeed, these were the only kind of values that mattered and that it was a philosophical error to posit any universal moral values. In After Virtue, Alasdair MacIntyre wrote that human rights are as real as unicorns. Michael Walzer initially argued that concrete universal values were philosophically illusory and that societies could be measured only according to their own particu­ laristic moral standards. As the debate over abstract universal values gave way to a discussion about crosscultural justifications of human rights, the problems of such a relativistic position came to be widely (though not universally) acknowledged. In the 1990s, responsive communitarians developed a position that accommodated both particularistic and universal values.

Responsive Communitarianism Early in the 1990s, a new group was founded by Amitai Etzioni, working with William A. Galston, which took the communitarian philosophy from a small academic group,

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introduced it into public life, and recast its academic content. The group, variously referred to as responsive, neo-, or political communitarians, stressed the impor­ tance of society and its institutions above and beyond that of the state and the market, the focuses of other public philosophies. It emphasized the key role played by socialization, moral culture, and informal social con­ trols rather than state coercion or market pressures. Responsive communitarianism served as an antidote to unfettered individualism and as a major correction to authoritarian communitarianism by stressing that strong rights presume strong responsibilities and that one should not be neglected in the name of the other. The group started by forming a platform, whose draf­ ters included Mary Ann Glendon (law); Thomas Spragens, Jr., James Fishkin, and Benjamin Barber (political science); Hans Joas, Phillip Selznick, and Robert Bellah (sociology); Alan Ehrenhalt (author); and Amitai Etzioni. The platform was initially endorsed by more than 150 public leaders from across the political spectrum. The group’s message was soon found in numer­ ous op-eds, at public lectures, and on TV and radio programs in a considerable number of countries. The group also issued several position papers on subjects such as organ donation, character education, and HIV testing. The ideas of the group were further developed, both on the public side and on the academic side, in books and an intellectual quarterly, The Responsive Community. These works stressed that social institutions and public policies should reflect shared values and the common good in addition to aggregation of individual preferences, which themselves are culturally penetrated. In addition to accepting select universal principles, communitarianism emphasizes particularism, the special moral obligations people have to their families, kin, communities, national societies, and the nascent global community. Responsive communitarians stress that society is best viewed not as composed of millions of individuals, but as a community of communities. That is, subcultures and loyalties to various ethnic and regional communities do not undermine the integrity of society as long as a core of shared values and institutions – such as the Constitution and its Bill of Rights, the democratic way of life, and mutual tolerance – are respected. These observations are of special import today for societies that are in the process of coming to terms with mass immigration (e.g., many European societies and Japan) and for those in which minorities are questioning their place in the national whole (e.g., Quebecois, Scots, Basques, Sunnis in Iraq, etc.). Although the communitarian model of a good society is applicable to all societies, at different moments in history a given society is likely to miss the desired balance between rights and the common good, between

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particularistic loyalties and society-wide bonds – in a different direction. Hence, different societies may need to move in different directions in order to approximate the same balance. Thus, contemporary East Asian socie­ ties must move toward much greater tolerance for individualism and pluralism, while in American society, as Robert Bellah and his colleagues have shown in Habits of the Heart: Individualism and Commitment in American Life, excessive individualism ought to be reined in.

Responsive Communitarianism: Elements and Applications Communal Moral Dialogues as Agents of Change How do societies formulate shared conceptions of the good? Many liberals find the answer in reasoned delibera­ tions, emphasizing rational processes that minimize the role played by passions or emotions. In contrast, respon­ sive communitarianism draws on the findings of sociology and behavioral economics, which reveal that rational deliberations are impossible to achieve under most cir­ cumstances. Examinations of actual processes of decision making, especially when they concern normative matters, show that individual preferences and judgments are lar­ gely shaped through interactive communications about values – that is, through moral dialogues that combine passion with normative arguments and rely on nonra­ tional processes of persuasion, education, and leadership. This is not to suggest that in such dialogues information and reason ought to play no role, but merely that they play a much smaller role than is often asserted. This is so both because they are much weaker tools than liberals tend to assume and because a much greater role is played by appealing to values. Moral dialogues often have no clear opening point or closing event. They are prolonged, heated, and seemingly meandering. However, they often lead to new or refor­ mulated shared normative understandings. Even very large societies engage in moral dialogues that lead to changes in their shared definitions of the good. These dialogues take place by linking millions of local conversa­ tions (between couples, in neighborhood bars, in coffee or tea houses, around water coolers) into society-wide net­ works and shared public focal points. They take place during regional and national meetings of many thousands of voluntary associations in which local representatives dialogue: in state, regional, and national party caucuses; in state assemblies and in Congress; and increasingly via electronic links (such as groups that meet on the Internet). Society-wide moral dialogues are often fostered, accel­ erated, and affected by public events such as hearings (e.g., on the torture of terrorists), trials (e.g., the 1925 Scopes trial challenged the normative standing of

evolution), and demonstrations (e.g., those that high­ lighted the case for gay marriages). A brief illustration follows. Until 1970, the protection of the environment was not considered a shared core value in most societies. Then a book, Rachel Carson’s Silent Spring, triggered a society-wide moral dialogue. A massive oil spill and the ensuing protests and the Three Mile Island incident further established the subject on the national normative agenda. Two hundred thousand peo­ ple gathered on the National Mall in 1970 to demonstrate concern for the environment on Earth Day. All of these served as dialogue starters that were followed by billions of hours of dialogue, culminating in a shared sense that both persons and communities had a moral commitment to Mother Earth. The new commitment was strong enough to legitimate various public acts. It moved a conservative president, Richard Nixon, to establish the Environmental Protection Agency and pushed Congress to introduce many policies favorable to the environment, such as recy­ cling and Corporate Average Fuel Economy (CAFE) standards. Similar dialogues led to profound changes in what is considered just treatment of minorities, especially African Americans (dialogues triggered and nurtured by the civil rights movement), relationships between genders (by the women’s rights movement), and many others. Some current dialogues in American society concerning gay marriages and the death penalty have already affected the normative culture and public policies, though they are less advanced than those listed above. Following the opening up of many societies (especially former communist ones), the spread of education, the widening of people’s attention horizon from local toward national and even global public affairs, the rise of world­ wide TV networks (the CNN effect), increased travel and immigration, and the growing popularity of the World Wide Web – all arising over the last few decades – have led to the development of transnational moral dialogues, leading to some albeit limited shared global norms, for instance, regarding the protection of the environment.

A Communitarian Approach to Bioethics The communitarian approach to bioethics is next intro­ duced by focusing on one key example: the treatment of human dignity. Many followers of one kind of liberal thinking or another stress the value of each person and respect for her or his choices and rights and view auton­ omy as a – if not the – major ethical guideline of bioethics. In contrast, social conservatives see human dignity in protecting the human collectivity, Homo sapiens, and sup­ port the state limiting the choices people can make, for instance, ruling out abortion, cloning, and stem cell research.

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Ruth Macklin, a liberal thinker, writes in a British Medical Journal article, ‘‘Dignity is a Useless Concept,’’ that human dignity ‘‘means no more than respect for persons or their autonomy,’’ and that, because ‘‘appeals to [human] dignity are either vague restatements of other, more precise, notions or mere slogans that add nothing to an understanding of the topic,’’ the concept itself is useless and ought to be discarded. Stephen Pinker, in a 2008 article in The New Republic called ‘‘The Stupidity of Dignity,’’ claims that dignity ‘‘amounts to treating people in the way that they wish to be treated,’’ and so therefore ‘‘ultimately it’s just another application of the principle of autonomy.’’ Moreover, Pinker argues that ‘‘. . .even when breaches of dignity lead to an identifiable harm, it’s ulti­ mately autonomy and respect for persons that gives us the grounds for condemning it.’’ In contrast, social conservative champions of human dignity hold that we have moral commitments to nurture a respect for the species, for Homo sapiens, that is not due to animals. It leads them to conclude that human dignity requires that one should not allow for the withdrawal of medical care and life support interventions because, as Adam Schulman articulates the position, ‘‘Hastening the end of one’s life, even by an act of omission, is incompatible with the equal dignity and respect owed to all human life.’’ Similarly, Gilbert Meilaender articulates an understanding of ‘‘human dignity as constraint’’ whereby individual choices must be limited to protect human dignity and that individual suffering may need to be prolonged when doing so helps sustain the respect for important communal norms, especially the value of human life. In contrast to both positions, responsive communitar­ ianism, applied to the issue at hand, takes as its starting point the assumption that both autonomy and human dignity command a primary moral standing. There is no one moral principle that dominates; one must accept a measure of tension among various values that we find compelling. Thus we respect each person’s autonomy, but also recognize that certain acts may undermine respect for the human race, such as public hangings and crossbreeding between humans and animals. Responsive communitarianism suggests that moral dialogues, education, persuasion and informal social con­ trols can reduce the antagonism between autonomy and human dignity. Thus, for instance, the definition of death was changed from the point when the heart and lungs stop functioning to brain death. In the past, stopping active interventions at this point would have been considered an offense to human dignity, but new technology and new information and the communal deliberations that fol­ lowed led us to redefine human dignity, reducing the tension with autonomy. Education, leadership, and persuasion can serve to reduce the said tension because they lead people to voluntarily change their preferences – for instance, to

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agree to express their respect for autonomy in ways that are less conflicting with human dignity, which is prefer­ able to forcing people to act against their preferences; or making adoption easier and expanding education about contraception, thereby reducing the situations in which abortion may be considered and chosen. Still, a measure of tension between autonomy and human dignity is likely to persist. Hence mechanisms and criteria are required to determine which of these two primary moral concepts will take precedent in form­ ing a specific public policy or law. Both the legislature and the courts have a role to play here. One such criterion is the relative weight involved in the specific situation. For instance, if the danger to the community is high, say, if there is a rapidly spreading infectious, fatal disease, autonomy might well be curbed, as Lawrence Gostin notes in his article in Public Heath. This is what courts refer to as ‘‘compelling public interest’’. In contrast, when the restriction of autonomy is high, human dignity may well take a back seat. For instance, we reject the Cuban approach to slow the spread of HIV by incarcerating those who have been infected. Homeland Security and Individual Rights Champions of individual rights seek to protect individual autonomy against claims of homeland security. For instance, they call for treating terrorists like other crim­ inals, according them the full rights of citizens. In contrast, strong champions of security see it as the most important common good and hold that it trumps individual rights. Responsive communitarianism holds that there must be a carefully crafted balance between rights and security and that the point of balance changes as technical and inter­ national conditions change. Upon reviewing new security measures introduced in the United States after 9/11, in the UK after the IRA’s terrorism, and in Spain after the Madrid train bombings, a responsive communitarian finds a more complex picture than the claim that fear mongering had led to wholesale violations of rights (privacy is dead) or that rights advocates block vital security measures (indeed, that even raising such questions is aiding and abetting the enemy). Some new security measures seem fully justified. These often entail a mere adaptation of the law needed due to technical developments. For example, the Foreign Intelligence Surveillance Act (FISA) of 1978 provided guidelines under which a federal agent could obtain authorization to conduct surveillance for foreign intelli­ gence purposes. Prior to 9/11, wiretap warrants were limited to a particular phone. That is, federal officials engaged in court-authorized surveillance still could not follow suspects as they changed the instruments they were using unless they got a new court order for each

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communication device. As more and more people started using a variety of communication instruments including cell phones, Blackberries, and email accounts, this rule became increasingly burdensome. The 2001 USA PATRIOT Act amended the FISA law to allow roving surveillance – making it legal for agents to follow one suspect, once a warrant is granted, whatever instrument he or she uses. This seems to be a very reasonable adapta­ tion of the law, very much in line with the Fourth Amendment requirement that there be no unreasonable search. Other new measures constitute such gross violations of individual rights, aside from the fact that their contribu­ tions to security are rather dubious, that a responsive communitarian would ban them. These include torture and a disregard of habeas corpus – the indefinite detention of people without charging them or bring them to trial – and mass detention on the basis of race, ethnicity, or national origin. Still other new security measures might be allowed if their use is closely monitored and properly circum­ scribed. Thus as the government’s surveillance powers were increased, a new court was formed to rule whether these powers were properly applied. Whether this court, known as FISA, is indeed fulfilling its mission is in turn examined by Congress and the media, and in this sense, by the electorate. Universal and Particularistic In many discussions comparing the liberal and commu­ nitarian positions it is at least implied that one has either particularistic obligations or universal ones. The two approaches seem oppositional: one either respects all persons equally or holds some individuals as command­ ing higher regard than others. For instance, one holds that all individuals are entitled to the same basic rights, say, to purchase a house for sale, or one discriminates between members and nonmembers of a community, according members the right of first refusal. Some ethi­ cists argue that we owe no more and no less to someone halfway around the world than we owe to someone in our own community. Peter Singer has famously advo­ cated this strict universalism and its corollary, the moral illegitimacy of particularistic obligations. This antiparti­ cularistic position is philosophically false, empirically troubled, and potentially morally dangerous. Communitarians hold that membership and participa­ tion in community are at once fundamental to human functioning and essential for the development of identity, character, and human flourishing. From this emanates a moral obligation to nurture and sustain community and the particularistic obligations without which community cannot exist. However, as I see it, the opposition between particularistic and universal obligations holds only if we

assume that one’s position on this matter must be allencompassing. There is no logical requirement to assume such comprehensiveness, and in social reality people often combine the two orientations. Thus, even if we owe certain obligations to all human beings, we still have additional obligations to members of our own communities, whether local, national, or regional. One may argue that such a combination may hold only as long as one limits universal rights to negative liberty rights that impose only duties of noninterference. According to this objection, if positive liberty rights are included (e.g., a right to an education), these impose a duty to provide whatever is needed to satisfy this right for all. My point, however, is that even if we owe certain obligations to provide a minimum level of well-being to all, we still may be obligated to give more to members of our own community. There is no principled reason that a person cannot fully respect many universal rights (e.g., to free speech, to a given level of education) as well as some particular­ istic obligations to members of his or her community (e.g., to help a particular family or school). The issue explored here is not whether one ought to respect particularistic obligations instead of universal ones, but whether one is on justifiable moral grounds when one assumes any obli­ gations to members of one’s community that are not extended to everyone. The observation that one can combine particularistic and universalistic obligations does not suggest that these orientations never come into conflict. However, this is not a reason to abandon either, and there are procedures to work out these differences and find a point of balance between the two. An example might help to clarify the difference between a communitarian approach and a strict univers­ alist approach and the ways this position applies to social policy. In 1997, a school in Greenwich Village, a part of New York City, decided to let a teacher go because of budgetary reasons. The parents reported to the school that they would raise the $46 000 needed to keep the teacher. However, the New York Schools Chancellor ruled that such donations were unacceptable. His decision sought to avoid ‘‘opening the door to widespread efforts by parents to raise money’’ for their children’s schools. The Chancellor reasoned that such donations would create inequities between schools in poor and rich districts. Another reason was that such donations would undermine the willingness to support taxes used to pay for the total school system. If parents wanted to make donations, they should make them to the school system and not to their schools, he argued. Note that the issue is not whether Village residents should be allowed to neglect their universal duties and merely attend to their particular ones. The parents con­ tinued to pay taxes dedicated to the total school system.

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The opposite question is raised, whether they should be allowed to respond to their moral sense of having extra obligations to their community, to contribute additional funds to its school. Responsive communitarianism favors living up to these additional, particularistic obligations, as long as they are additional to the universalistic ones rather than replacing them. Living up to these obligations reinforces the sense of community without undermining respect and support for universal rights. Moreover, the community is essential for human flourishing.

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Obama B (2006) The Audacity of Hope. New York: Crown/Three Rivers Press. Pinker S (2008) The stupidity of dignity. The New Republic. 28 May. Sandel M (1982) Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. Schulman A (2005) Staff Working Paper on Bioethics and Human Dignity for The President’s Council on Bioethics. 9 December. Selznick P (2002) The Communitarian Persuasion. Washington, DC: Woodrow Wilson Center Press. Taylor C (1989) Sources of the Self: The Making of the Modern Identity. Cambridge: Cambridge University Press. Walzer M (1983) Spheres of Justice. Oxford: Blackwell.

Relevant Website See also: Autonomy; Bioethics, Overview; Liberalism; Moral Relativism.

Further Reading Avineri S and de-Shalit A (eds.) (1992) Communitarianism and Individualism. Oxford: Oxford University Press. Bell D (1993) Communitarianism and Its Critics. Oxford: Clarendon Press. Bell D (2000) East Meets West: Human Rights and Democracy in East Asia. Princeton: Princeton University Press. Bellah R, Madsen R, Sullivan WM, Swidler A, and Tipton S (1985) Habits of the Heart. Berkeley: University of California Press. Benhabib S (1992) Situating the Self: Gender, Community, and Postmodernism in Contemporary Ethics. New York: Routledge. Beyleveld D and Brownsword R (2001) Human Dignity in Bioethics and Biolaw. New York: Oxford University Press. Ehrenhalt A (1995) The Lost City: Discovering the Forgotten Virtues of Community in the Chicago of the 1950s. New York: Basic Books. Etzioni A (1996) The New Golden Rule. New York: Basic Books. Etzioni A (2004) From Empire to Community. New York: Palgrave MacMillan. Frazer E (1999) The Problems of Communitarian Politics. Oxford: Oxford University Press. Glendon M-A (1991) Rights Talk: The Impoverishment of Political Discourse. New York: The Free Press. Macklin R (2003) Dignity is a useless concept. British Medical Journal 327: 1419–1420. MacIntyre A (1984) After Virtue. Notre Dame, Indiana: University of Notre Dame Press. Meilander G (2007) Human dignity and public bioethics. The New Atlantis 17: 33–52. Mulhall S and Swift A (1992) Liberals and Communitarians. Oxford: Blackwell.

http://www.gwu.edu/�ccps/rcplatform.html – The Responsive Communitarian Platform.

Biographical Sketch After receiving his Ph.D. in Sociology from the University of California, Berkeley in 1958, Dr. Amitai Etzioni served as a Professor of Sociology at Columbia University for 20 years. He was a guest scholar at the Brookings Institution in 1978 before serving as a Senior Advisor to the White House from 1979 to 1980. In 1980, Dr. Etzioni was named the first University Professor at The George Washington University, where he is the Director of the Institute for Communitarian Policy Studies. From 1987 to 1989, he served as the Thomas Henry Carroll Ford Foundation Professor at the Harvard Business School. Dr. Etzioni served as the president of the American Sociological Association in 1994–95, and in 1989–90 was the founding president of the Society for the Advancement of SocioEconomics. In 1990, he founded the Communitarian Network, a not-for-profit, nonpartisan organization dedicated to shoring up the moral, social, and political foundations of society. Dr. Etzioni is the author of numerous books, including The Limits of Privacy (New York: Basic Books, 1999), The New Golden Rule (New York: Basic Books, 1996), The Spirit of Community (New York: Crown Books, 1993), and The Moral Dimension: Toward a New Economics (New York: The Free Press, 1990).

Community Consent Z Xiaomei, Chinese Academy of Medical Sciences/Peking Union Medical College, Beijing, China ª 2012 Elsevier Inc. All rights reserved.

Glossary Confucianism A Chinese philosophical system developed from the teachings of the Chinese philosopher Confucius (551–478 BC). Qi, yin and yang In language qi means air; however, in Chinese culture it refers to a kind of physico-psychic entity or vital energy, which is the origin of all things in the universe. Its counterpart may be something like

Challenge to the Traditional Model of Informed Consent Informed consent is a key requirement in research ethics stipulated in international ethical guidelines as well as in national regulations or documents for governing bio­ medical and health research involving human subjects. Together with the ethical review committee, informed consent is generally recognized as one of two major pillars for protecting research participants in biomedical and health research. The traditional model of informed consent implied in the Belmont Report and international documents such as the Helsinki Declaration, CIOMS/WHO’s International Ethical Guidelines, and UNESCO’s Universal Declarations is labeled as liberal or individualistic. Underlying this liberal or indi­ vidualistic model is the presumption of the concept of personhood, which defines the essence of human person­ hood in terms of the capacities to act rationally and to make independent and voluntary choices. An entity is conceived as a person or a human if and only if it possesses certain properties: (1) self-consciousness (of oneself as existing over time), (2) the capacity to act on reason, (3) the capa­ city to communicate with others by command of a language, (4) the capacity to act freely, and (5) rationality. Such an understanding of the essential properties of personhood is closely related to John Locke’s classical analysis of a person as a ‘‘thinking intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places’’ (Locke, 1975: 508). These are the properties that distin­ guish the human from the nonhuman animal. They are conceived to be universal and to cut across cultures. Liberalism, such as Rawlsian, also rests on an overly individualistic conception of the self, as communitarian thinkers such as Michael Sandel and Charles Taylor

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pneuma. The qi has two basic forms: yin and yang. All things in the universe, including human beings, are the product of yin-yang interactions. Wu xing A term in Chinese philosophy that is translated as Five Elements or Five Movements. They are Wood (mu`), Fire (huoˇ), Earth (tuˇ), Metal (j�ın) and Water (shuiˇ). The interaction among them is used to explain the change in nature, society, and human body.

argued in the 1980s. It seems true that the concept of personhood that is assumed in most bioethical discussions is liberal and individualistic. Persons are conceived of as discrete and circumscribed, separate from one another, each with his or her own private interests that must be respected and accommodated as far as possible. This picture has been widely deployed to discuss ethical issues that arise in the context of clinical medicine or research where interventions are targeted at specific patients or research participants. In these circumstances, the larger social contexts, such as family, community, or culture, that patients and research participants inhabit tend to be treated as either irrelevant or obstacles to their autonomy. The liberal, individualistic concept of personhood or self entails the independent, discrete autonomy – that is, the assumption that individuals make decisions freely because they are unconstrained by social affiliations, such as family or community connectedness. The presumptions underlying the traditional model of informed consent – that is, the liberal and individualistic concept of personhood and independent and discrete autonomy – have been challenged by communitarian, feminist, and Confucian philosophers and have met diffi­ culties in research practices, especially in host countries or communities with non-Western culture or unique subcultures. Challenge from Communitarians In an influential essay titled ‘Atomism,’ Charles Taylor objected to the liberal view that ‘‘men are self-sufficient outside of society’’ (Taylor, 1985: 200). Instead, Taylor defended the Aristotelian view that ‘‘man is a social animal, indeed a political animal, because he is not self-sufficient alone, and in an important sense is not self-sufficient outside a polis’’ (p. 190). Moreover, he

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argued that this atomistic view of the self seems to under­ mine liberal society because it fails to grasp the extent to which liberalism presumes a context in which individuals are members of, and committed to, a society that pro­ motes particular values, such as freedom and individual diversity. Fortunately, most people in liberal societies do not really view themselves as atomistic selves. Drawing on the insights of Heidegger and Wittgenstein, communitarians argue that the liberal view neglects the extent to which individuals are embodied agents in the world. They argue that it is hardly impossible for us to realize a predesigned and autonomously arrived-at life plan; instead, vast areas of our lives are in fact governed by unchosen routines and habits that lie in the background. We ordinarily think of ourselves, as Michael Sandel stated, ‘‘as members of this family or community or nation or people, as bearers of this history, as sons or daughters of that revolution, as citizens of this republic’’ (Sandel, 1981: 179). Social attachments more often than not are involun­ tarily picked up during the course of our upbringing, with rational choice having played no role whatsoever. It opens the possibility of a deep challenge to liberal foundations. Perhaps we are able to reexamine some attachments, but the problem for liberalism arises if there are others so fundamental to our identity that they cannot be set aside, and that any attempt to do so will result in serious and perhaps irreparable psychological damage. In fact, this challenge to liberalism would only require that commu­ nitarians be able to identify one end or communal attachment so constitutive of one’s identity that it cannot be revised and rejected. Challenge from Feminists Feminist philosophers note that the difficulty with this liberal or individualistic model is that individuals are not really independent, purely rational, separate, and selfinterested. We are all social through and through. Humans develop within historical, social, and political contexts and only become persons through engagement and interaction with other persons. When called upon to make important decisions, we often do not have a wellordered set of values that can be rationally applied but, rather, feel our way to a decision in conversation with others who help us to determine who we are and what we stand for. In medicine, patients are not self-contained units in terms of their health needs; their health status is inevitably affected by their particular historical, social, and economic position. Hence, even in ordinary medical interactions, the traditional individualistic model of per­ sons is limited. Several feminist theorists identified this difficulty, and they proposed a relational conception of personhood as a more adequate conception for clinical and research ethics. In place of an individualist notion of autonomy predicated on a separation of human beings

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and a contractual paradigm of human relations, some feminist philosophers argue a different thesis that persons are not fundamentally separate and isolated but, rather, are literally constituted by the relationships of which we are a part. ‘Relationship’ implies a connection between two or more differentiated participants. Consent theory entails seeing obligation as individually negotiated contracts between otherwise unconnected individuals. The notion of relational personhood allows us to recog­ nize the ways in which membership in particular social groups helps to constitute identity by shaping the ways in which others see and respond to each person. In societies that treat gender, race, class, age, disability, and ethnicity as socially salient characteristics, people will find them­ selves on either the privileged or the disadvantaged side of the divides. Hence, relational personhood not only makes evident that all persons are (at least partially) socially constructed but also reminds us that we are not all constructed as equals. In the same vein, feminists insist that the notion of autonomy to be used in bioethical discussions be under­ stood relationally rather than in its traditional individualistic formulation. Relational autonomy embraces (rather than ignores) the fact that persons are inherently social and politically and economically situ­ ated beings, raised in social settings, who learn to develop their interests and values in conversation with other social and politically and economically situated beings. Rather than pretending that individuals can make decisions ‘free’ of outside influences, relational autonomy encourages us to pay close attention to the types of forces that may shape an individual’s decisions. We need to be explicit about the fact that each person’s values are chosen in contexts that involve learning from and engagement with others; more­ over, each must learn and practice the skills necessary for making responsible choices in social circumstances. As such, autonomy is a product of social relations rather than a purely individual achievement. Challenge from Contemporary Confucian Philosophers Contemporary Confucian philosophers argue that a major difficulty of the individualist view of autonomy is that it involves the notion that we can abstract individuals from relationships, from social context, and even from qualities of human agency that are deemed vital, namely the capacity and need for connectedness, relationships, and mutual care. In many Eastern societies, Confucianism is an important moral and intellectual resource for a different self-understanding to the liberal model of the human agent. Confucian moral philosophy presupposes human relatedness, rather than separation of persons, as the essence of human existence. Care, compassion, and responsibility to others are the moral capacities that

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define us as human. Chinese Confucian conception of human personhood is essentially nonindividualistic, noncontractual, and relational in nature. In the Chinese Confucian tradition, the human subject is never seen as an isolated individual but is always conceived of as part of a network of relations. A person is always a ‘person­ in-relations’ – a point well captured by Wu, who wrote, ‘‘Traditionally, a Chinese seldom thought of himself as an isolated entity. He was a concrete individual person who moved, lived, and had his being in the natural milieu of the family’’ (1967: 342–343). For the Confucian Chinese, what differentiates humans from animals is the ability to have human relationships and to follow morality. On this understanding, the Confucian self is always a relational self, a relational being. It is in the midst of one’s social relations that one learns to be human and realizes one’s humanity. The moral starting point of the Confucian self is relationship with others and not individual freedom and rights. It is in one’s role relationships and role performance that the self finds the source of one’s sanctity as a human being and the basis of one’s self-esteem, worth, and fulfillment. In the Confucian account, reciprocity is not conceived in terms of a kind of transaction like an exchange of gifts or goods. The moral basis of reciprocity is not a social contract; rather, it is our interconnectedness and interdependence. In a truly reciprocal role relationship in which there is mutuality in the interaction, ‘self’ and ‘other’ are both constituted as well as constitutive of each other in the bonding and individuation that take place within the relationship. The reciprocity of benevolence in relationship is the guiding principle that has structured society and human interaction in China for nearly 2000 years. All these challenges seem to make people believe that it is not justifiable to see the individual as decision maker who does it without regard for his or her social affiliations. The recognition of this point is reflected in international and national documents on research ethics. In the Helsinki Declaration (2008), it is recognized that in the informed consent process ‘‘it may be appropriate to consult family members or community leaders’’ (Article 22). In the International Ethical Guidelines on Biomedical Research invol­ ving Human Subjects (2002), the role of community in informed consent is recognized in ‘Guideline 2: Ethical Review Committees,’ which states, The ethical review committee in the host country must have as either members or consultants persons with such understanding; it will then be in a favorable position to determine the acceptability of the proposed means of obtaining informed consent and otherwise respecting the rights of prospective subjects as well as of the means proposed to protect the welfare of the research subjects.

It is also recognized in ‘Guideline 4: Individual Informed Consent’: ‘‘In some cultures an investigator may enter a

community to conduct research or approach prospective subjects for their individual consent only after obtaining permission from a community leader, a council of elders, or another designated authority.’’ For the most part, discussions about the role of community in informed consent have assumed the exis­ tence of a relevant community, without setting out criteria for identifying when a group of individuals con­ stitutes a community. Thus, we must first clarify what is community.

Defining Community The word ‘community’ is derived from the Old French communite´, which is derived from the Latin communitas, a broad term for fellowship or organized society. In sociol­ ogy, it was said that there were approximately 94 various definitions of the term by the mid-1950s. Traditionally, a ‘community’ has been defined as a group of interacting people living in a common location. The word is often used to refer to a group that is organized around common values and social cohesion within a shared geographical location, generally in social units larger than a family. The type of community most easily visualized has shared geography, history, race, culture, and religion, such as a tribe living in a given territory. There are two perspectives in defining community: the personal perspective and the sociological perspective. However, in either case, central to the definition of a community is a sense of who is included and who is excluded from membership. A person may be a member of a community by choice, as with voluntary associations, or by virtue of his or her innate personal characteristics, such as age, gender, race, or ethnicity. As a result, indivi­ duals may belong to multiple communities at any one time. When initiating community engagement efforts, one must be aware of these complex associations in deciding which individuals to work with in the targeted commu­ nity. From a sociological perspective, the notion of community refers to a group of people united by at least one common characteristic among several, including geography, shared interests, values, experiences, or traditions. To understand and describe a community may involve factors related to people (socioeconomics and demographics, health status and risk profiles, and cultural and ethnic characteristics); location (geographic boundaries); connectors (shared values, interests, and motivating forces); and power relationships (communica­ tion patterns, formal and informal lines of authority and influence, stakeholder relationships, and resource flows). According to the Statement on Benefit-Sharing by the Human Genome Organization Ethics Committee (2000), there are two major types of community: communities of origin and communities of circumstances:

Community Consent Communities of origin are founded on family relation­ ships, geographical areas, cultural, ethnic, or religious groups in which one is born or raised. For example, the extended family constitutes a community based on inheritance. Communities of circumstance are groups in which one finds oneself, by choice or chance, later in life. These include groups based on shared interests, work­ places, labor unions, and voluntary associations.

The statement explained that both types of communities can be defined across several dimensions, including geography, race/ethnicity, religion, or disease state. For example, a small town may be a community of origin if most inhabitants were born there, or it may be a community of circumstance if most are newcomers. Persons with the same disease could form a community of origin if there is a family history, as may be the case for monogenic disorders, or a community of circumstance, which is usually the case for common multifactorial dis­ eases. However, people with common multifactorial diseases, such as heart disease, hypertension, cancer, or diabetes, may not regard themselves as communities. Weijer and Emanuel suggest that for purposes of medical research–community partnerships, a community is a more or less cohesive group of people who are bound together by commonalities involving the following 10 main characteristics, each of which varies along a continuum: (1) common culture (including language), (2) comprehensiveness of culture, (3) health-related common culture, (4) legitimate political authority, (5) representative group/individuals, (6) mechanisms for collective priority setting (and decision making), (7) geographical localization, (8) common economy, (9) communication network, and (10) self-identification as a community.

Community Involvement in the Informed Consent Process Broadly speaking, community involvement/engagement in research is the process of working collaboratively with and through groups of people affiliated by geographic proximity, special interest, or similar situations to address issues affecting the well-being of those people who may be candidates for research participants in a community. Community involvement/engagement adds a concern for the ethical treatment of groups or community to the moral individualism of the foregoing ethical guidelines or documents. What is new is the ethical assumption that researchers have an obligation to take certain community views and interests into account, and that community input can be essential to conducting research ethically. It expands research constraints by adding the obligation to protect vulnerable communities from significant harms

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and to respect their integrity. Community involvement/ engagement has begun to evolve into a new phase termed ‘community–research partnerships’ (‘community partici­ patory research,’ ‘community collaborative research,’ or ‘community-based participatory research’). It involves an active collaboration between researchers and a host com­ munity, in which both sides engage in some significant aspect(s) of a scientific investigation. The collaboration can range from informal discussion aimed at mutual understanding and adjustment of the proposed protocol to involving the negotiation of every aspect of the study – for example, selection of research goals, identification of subject population, research design, ownership of the data, and publication. Unlike most research, community participatory research involves some sharing of power between the community and the investigators. The com­ munity involvement/engagement in research must have an impact on the informed consent process. Community involvement in the informed consent process may occur in several situations. First, community approval is the precondition for community members to consider whether to participate in a given research. The sociopolitical structure of traditional communities in developing countries, particularly those in rural areas, is quite different from those in industrialized countries. Members of many communities in developing countries have stronger social affiliation to their community than do members of communities in industrialized countries. Also, the cohesion between the former is closer than that between the latter. When investigators and their sponsors come to a community to do research, they should first get approval from the community before they contact indi­ vidual members to inquire about the possibility for them to participate in the research. If they contact them before the community approves, it violates the rule of the community, and often members will be reluctant to par­ ticipate in the research because it is an outsider’s project. Thus, from the beginning, it is crucial for investigators to establish a partnership with community leaders and dis­ cuss or negotiate with them every aspect of the research protocol, including identification of the subject popula­ tion and specification of the informed consent process. When the project becomes the community’s self-project, not an outsider’s project, the informed consent process launched by investigators will be smoothly and success­ fully achieved with the help of the community’s members. Second, when the investigators contact members of the community as prospective research participants, these members may feel ambivalent and have difficulty making the decision. They need to discuss their possible partici­ pation with their family members, friends, and/or other members of the community who they think are knowl­ edgeable and experienced. This is necessary because there is an encounter between two different cultures when investigators who come from developed countries

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and are familiar with terms such as ‘atoms,’ ‘molecules,’ and ‘genes’ contact prospective research participants who are members of a community with a non-Western culture, such as in China, and only familiar with terms such as qi, yin and yang, wu xing. In the practice of community involvement/engagement in research, community advisory groups/community advisory committees (CAGs/CACs) have been created to provide assistance and counseling to prospective research participants of the community with regard to the informed consent process in some developing countries, including China. These CAGs/CACs assist members of the community to comprehend the information disclosed by investigators, and they provide interpretation of terms with which community members are unfamiliar. Third, the research may bring harms to the third party. It is now recognized that nonconsenting, nonparticipant members of a community can be harmed by research on other members of their group. For example, in the National Bioethics Advisory Commission’s report, Research involving Human Biological Materials: Ethical Issues and Policy Guidance, it is stated that certain types of research, such as genetic and environmental studies, can pose risks for nonparticipating members of the subject’s group, for example, by revealing a predisposition among the subject population that could result in stigmatization and/or discrimination in such areas as insurance and employment. The study of the so-called ‘breast cancer genes,’ BRCAl and BRCA2, in Ashkenazi Jews illustrates the risk of group harm. The study’s finding that Ashkenazi Jewish women have a greater incidence of these genes could result in nonparticipating women of Jewish ances­ try suffering various forms of discrimination, such as ineligibility for health and life insurance, on the basis of their supposed increased risk of developing breast cancer. Similarly, the study of HIV/AIDS prevention and treat­ ment on some members of a village may result in other villagers not being able to sell their agricultural products on the market because of stigmatization and discrimina­ tion against the HIV/AIDS-stricken village. To address this problem of ‘third-party harm,’ the informed consent process has to include risks to other members of the subject’s community to be taken into account, and it has to encourage the potential subject to weigh the costs and benefits not only to himself or herself but also to the nonconsenting and nonparticipant third party. Also, it is necessary to have consultation with community represen­ tatives for facilitating the communication of relevant information about risks to the third party. Fourth, the research may bring harms to the whole group or to the whole community – so-called ‘group harms.’ It is a logical extension of the third point discussed previously. Group harms do not simply mean that they are suffered by most or all members of a group but mainly mean that most or all members suffer harms by virtue of

their identification with or participation in the group. For example, genetic research that may challenge a tribe’s origin myth or that shows, contrary to its customary beliefs about bloodlines, that certain individuals or groups do not belong may damage the community by disrupting the lineage relationships on which sociocultural power and prestige are based. This harm may be permanent, outlasting living individuals and affecting those yet unborn. Thus, in the group context, the duty to minimize harm to research subjects gives rise to the obligation of investigators to try to protect the entire community from harms that go beyond the interests of the individual research subjects who are drawn from that community. The researchers’ cost–benefit calculations should include group harms and how to disclose information on group harms to prospective participants, and researchers should discuss how to minimize group harms with community representatives. The advantage of community involvement in informed consent or community–research partnerships is that it may enhance the quality of individual informed consent and the level of active engagement in the research. It protects members of a community from agree­ ing to participate in research without being informed of possible deleterious consequences for the group or com­ munity to which they belong. It also advances a robust concept of ‘research participants’ by according them and other members of their communities a fuller engagement with investigators than there has been in the past. The somewhat passive research ‘subject’ is really replaced by a ‘participant’ who, along with cohorts, is rather actively involved in the whole research process. However, the pitfall of community involvement in informed consent process or community–research part­ nerships may be that because of the power structure in a community or the prevailing paternalism, this approach may deprive individual members of a community of their freedom to decide about the desirability of participating in a study by subordinating the autonomous individual to group/community authority. This deprivation of indivi­ dual free decision may occur in two ways: (1) The individual’s participation in the research may be pre­ cluded because of the researcher’s prior collaboration with community representatives about the conditions of acceptable research and (2) an individual may feel coerced into participating by the community leaders’ backing of the research project.

Debate on ‘Community Consent’ The controversial terms of ‘community consent’ and ‘group consent’ involve applying the concept of informed consent for individual research subjects to communities or groups to which they belong. For instance, some argue

Community Consent

that if individual research participants must be told about the unique psychosocial implications of genetic informa­ tion and its potential to affect family relationships, then the risks to groups of alterations in existing social rela­ tionships should be handled in like manner; that is, the group concerned must also be told about the risks. Doing otherwise would privilege the Western value of indivi­ dual autonomy over the value of social relations that prevail in some other non-Western cultures. Building on the notion that individual informed con­ sent requires an exchange of information leading to the participant’s understanding of the research and its risks and benefits, community consent entails an ongoing exchange of information between researchers and com­ munity representatives conducive to the proper identification, assessment, and evaluation of the benefits and harms of the research to the community and also development of strategies for harm minimization and benefit maximization. This means that the study should be explained in terms understandable in the local lan­ guage. In most cases, this requires that community members be consulted early in planning a study, and that they continue to be involved throughout the design, development, implementation, and distribution of research results. In contrast with individual informed consent, researchers partnering with communities are expected to show respect by continually negotiating changes in the protocol to address observations and/or objections from the community. However, although community involvement/engage­ ment in the whole research process or community– research partnership is desirable and even imperative for research in the community with non-Western culture, it should not be confused with the decision making on consent. When the investigators and the community representatives in partnership are in equal status to dis­ cuss the risks:benefits ratio, including risks:benefits to individual members if they participate in the research, to the nonconsenting and nonparticipant third party, and also to the group or community, it is one thing; however, making decision to consent to participate in the research or not is another thing. Consent is an individual decision in which the decision is to be made for whether an individual participates in the research or not. If we use the term ‘community consent,’ it will lead to conceptual confusion. In application, the term ‘community consent’ will be misleading: It will lead people to mistakenly think the leader of the tribe, the clan, or the village has power to decide which members in his or her community should be the research participants in a given research. In any com­ munity, its members are not equal: Some have a privileged or advantaged status, and some have a vulner­ able or disadvantaged status. The power structure in the community may make ‘community consent’ compromise

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the voluntarism and freedom of consent. Some cultures place a higher value on communal over individual deci­ sions. In some cases, the leader of the tribe decided who should be research participants against their own will. This led to coercion, and it violated basic research ethical principles. The term ‘community consent’ will do disre­ putable justification for this practice. The options facing investigators include (1) giving up the research in a com­ munity and seeking another community in which to do it or (2) if the research is very important and may bring great benefits to the community, investigators can help to protect individual research subjects from community coercion by making individual consent a condition of their participation in a partnership. For example, a pro­ tocol might allow individual research subjects to opt out of a study in private, without anybody else in the com­ munity knowing. The linguistic construction like ‘community consent’ is also criticized from the postmodern perspective. Not only does the term ‘community’ mask the heterogeneity of groups but it also conveys a false sense of harmony and mutuality within a group that may conceal the opposite, for example, by linguistically eliminating marginal voices. Communities may seem coherent and yet exclude the poor, the disabled, the ethnic outcast, and other discrimi­ nated-against groups from participating. Officially authorized representatives of a community often repre­ sent the elite, not the population as a whole. Community involvement in the process of informed consent should be promoted in the context in which family/community ties and traditional culture are very strong. This involvement means that before investigators contact any member of a community who is a prospective subject, the research project should be discussed with the head of the family/community and approval should be obtained from him or her. However, this does not mean that the community leader has the power to decide which members should participate in the research. The decision of whether to participate in the research or not must be made by the individual members. Thus, the terms ‘family consent’ and ‘community consent’ are misleading. Actually, this kind of informed consent may be coined as ‘informed consent with aid of community.’

Tensions in the Informed Consent Process in Communities with Non-Western Culture When the informed consent process is performed in a community with non-Western culture, tensions between the values underlying informed consent and the values of local cultures will occur. When a community is involved in the informed consent process, does the authority of

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community leaders compromise the principle of informed consent and its implementation? In addition, even if the prospective subject comprehends the information and consents to participate in the research, he or she may refuse to sign the consent form. This may be due to the value in the culture that oral commitment is more sacred than written, or it may be a result of the painful experi­ ences of illiterates who are gravely harmed by misleading contracts after they have signed them. In the informed consent process, three optional approaches or policies to the cultural divide when dealing with the tensions between different values in different cultures can be employed:

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Traditionalist approach: Here, ‘traditionalist’ means totalistic commitments to the beliefs and values in the traditional native culture of the developing country in which scientific research is conducted. If we use the traditionalist approach to cope with the tensions between the principle of informed consent and local culture, it will completely violate the international guidelines on research ethics and put us in a position in which we are unable to protect the rights and welfare of human subjects. Thus, this approach is not ethically justifiable or acceptable. Modernist approach: ‘Modernist’ means totalistic com­ mitment to the beliefs and values in Western culture that are embodied in guidelines on research ethics in Western countries and complete disregard of the beliefs and values in native culture. It will make the tension even worse. Native culture is not monolithic; rather, it can be divided into positive elements that may benefit native people of this generation and negative elements that may harm them. Consider the example of family value. Family ties may provide support to a needed member and improve his or her well-being, although sometimes the family may infringe upon a vulnerable member’s individual rights and freedom and not justly allocate resources to vulnerable members. Completely disregarding native values is not ethically justifiable or acceptable. Reconciliation approach: ‘Reconciliation’ means that when applying international ethical guidelines, we should respect the beliefs and values of the native culture and try to assimilate its positive elements into the procedures in our research. It is the only approach in which we are able to properly address the cultural tensions and effectively protect the rights and welfare of human subjects. To achieve the goals, we have to separate the hard core of the informed consent principle in protecting human sub­ jects and its periphery. The hard core of the informed consent principle consists of (1) faithfully disclosing infor­ mation adequate for patients/human subjects to make decisions without distortion, cover-up, and deceit; (2) actively helping them understand the information

•

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provided; and (3) upholding free consent without undue inducement and coercion when patients/human subjects are competent to make decisions and proxy consent when they are incompetent. The hard core is what must be adhered to and cannot be compromised across cultures. Its peripheral parts include the way in which information is disclosed (using written materials or videotape/VCD/ DVD), the way consent is expressed (written form with signature or orally with a witness), the wording used on consent forms (whether using the words ‘research’ or ‘experiment’), and the family’s/community’s involvement in the process of informed consent. The periphery is flexible and variable depending on the specific culture. The difference between scientific research (including clinical trials) and medical care must be clearly pointed out to prospective human subjects in order to prevent therapeutic misconception, whereas the wording can be flexible, such as using the words ‘observing new drug’s safety and efficacy’ or ‘studying the relationship between genes and diseases’ to replace the terms ‘drug research’ or ‘genetic research’ on the consent form if and only if prospective subjects have already expressed a willingness to participate in research but dislike the terms ‘research’ or ‘experiment.’ In the case in which the prospective subject is volun­ tarily willing to participate in the research after comprehending the information disclosed to him or her but is not willing to sign the consent form and prefers oral consent, the oral consent should be permitted. The oral consent is better arranged formally, and a third-party witness independent of research can sign on the consent form to confirm that the human subject voluntarily decided to participate in the research but did not want to sign the consent form.

Further Reading Council for International Organizations of Medical Sciences (CIOMS)/ World Health Organization (WHO) (2002) International Ethical Guidelines on Biomedical Research Involving Human Subjects. Geneva: CIOMS/WHO. Human Genome Organization (2000) HUGO Ethics Committee: Statement on Benefit-Sharing. Geneva: World Health Organization. Locke J (1975) An Essay Concerning Human Understanding. Oxford: Clarendon. National Bioethics Advisory Commission (1999) Research Involving Human Biological Materials: Ethical Issues and Policy Guidance Volume 1. Report and Recommendations. Rockville, MD: National Bioethics Advisory Commission. Sandel M (1981) Liberalism and the Limits of Justice. Cambridge, UK: Cambridge University Press. Sharp R and Foster M (2000) Involving study populations in the review of genetic research. Journal of Law, Medicine and Ethics 28: 41–51. Sherwin S and the Canadian Feminist Health Care Research Network (eds.) (1998) The Politics of Women Wealth: Exploring Agency and Autonomy. Philadelphia: Temple University Press.

Community Consent Tao J (1999) Does it really care? The Harvard Report on Health Care Reform for Hong Kong. Journal of Medicine and Philosophy 24(6): 571–590. Tao J (2004) Confucian and Western notions of human need and agency: Health care and biomedical ethics in the twenty-first century. In: Qiu RZ (ed.) Bioethics: Asian Perspectives – A Quest for Moral Diversity, pp. 13–28. Dordrecht: Kluwer. Taylor C (1985) Philosophy and the Human Sciences: Philosophical Papers 2. Cambridge, UK: Cambridge University Press. Voluntary Hospitals of America, Inc. (1993) Community Partnerships: Taking Charge of Change through Partnership. Irving, TX: Voluntary Hospitals of America, Inc. Weijer C and Emanuel E (2000) Protecting communities in biomedical research. Science 289: 1142–1144. Weijer C and Miller P (2004) Protecting communities in pharmacogenetic and pharmacogenomic research. Pharmagenomics Journal 4: 9–16. Wu J (1967) The status of the individual in political and legal tradition in old and new China. In: Moore C (ed.) The Chinese Mind, pp. 340–364. Honolulu: University of Hawaii Press. Zakus J and Lysack C (1998) Revisiting community participation. Health Policy and Planning 13(1): 1–12.

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Biographical Sketch Professor Dr. Xiaomei Zhai is the Professor and Director of the Department of Social Sciences and the Humanities, Peking Union Medical College, and Executive Director of the Center for Bioethics, Chinese Academy of Medical Sciences/Peking Union Medical College (CAMS/PUMC). She is a Member of the Ethics Committee, HUGO (Human Genome Organization); the Chair of IRB, AIDS Research Center of CAMS/PUMC; a Member of the National Ethics Committee, Ministry of Health; the Vice-Chair of the Ethics Committee, China’s Center for Disease Prevention and Control; the President of the Chinese Society for Bioethics; the Chair of the Ethics Committee on Stem Cell Research, CAMS; the Chair of the Ethics Committee, the Chinese Association of STD/AIDS Prevention and Control; and the Vice-Chair of the Ethics Committee, Chinese Society for Genetics.

Complementary Medicine M Weir, Bond University, Gold Coast, QLD, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Codes of ethics A collection of rules or criteria (sometimes described as a code of conduct) provided by a professional body to indicate to practitioners and consumers what is considered acceptable professional practice. Complementary and alternative medicine (CAM) Refers to those health modalities not applied by orthodox medicine that generally emphasize holistic approaches to health care with less emphasis on disease and a greater focus on promoting harmony in the body to thereby promote health. These modalities seek to enhance the healing capacity of the body to heal itself. Some forms of CAM are derived from traditional forms of health care with a very long heritage (e.g., acupuncture and traditional Chinese medicine), whereas others have arisen during approximately the past 200 years (e.g., homeopathy and chiropractic). Other examples of CAM are naturopathy, herbal medicine, and osteopathy. Manipulation Associated with chiropractic or osteopathy and usually refers to high-velocity, low-amplitude adjustments to the human spine to promote health, freedom of movement, and pain relief. This form of therapy is commonly limited by statute to

Introduction Medical ethics provides valuable guidance for the ethi­ cal practice of complementary and alternative medicine (CAM), but it is inappropriate to simply apply ortho­ dox medicine (OM) ethical principles without differentiation to the practice of CAM. Whereas ethics is fundamental to any professional practice, the OM ethical framework derives from a specific context. The simple application of the OM ethical framework to CAM fails to consider that context. This is a significant issue because from an OM perspective, if a CAM modality or treatment is not scientifically proven, it is a small step to suggest that it is unethical to provide that type of treatment. Unlike the monolithic OM, the various modalities that comprise CAM – including chiropractic, osteopathy, homoeopathy, massage therapy, naturopathy, traditional

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chiropractors, osteopaths, physiotherapists, and medical doctors. Orthodox or Western medicine The type of medicine taught in most Western medical schools. Professional association Any representative organization composed of practitioners from a particular profession that provide leadership and guidance to practitioners. Professional associations often arrange professional indemnity insurance and continuing professional training for members. Professional associations normally enforce a code of ethics. Breach of professional ethics may result in removal or suspension from membership. Statutory registration The enactment of legislation by a jurisdiction that creates a register of approved practitioners who are entitled to use a specified title (e.g., chiropractor, osteopath, and physiotherapist) and may include limits on specified therapies (e.g., manipulation). These statutes usually include education and training requirements for registration and provide for enforcement of ethical standards by a registration board that can reprimand, fine, suspend, or remove a practitioner from the statutory register when a breach of these standards occurs.

Chinese medicine, and herbal medicine – derive from their own distinct historical periods and healing philoso­ phies. It is difficult to accept these constructs without accepting the different ethical parameters that they sug­ gest. For OM, much ethical debate revolves around the scientific evidence of efficacy and safety, and the resul­ tant measures of ethical practice and medical ethics are shaped by that context. CAM has a different self-concept and relies on different rules. Ethics as appropriately applied to CAM does not reject the application of basic ethical principles but suggests a model that draws upon the unique position of CAM. Although most CAM practitioners are not routinely involved in life and death decisions, this does not mean that CAM does not constantly involve significant ethical considerations, because any health care encounter will inevitably raise ethical issues. These relate to issues such as the following:

Complementary Medicine

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The level of information provided to clients about the risks and expected outcomes of treatment When the therapeutic relationship is best termi­ nated if the client is not receiving benefit from the treatment How to maintain an objective professional distance between a practitioner and client in the context of CAM, which encourages a close connection between practi­ tioner and client The ethics of the provision of therapy that has limited or no scientific proof of efficacy and/or safety compared to OM options

• •

Ethical Context of CAM Because CAM treatment often relies on empirical evi­ dence derived from the practitioner’s experience of what works, the ethical model suggested here places emphasis on a client’s autonomy to choose a therapy relying on his or her experience of the treatment. If a client feels better from a massage, does he or she not feel better? In addition, for some consumers of CAM, the therapeutic relationship may not be health driven; rather, it is driven by a desire for a relaxing, pleasurable experience such as may occur from a therapeutic massage. This must be balanced by the ethical concepts that deal with overservicing, the provi­ sion of useless therapies, or where the benefit sought by the client will not be realized. OM deals with health issues on a symptomatic basis, with success measured by the impact on those symptoms. CAM will generally search for the cause of a malady (often a chronic condition) to avoid this concern arising in the future and seek to establish ‘harmony’ in the body based on the concept of that term within the modality. In addition, CAM will envisage the client having a much more active role in the therapy, and this may be the expectation of the client. That may be an aspect of the therapy itself. For example, naturopathy, although com­ mitted to the ‘nature cure,’ relies on a client healing himor herself with the regime suggested by the naturopath. This creates a very different therapeutic relationship that should impact upon the ethical framework that applies. Many CAM practitioners are not subject to specific legislative regulation because they are unregistered prac­ titioners, which means that they are not subject to sanction for breach of statutory ethical requirements unless it also breaches some criminal or civil law require­ ment. This could occur if the act of the CAM practitioner constituted a criminal assault or the claims or representa­ tions made were considered misleading and deceptive based on consumer legislation that may apply in that jurisdiction to the practitioner. This means that some practitioners will only be subject to ethical codes of con­ duct for professional associations that they choose to join.

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Some CAM practitioners, such as chiropractors and osteopaths in the United Kingdom, United States, Australia, and Canada, and traditional Chinese medicine (TCM) practitioners (in some jurisdictions such as Victoria, Australia and British Columbia, Canada) have registered status, which means they are subject to control by statutory registration boards or colleges and statutorily endorsed ethical rules of practice. Although the practices of CAM and OM overlap, the primary difference in an ethical sense is the extent to which CAM relies on scientific evidence of safety and efficacy. If a client undertakes a CAM such as TCM in accordance with his or her cultural practice or that of his or her client, does it become unethical practice if a practi­ tioner cannot point to scientific evidence of its effect? If a client experiences relief from any malady, is this subjec­ tive experience not real because there may or may not be scientific evidence of the efficacy of the treatment? To state that these treatments perform no better than placebo may threaten that experience or cast doubt on the cultural construct that explains the healing or informs the patient what healing is for him or her. O’Connor suggests the need for a culturally sensitive approach to health care and an acknowledgment of a patient’s authoritative agency when considering the provision of CAM. O’Connor sug­ gests that a client can make decisions about health care based on his or her own valued goals, which do not necessarily align with those of the health professional as the basis of therapeutic decisions. Of course, this approach could open the door to the exploitation of patients who are hoodwinked into treat­ ment that a practitioner insists is beneficial and necessary. The required balance to this reliance on the autonomous choice of a client is the external parameters drawn from professional requirements. This is where legal and ethical considerations intersect. A practitioner should avoid undue augmentation of the effectiveness of treatment other than a description of the modality’s beliefs of its effects. The level of traditional evidence of safety and/or efficacy should be canvassed as well as the practitioner’s own experience of the impact of the treatment contem­ plated. Within this concept, scientific evidence of efficacy or otherwise should be described and discussed and indi­ cations of harm canvassed.

Ethical Justifications The previously described approach to ethics derives from an emphasis on the ethical experience of practitioners without the imposition of esoteric concepts of ethics applied by OM in many contexts. Bioethics is often a product of the dominant biomedical paradigm in which Western values and its preoccupation with the rights of the individual influence views about what it means to be

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an ethical health practitioner. Medical ethics is derived from an authoritarian Hippocratic ethical background that envisages a ‘beneficent’ practitioner who makes ther­ apeutic decisions affecting a client who is obliged to obey. To balance the nature of this relationship, ethical practice requires a compensating attachment to scientific proof of efficacy to guard against inappropriate use of that position of authority. Johnstone embraces a more fluid view of ethics that acknowledges other ethical realities and sub­ jective perspectives. Johnstone considers that contrary to the assertions of modernist ethical frameworks, ethics should be seen as being multiperspectival and multicul­ tural in its vision to allow a diversity of interpretation and understanding. This approach to moral theory deals with ethical problems not known to earlier generations and suggests new methods to deal with moral questions. Johnstone notes that a postmodernist perspective indi­ cates that it may be possible to have a different perspective that challenges traditional medical ethics and mainstream bioethics. In this model, morality is derived from the nature and quality of the therapeutic relationship and not from rational noninvolved decision-making processes that may characterize the dominant culture. This moral dur­ ability permits a broader approach to bioethics that can incorporate the different perspective of CAM. This model draws on concepts such as intuitionism, which relies on ideas that a party (patient or practitioner) simply knows to be true. It allows consideration of the specific facts involved in therapeutic decisions before determining the ethical approach as distinct from the application of broader ethical principles no matter what the circumstances. This means that a different context may suggest that another ethical approach is appropriate. An example of this is when community group goals and outcomes are considered more important than those of the individual. In some cultures, such as Greek or Italian culture, the family may provide an important filtering device for bad news. In that context, if a medical doctor is obliged to comply with an ethical obligation to inform a patient about a negative prognosis, the doctor may consider it an obligation to communicate directly to the patient in a confidential setting. This may have a negative effect on the patient, who culturally may expect to receive such information through his or her family. Thus, standard ethical procedures may, in fact, in that context not be in the interests of the patient. Culturally appropriate responses may avoid a negative result and ethically may be the most appropriate way to proceed. This approach to ethics may not be accepted by OM. Some consider that any practice involving treatment of a person’s health – whether involving orthodox, alternative, complementary, or integrated medicine – must have its claims backed by scientific evidence. This view fails to

plumb the differences in the CAM approach to healing. This difference supports a different approach to ethical questions on some fundamental matters.

What Is Ethics? Ethics involves a practitioner in critically evaluating his or her activities and providing a systematic examination of the moral judgments, justifications, and actions to determine what a moral practitioner ought to do when faced with specific therapeutic decisions. The model of ethical philosophy as it has previously been applied to the healing professions tends to be medico-centric. The very different therapeutic approach taken by CAM and OM practitioners and their diverse philosophical backgrounds require an assessment of how ethical practice should be interpreted in this different context. The differences in therapeutic approach between OM and CAM may be less significant to modalities such as chiropractic or osteopathic practice, which rely on a sub­ stantial body of biomedical information and training, and may suggest a close relationship to medico-centric ethics. For modalities such as homoeopathy or spiritual healing, in which the biomedical dimensions are less important or are peripheral to day-to-day practice and the modalities rely on fundamentally different healing philosophies, the necessity to apply context-specific ethical concepts is emphasized.

CAM: Application to Traditional Principle Ethical Concepts Principle-based ethics has been influential in dealing with OM ethical issues. It is necessary to discuss these princi­ ples to determine how they may relate to the provision of CAM. These four principles are as follows:

• •

The principle of beneficence (the principle of healing) The principle of nonmaleficence (refrain from caus­ ing harm, including physical, financial, and emotional exploitation) The principle of respect for autonomy (which emphasizes informed consent for procedures and allowing patients to be active in the healing process). This princi­ ple provides a balance to medical paternalism, where autonomy and beneficence may conflict. The principle of justice

• •

Beneficence For OM, derived from Hippocratic tradition, the relief of suffering is a primary concern. This principle suggests a practitioner should cure those who can be cured and care

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for those who cannot. An OM practitioner may consider it unethical to attempt to treat an asymptomatic person. For a CAM practitioner, ‘curing’ may be defined in somewhat different terms and will involve healing through the pro­ motion of harmony across a patient’s physical, spiritual, and emotional dimensions. CAM practitioners may con­ sider OM as overly symptomatic. A CAM practitioner would suggest that the principle of beneficence does not necessarily require the curing of any condition but may be complied with by the promotion of harmony by encoura­ ging his or her patients’ own restorative forces to establish wellness and vitality and not simply a lack of symptoms. In some contexts, what might be considered as unethical or overservicing for an OM practitioner may be at the heart of what a CAM practitioner seeks to provide. An OM perspective would suggest this creates an ethical dilemma for a CAM practitioner who may be unable to point to scientifically based evidence of benefit or safety. OM may demand scientific evidence of efficacy, but CAM may rely on traditional, empirical, or anecdotal evidence. Drawing on the principle of autonomy, many patients will choose a therapy with knowledge of the available level of evidence of efficacy. Some patients will rely on a personal empiricism approach based on what they perceive is the outcome of the therapy and may choose to ignore evidence to the contrary or that there may be limited scientific evidence of efficacy. Within the culture of the CAM modality, the use of this treatment would be ethical if a patient is not misled about the nature of the treatment and evidence for benefit. If the evidence of efficacy and safety is completely absent, it may be unethical to provide that treatment. This would occur most clearly when there is no traditional or wellbased empirical evidence to support its use. Nonmaleficence The principle of nonmaleficence requires a practi­ tioner to avoid behavior that negatively affects a client’s interests. For OM, safety is fundamental. Examples of a breach of this principle include a nat­ uropath who unwisely recommends a diet that is not appropriate for a diabetic client, an injury suffered by a client of a chiropractor or osteopath from an overly vigorous manipulation, or the use of a technique by a health practitioner who is not properly trained in the technique to ensure safety. Other breaches include a negligent assessment of a client that does not reveal an underlying condition, using professional authority to unduly influence a client to purchase therapeutic sub­ stances for a profit or convincing a client not to visit a medical doctor if a condition worsens or does not resolve, becoming sexually involved with a client, or treating a patient when impaired. This principle sug­ gests that it is unethical to provide a treatment that

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harms the patient without a compensatory benefit or where there is little prospect of a positive outcome for the cost incurred by the client. Autonomy Respect for autonomy is a significant ethical principle that seeks to respect a person’s entitlement to make deci­ sions affecting his or her health. Autonomy requires a person to have dominion over decisions that affect him or her free from the controlling influence of others and inadequate understanding caused by a lack of information. This principle reflects the primacy given to personal values and individual autonomy in Western culture. This may not necessarily as easily apply in cultures in which paternalist sentiments may be dominant. This principle is reflected in the legal concepts of consent and the requirement to advise of risks of treat­ ment. For a CAM practitioner, the obligation is emphasized when a client contemplating treatment has little or no specific or general knowledge of the nature of a modality. A client may, for example, not appreciate what might be somewhat dramatic physical therapies involved in the practice of osteopathy or the nature of moxibustion as used by a TCM practitioner. A practi­ tioner should obtain consent to touch and for the activities required by the modality contemplated based on ade­ quate information. This is especially important when a number of different modalities, such as massage, acupunc­ ture, and heat, are used over a number of treatments. A separate consent should be obtained for each intervention. It is good ethical practice to ensure that there are no surprises from the perspective of the client, and it is best to create an ‘information-rich’ environment to ensure both ethical and legal obligations are satisfied. Stone and Matthews stated that consent should not be seen as a ‘tick the box process’ that gives a practitioner carte blanche to do what he or she considers appropriate. It requires a continuous process of recognizing the client’s ongoing cooperation and agreement with what is involved in treatment as it continues. Justice One perspective on the principle of justice is as ‘distribu­ tive justice’ in the sense of societal justice in the equitable distribution of benefits in society. Another perspective is the ability to obtain compensation for wrongs done, which applies at the practitioner/client level. The distributive aspect is reflected in The United Nations Declaration of Human Rights (Article 25, December 10, 1948), which states, ‘‘everyone has the right to a standard of living adequate for the health and well­ being of himself and his family . . . including medical care.’’ With the limited funding available for health care,

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should society support unproven therapies? Many OM commentators would answer this in the negative, arguing that decisions regarding government funding should be made on the basis of scientific evidence. This approach involves a government denying funding for treatment that is desired by a citizen based on the OM therapeutic model that rejects CAM as appropriate. This could be seen as a form of medical chauvinism. Private individuals in a just society should be entitled to choose and to be afforded appropriate protection for that choice. One solution to this dilemma is for more research to be performed on the effects, costs, and benefits of CAM. CAM is virtually unsupported by government in most countries, which means that most consumers of CAM need to rely on private health insurance or private resources to pay for the cost of CAM therapies. If a person is not able to afford that cost, this may offend the principle of justice. Although many private health insurance com­ panies do provide coverage for some CAM modalities, this is only relevant for consumers who can afford health insurance at the level required to include ‘extras’ such as CAM. The principle of justice also requires consideration of the role of professional indemnity insurance in preserving a client’s ability to recover for unethical or negligent acts by the practitioner. For financial reasons, some practi­ tioners may not obtain the required professional indemnity insurance and are prepared to risk personal liability. This decision may be made based on their con­ fidence about the quality of their practice, which in their mind will not lead to injury; the benevolent nature of the modality; or their lack of personal assets to justify legal action against them. A client who is injured by a negligent act may not be able to recover compensation for loss if the practitioner does not have sufficient assets to satisfy any possible liability in negligence or contract. This would breach the ethical principle of justice. This ethical prin­ ciple supports the statutory registration of CAM practitioners, incorporating the statutory obligation for professional indemnity insurance or incentives for mem­ bership of professional associations that require practitioners to obtain professional indemnity insurance for the protection of clients.

this provides ethical justification for CAM practice. This form of evidence is accepted in Australia in a number of contexts as sufficient. Although OM increasingly seeks to promote the prac­ tice of ‘evidence-based medicine,’ it is not entirely clear what percentage of OM treatments are based on good scientific evidence. A significant percentage of OM inter­ ventions lack appropriate support by scientific evidence. For some CAM interventions, there is scientific research that supports its application, but it is of variable quality. Evidence for the basis of CAM tends to rely on statistical or non-double-blinded research studies. When attempting to comply with their ethical obligations, CAM practitioners should assess the quantity and level of scien­ tific evidence for their practice and in some contexts discuss this evidence with the client as part of their obligation to respect the autonomy of the client. The ethics of the provision of treatment by any health practitioner involves a cost–benefit analysis within the nonmaleficence and beneficence concepts. Treatments may involve pain and have risks and side effects that should be communicated to the client. The decision to treat a client involves determining if the costs or potential risks of treatment are outweighed by the potential benefit that is likely to be derived from treatment. It is difficult to give advice on risks if there is no information available on this issue. If the potential harm of a CAM intervention (which should be explained before the treatment) is not likely to be associated with an offsetting benefit, then the treatment may be unethical unless the client has a clear understanding of the experimental nature of the treat­ ment. Harm can include inconvenience, financial cost, physical pain, and stress. What is the appropriate evidence of benefit? Much of the proof available for CAM derives from anecdotal or empirical data from traditional use, sometimes from many years of treatment. When dealing with an essentially harmless therapy (at least in terms of pain and physical injury), it is easier to accept that ethically this evidence will suffice. This approach may also be appropriate for chronic conditions for which there are no successful OM treatments.

Ethical Duty to Refer to Medical Doctor CAM without Scientific Evidence Is it unethical for a CAM practitioner to apply a techni­ que for which there is no scientific evidence of safety? OM would suggest that ethical practice requires the premarket testing of materials and scientific trials for procedures to test safety. CAM often relies on traditional evidence of safety and efficacy, sometimes based on thou­ sands of years of traditional use. Unless there is clear scientific evidence to the contrary, it is suggested that

Many clients have actively chosen to apply CAM after OM has proven ineffective. This was a significant reason why an English court in Situ v. Shakoor ([2000] 4 All ER 181) rejected an argument that the standard of care applied to a TCM practitioner should be that of a medical doctor. The court concluded that it was significant that the deceased person chose to consult a TCM practitioner and not an OM practitioner, and the standard of care should reflect that choice.

Complementary Medicine

Nevertheless, Situ v. Shakoor confirms that common law requires CAM practitioners to understand that they practice within an OM context, and it suggests that they should not ignore OM knowledge that may apply to a given situation and should avoid dissuading a client to seek OM assistance. This means that the duty of benefi­ cence requires CAM practitioners to understand the limitation of their competence and to refer patients to another CAM practitioner or to an OM practitioner if required. This may be problematic for CAM practitioners for a number of reasons:

•

OM has a strong tradition and a legal obligation to refer to a specialist for matters outside the expertise of the general practitioner. The tradition of referring to specia­ list colleagues is not as well established for CAM practitioners, although it is supported by some profes­ sional association codes of ethics. The hostility between OM and CAM makes referral between CAM and OM professionals less likely, although OM is becoming more open to closer ties with CAM practitioners. CAM practitioners trained within a very different healing paradigm may simply apply their modality with­ out considering the possibility of OM treatment options or referral to an OM practitioner. The exclusion of CAM from the orthodox health sector only encourages this isolationist stance. Because CAM practitioners may not be trained in biomedical physiology or are trained to a lower standard than medical doctors, they may not recognize a situation requiring medical intervention.

•

•

Nature of Therapeutic Relationship

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process of healing, in which the patient is an active participant. Similar ethical obligations apply to the practice of CAM and, in fact, may be even more important because some CAM treatment regimes are based on a very detailed assessment of the symptoms of a client. Based on subtle differences in symptoms and medical history, homoeopathic practice may suggest different remedies for what might appear to be similar maladies, with each remedy reliant on small but therapeutically significant constitutional tendencies or symptoms. A patient-centered treatment requires the maximum level of information to involve patients in the healing process. This participation suggests the need to reassess the duty of beneficence to ensure that client participation is central to the therapy. This might express itself in the ethical obligation to provide even more information to a patient to obtain consent and cooperation to any proce­ dure than may apply to OM. Arguably, if the therapy involves a self-healing process, such as a naturopath advising a client to radically change his or her diet, then the quality of the result may depend on the quality of the communication of the therapeutic objectives of the treat­ ment. Failure to attend to that communication is a fundamental failure of the practitioner’s ethical obligation to maximize the chance of effective treatment that derives from the beneficence principle.

Professional Ethics for CAM Practitioners: Current Situation Professional ethics for CAM practitioners reflects the tapestry of controls that characterize the legal framework for CAM in most countries.

Duty to Provide Information Medical doctors by training and culture have a more objective therapeutic model that requires the doctor to ‘do something to’ a comparatively inert patient, involving the practitioner in the application of a therapy or medi­ cine that deals with the identified pathogen or malevolent factor. The balance to this therapeutic approach is the principle of autonomy and legal principles suggesting the necessity for patients to consent to a procedure after they are informed what is contemplated and about the risks and possible outcomes and alternatives to treatment. This can easily apply to those CAM modalities that more closely approximate the medical model, such as in the case of chiropractic and osteopathy. For many CAM practitioners, the therapist is a conduit to activate and promote the client’s self-healing. This means that the client is responsible for any required lifestyle changes. In this context, the patient’s consent and cooperation is not simply a legal requirement but it is central to the

Codes of Ethics and Their Implication for Unregistered CAM Practitioners For the majority of CAM practitioners who are not sub­ ject to specific statutory control, professional ethics is found in codes of ethics that have been promulgated by most professional associations. Codes of ethics vary greatly. Codes of ethics may be aspirational, indicating general virtues or aims such as caring, communication, and competent practice. Codes of ethics may be prescriptive and indicate specific duties of practitioners or rules of professional conduct, such as practitioners should not guarantee results of treatment. Codes of ethics can provide a public statement of how practitioners in a profession can be expected to behave and for which they can be accountable and set a standard to be attained by any person entering the profession. Most professional associations have a code of ethics or code of practice. Members are obliged to comply with the

536 Complementary Medicine

terms of the code or risk losing their membership or being made the subject of disciplinary action. Unlike registered professions, nonregistered profes­ sions have little statutory backing to their codes of ethics. Although some conduct may also have civil and criminal consequences, the direct professional impact is limited to disciplinary proceedings. Exclusion from the professional association will have little or no impact on the ability to practice.

Typical Points Covered by Codes of Ethics The following are common provisions in codes of ethics: is a necessity for professional development and • There continuing education. primary concern for practitioners is that the health • The of the client is most important. should practice while being nondiscrimi­ • Practitioners natory on the basis of race, impairment, etc. should ensure they practice from safe, • Practitioners hygienic premises. indemnity insurance should be obtained. • Professional Practitioners • for practice. exhibit both physical and mental fitness should practice only within the discipline • Practitioners for which they are trained. Sexual relationships with clients should be avoided. • Practitioners should not indecently expose themselves • or their patients. should avoid conflict between their inter­ • Practitioners ests and those of their clients. of the practice should be honest and not • Advertising misleading. Practitioners should not use titles suggesting medical • qualifications.

Critique of Codes of Ethics Although codes of ethics seek to promote ethical behavior by members, they may also exhibit less laudatory inten­ tions or ‘enlightened self-interest’ that focus on attempts to limit competition in the profession for the benefit of maintaining higher fees and market share for members. An important purpose of a code of ethics is that it makes professionals aware of their particular responsibil­ ities to clients. Codes of ethics systematize the ethical rules of a profession to clarify the requirements for ethical practice. A properly drafted and well-thought-out docu­ ment can provide helpful guidance to professionals regarding their conduct, and it can increase the chance that practitioners will act in the interests of their clients and the profession and not purely in self-interest by providing sanctions for noncompliance.

The extent to which a code of ethics achieves its purpose will depend very much on the level of shared commitment to the principles at the basis of the expressed rules. Codes of ethics have been criticized for not being explicit in basing their guidance on fundamental ethical principles. For example, many state the need to obtain consent for treatment but do not clearly ground that need on the principle of autonomy. A code of ethics may state that it is unethical to become sexually involved with a client but does not refer to the principle of nonmaleficence. Codes of ethics are made by professionals for professionals and often do not deal adequately with the principle of justice, such as describing why a patient is entitled to compensation if he or she is the subject of negligent treatment and the need to deal sensitively with complaints. They will often not deal with the distributive justice issue that relates to provision of pro bono services. Codes of ethics tend to be couched in negative terms that emphasize what practitioners should not do rather than what they should aspire to achieve in their practice.

Conclusion This article suggests a new model of professional ethics for CAM practitioners that acknowledges standard ethi­ cal precepts but within the unique context of CAM practice. Once it is appreciated that OM ethics derives from its own therapeutic context, then the need to differentiate CAM ethics is easily understood. The suggested model emphasizes modality-specific ethical decision making drawing upon concepts of autonomy that requires an information-rich environment to function adequately. Ethical CAM practice based on legal reality and attention to the concepts of beneficence suggests a well-developed understanding of the need for referral to medical doctors when necessary and the promotion of well-informed decision making by clients. These concepts should also be incorporated into any statutory disciplinary structure that may be contem­ plated for CAM practitioners. See also: Applied Ethics, Overview; Codes of Ethics; Evidence-Based Medicine; Informed Consent; Placebo Treatment.

Further Reading Cohen MH, Ruggie M, and Micozzi MS (2007) The Practice of Integrative Medicine, A Legal and Operational Guide. New York: Springer. Crellin J and Ania F (2002) Professionalism and Ethics in Complementary and Alternative Medicine. New York: Haworth.

Complementary Medicine Ernst E (1996) The ethics of complementary medicine. Journal of Medical Ethics 22: 197–198. Faass N (2001) Utilization data on complementary and alternative medicine. In: Faass N (ed.) Integrating Complementary Medicine in Health Systems, pp. 12–21. Gaithersburg, MD: Aspen. Johnstone M (1999) Bioethics – A Nursing Perspective. Sydney: Saunders. Lynoe N (1992) Ethical professional aspects of the practice of alternative medicine. Scandinavian. Journal of Social Medicine 20: 217–221. O’Connor BB (1995) Healing Traditions: Alternative Medicine and the Health Professions. Philadelphia: University of Pennsylvania Press. Schneiderman LJ (1998) Medical ethics and alternative medicine. Scientific Review of Alternative Medicine 2: 63–66. Stone J (2002) An Ethical Framework for Complementary and Alternative Therapists. New York: Routledge. Stone J and Matthews J (1996) Complementary Medicine and the Law, Chap 13. Oxford: Oxford University Press. Sugarman J and Burk L (1998) Physicians ethical obligations regarding alternative medicine. JAMA 280: 1623–1625. Weir M (2005) Alternative Medicine: A New Regulatory Model, pp. 48–49. Melbourne: Australian Scholarly Press.

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Weir M (2007) Complementary Medicine: Ethics and Law. Brisbane: Prometheus.

Biographical Sketch Dr. Weir has broad professional experience as a solicitor in private legal practice in commercial and property law. During his aca­ demic career, he has published extensively on land law and planning law. He is author of Real Property Law in Queensland (LBC, second edition, 2004). He has a research interest in medicine and the law, with a focus on complementary and alternative medicine and law and ethics. This interest is reflected in the student textbook Complementary Medicine: Ethics and Law (Prometheus, 2000; third edition, 2007) and the text Alternative Medicine: A New Regulatory Model (Australian Scholarly Press, 2005).

Computer and Information Ethics J Heesen, University of Freiburg, Freiburg, Germany ª 2012 Elsevier Inc. All rights reserved.

Glossary Blog Blogs are frequently updated forms of individual websites. The term is a contraction of ‘Weblog,’ which is associated with a ship’s log. There are many different types of blogs, such as private blogs, blogs concerned with special issues, or blogs featuring video diaries (also called vlogs). Constitutive for all kinds of blogs is an interactive format. Short posts featured on these and other types of websites are known as microblogging or microcontent. Bot This term stems from ‘robot.’ Like a robot, bots are able to act autonomously. However, they have no material presence like humanoid or industrial robots because they act in digital network structures, as agents of their users. Bots are also called software agents, and some of them are designed as interaction partners in the

History of Computer and Information Ethics The twentieth century is associated with an immense development and the spread of electronic communication techniques. This began with the radio in the early 1920s, continued with the establishment of television in the midtwentieth century, and ended with the advent of the Internet and e-mail communication for general use in the 1990s. These developments were reinforced by considerable advancements in computers, which made new methods of storing information, as well as the processing and transferring of information, possible. In this vein, at the turn of the twenty-first century, a new development took place termed ‘ubiquitous computing’ – that is, the miniaturization and implementation of information technology (IT) in the objective world and thus the creation of so-called ambient intelligence. Information and communication technology finds application in two fields that partly coincide. In the first instance, this is as computer technology for science, the production of goods, marketing, logistics, and telematics in general. At the forefront of this are different forms of automatic data transfer and processing. Second, IT finds application as a medium for communication and the exchange of information between people, be it through online media, digital social networks, librarianship, or virtual reality. Diverse ethical questions have arisen as a result of these different fields and the advent of the computer. Computer

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form of avatars (i.e., a visual simulation of a human being). Intellectual property Intellectual property denotes specific legal rights that are related to the creations of artworks, literature, film, software, etc. Its main focus is the regulation of commercial exploitation rights in favor of its holder (copyright). Ubiquitous computing Ubiquitous computing (also called pervasive computing, ambient intelligence, context-aware computing, etc.) extends electronic communication networks into the objective environment. The idea is to connect local networks and the World Wide Web to intelligent objects of utility. Comprehensive information technologies shall disburden people while assisting in their activities in an unobtrusive and invisible manner.

and information ethics (IE) began in the 1980s, with the first systematic approaches in research and teachings being undertaken from different disciplines such as librarianship, business studies, and computer sciences. Questions of access to information, censorship, or copyright were at the forefront of library and information sciences. The securing of confidentiality, reliability, and quality were particularly important for business studies and the field of information processing services – hence, those sectors concerned with the secure functionality of application. Computer scientists were particularly concerned with problems related to human–computer interaction (e.g., problems of ascribing responsibility to actions with autonomous systems or limiting the legitimate use of computers). With the later use of IT as a medium of social interaction as well as human–machine interaction, realized through the Internet, video games, and virtual realities, IE advanced as a field of study in connection with media ethics and media philosophy. In part because of this association, new branches of research, such as bioinformation ethics or cyber ethics, were developed.

Characteristics of Information and Communication Technology Since the beginning of the ethical reflection of computer applications, a debate surrounding the uniqueness of computer ethics has come to the fore: Are there new,

Computer and Information Ethics

specifically ethical questions concerning computers, or are questions of intellectual property, reliability, or privacy only a new species of old moral issues? It is clear that computers unite a number of qualities that in a novel way deepen and shed new light on traditional themes of ethics. Even if these qualities are only different in degree to those of previous technologies, they still place different emphasis on the reflection of applied ethics under the backdrop of a new systematic framework, thereby justifying the formation of computer and information ethics as a unique part of applied ethics. In addition to characteristics that apply to technical productivity, such as storage, complexity, processing speed, and limitless exact reproduction capability, there are others that apply specifically to man–machine interaction: interactive usage and invisibility. Interactivity Interactivity is, from a number of perspectives, the key to the specific forms of using IT. Computers enable the most diverse applications; for this reason, the computer has been called a general-purpose machine and was described as logically malleable. The use of the computer through an interactive man–machine interface is a precondition for the specification of an application context by the user and the precondition for the adaptivity of the system in relation to the behavior of the user. Moreover, interactivity also affects the types of services and content, especially on the Internet. Interactivity allows for active involvement of individuals on the content level of the communication process. In personalized interactive worlds, network organization is designed to evolve from the individual user’s requirements, as is the case in Web 2.0 and user-generated content. These aspects illustrate the subjective side of media usage. This shows that the public character of electronic media usage is no longer at the forefront of debate but, rather, that the medialization of everyday activities in conjunction with subjective and individualized requirements and needs for usage is of central concern. Finally, interactivity is a decisive technical prerequisite for the implementation of virtual environments and experiences within the scope of an individual reality – for example, for taking part in virtual offices, computer games, or augmented realities. Invisibility Invisibility concerns a certain lack of transparency regarding the computer as an object and its applications. In applications of calm or pervasive computing, information technologies are mostly invisibly interwoven into the objective environment. In a fully developed information society, they are a natural part of ambient intelligence in network communication. In this way, users are not aware

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of the dynamics of IT and are not able to decide actively on its application. However, not only the computer is invisible. Due to autonomous devices, adaptability, the capacity of calculators, and cross-linking, its manner of utilizing our data to solve our tasks is also not transparent. For this reason, it is almost impossible to have absolute control over the activities of computers and over the types of abuse that may occur as a result of the use of computer systems, such as in surveillance or identity theft. In the latter case, the danger revolves around the invisibility of the actor in the anonymous communication platform of the Internet. Another type of invisibility, as a latent implication, is that software programs are never neutral. They are expressions of certain values – and they are selective. To this extent, they influence our actions in certain everyday IT applications and our sense of value. Hence, IT has attributes of every kind of electronic media without openly displaying this.

Ethical Foundations of Computer and Information Ethics The fundamental right to free expression is the normative basis of information and media ethics. The freedom of information sharing and the freedom of media are complementary to each other and their justification has the same origin. Beginning in Ancient Greece and leading up to the end of the twentieth century, information and media ethics were founded on two ideas: the freedom of speech and the freedom of the press. Now, with the advent of a networked world of electronic information, another element has gained in importance: the freedom of access. The practical application of civil rights and liberties is concerned with individual freedom of expression (self-realization), on the one hand, and political autonomy within the state (participation), on the other hand. Consequently, media and information freedom is an articulation of both the individual civil rights as a principle of human dignity and the democratic principle. Information and computer ethics draw on – besides freedom as value – a broad spectrum of values. Approaches relating to theories of the good life request a value-oriented integration of IT in society and in individual life. The political concept of a sustainable information society defines criteria such as health, security, environmental compatibility, education and knowledge, opportunities, or cultural and personal identity as essential requirements for humanly created technological progress. Different from information ethics, the fundamentals of computer ethics are more strongly grounded in the field of technological and professional ethics. It relates, on the one hand, to the computer as a technical artifact with specific morally relevant effects and, on the other hand,

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to the responsible activity of computing professionals. In this sense, there are a number of ethical codes that stem from the different national associations as a guide for the professional activities of individuals. For example, the code of ethics of the U.S. Association for Computing Machinery states, ‘‘When designing or implementing systems, computing professionals must attempt to ensure that the products of their efforts will be used in socially responsible ways, will meet social needs, and will avoid harmful effects to health and welfare.’’ Even if there are different emphases placed on different fields in computer ethics and information ethics, an ethical reflection of systems that deal with information is necessarily always linked to both fields, which although they are analytically separate cannot be distinguished in practice.

Methodological Approaches Ethically Justifiable Application of Information Technology This aspect of computer and information ethics is concerned with the question of whether or not computers are to be used in certain fields of possible application and also with specific problems of the use of computers in different subject matters. A large part of this field is concerned, for example, with the use of computers in health care. In this case, applications range from the logistic optimization of the placing and work of hospital staff to operations undertaken by computers, neuro-implants, and ambient assisted living for the elderly. Other important and ethically controversial fields concern the use of computers in the military (fighting robots) or E-learning-systems in education. In all these fields, the main question is: what can be delegated to the computer in order to achieve a better result? This question includes the following: Under what criteria is it feasible to speak of a better result? Is it a good result, for example, to be able to live for as long as possible in your own house with the help of a smart home, even if your life is in the same instance being monitored by a technical system? Important criteria for the use of computers include the consideration of security, problems of rationalization and of estrangement. Questions of this nature implicitly open the debate regarding the final telos of the use of technology, which cannot fundamentally be answered through technology itself but, rather, is the result of societal self-reflection and individual values. Ethically Justifiable Action within Information Technology This area of computer and information ethics is concerned with misuse, confidentiality, reliability, and norms in social interaction. In this field, as opposed to the ethical viability of the use of computers, the

applications of IT are concerned with moral actions on the Internet; that is, it concerns individual action that is made possible through IT and supported by it. IT processes assist with the completion of certain habitual everyday processes. In addition, they allow us to further the field of possible action. First, they increase the number of people we are able to contact through the World Wide Web. Second, they extend the sphere of our spatial actions in that they enable the use of intelligent household technologies from a distance through mobile devices. Third, they change the manner of action on a qualitative level, for example, through applications in virtual realities that again put into question the morality of norms of action. In this respect, how are actions that have no immediate relation to the real world to be viewed – for example, child abuse in Second Life? Is this concerned in this case with something fictional, which enjoys the same artistic freedom as an act of violence in a novel? Or is the development of a new identity in online chats to be seen as a lie? Fundamentally, ethical norms are also relevant with regard to forms of interaction in digital network communication. Online fraud or infringement of copyright are also punishable on the Internet, even though these are easier to exercise and more difficult to prove. Another problem for ethical evaluations are questions of responsibility in distributed and self-organized systems. Although reliability is a classical aim of professional ethics, it is difficult to find someone who can be made liable for damages. External Effects of Computer Usage IE applies not only to the use of IT applications but also to the consequences of the context of these specific types of uses of technologies. To this extent, we might call this approach a kind of impact study of IT. Special fields of interest are in this case the effects of the use of computers on social interaction, spatial structure, and the apperception of reality. The types of possible actions, and the perception of the freedom of activity, are determined through computers as tools of our action and factors of our perception – similar to how dissemination media such as the TV or generalized symbolic media such as money fundamentally influence social structures and individual consciousness. In this regard, IE reflects normative implications of a perception and formation of reality through activities of the media. For example, information technologies are closely intertwined with problems of spatial structure and the development of virtual and physical spaces through communication infrastructure. They make new forms of economic activity possible, direct the sale of goods, and create new modes of transportation. In social contexts, they create the form and content of

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communication. Different types of IT organize the inclusion and exclusion criteria for the decision-making processes relating to the relevance of perceptions and actions in an individual and socioeconomic context. This bias of communication becomes particularly clear in questions relating to the digital divide or the canonization (and noncanonization) of cultural heritage through digital media.

Interrelation with Other Disciplines IT as a typical cross-sectional technology enters into symbiotic relationships with other cross-sectional technologies, such as biotechnology or nanotechnology, and is based on a variety of technological ‘enablers,’ meaning that research in information ethics often requires the inclusion of other disciplines. In this sense, discussions on intelligent applications are likened to controversies over artificial intelligence, especially where they concern the question regarding which applications and to what extent the delegation of tasks to IT systems is to be allowed to take place. The transformation of a human being into a so-called cyborg through portable and implanted miniature computers is also a theme within medical ethics and bioethics. Representations of violence in the media, the protection of children and adolescents, and the role of public communication in politics are typical topics in media ethics and journalism ethics. Various research streams from sociology, cultural studies, and human geography investigate the relationship between media technology and cultural forms or the interdependency between the history of culture and the history of technology. For example, constructivist theories emphasize the participation of media in the emergence of nonintentional structures of reality. Discussion on pandemic technology and the homogenesis of cultures, technological determinism, and the significance of technological advancements points to classical works on the philosophy of technology. Lastly, the relationship to moral philosophy must be mentioned, which concerns the necessary connection of information ethical principles to fundamental principles of ethics.

Main Fields Privacy and Surveillance The concept of privacy concerns the exclusion of various persons or groups from knowing certain aspects or data from an individual’s life. The limitations or borders on what is private can be determined by law, conventionally, or otherwise can be ascribed simply by the individual. From an individual perspective, the protection of privacy is associated with the control of information, spaces, or

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property. Determining private spheres and data differs in the given sociohistorical and cultural context and, accordingly, the individual roles that are at play. The concept of privacy only applies in a realm of possible interactive relations – no one demands privacy on a deserted island. Liberal social orders place high significance on the protection of the private sphere, especially because the safeguarding of a private sphere is a necessary precondition for the protection of the freedom of action. Only in a realm that is extensively protected from heteronymous conditions can that spontaneity and unbiased behavior be cultivated, which is tied to the concept of freedom of action and self-fulfillment. Three different forms of privacy are commonly distinguished: (1) decisional privacy, which refers to the level of freedom of decision; (2) local privacy, which has to do with the protection of living quarters and of location data (but also with the safeguarding of corporal integrity); and (3) informational privacy, which describes the protection and control of personrelated information. The aforementioned characteristics of computers, such as storage, integration, adaptability, autonomy, and the invisibility of devices, outline the technical potential for a constraint of data privacy. This potential increases through the systematic applications of context-aware and ubiquitous computing. These aspects play a special role regarding the scope of the private sphere. The use of these applications demands the preparation of personal data and many applications aim at the protection of everyday activities and, through this, of the informationtechnological permeation of the private sphere. In addition, our bodily existence is at stake when we consider the implications of neuroimplantations or IT for medical devices. The realization of data privacy seems hardly possible given the flood of personal data, whose collection and transmission are indispensable for the functionality of applications. Moreover, the maintenance of social relationship networks is at the center of several considerations in a networked world. However, precisely this connection between interactive user possibilities and the organization of relationship networks produces new problems with respect to informational privacy. The protection of data privacy in electronic databases and on the Internet is placed in jeopardy in five different respects: 1. Reliability: In an open communication infrastructure, the trustworthiness and competence of data collectors cannot be ensured. 2. Ungovernable diffusion: If data are in an external database system or on the Internet, it is possible to gain control over their further use. On the one hand, there is a threat for data to be sold to shady vendors; on the other hand, once

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information has been propagated in many different files, it is difficult to eliminate or even to modify data. 3. Data mining: There is a high potential for combining data in systematic ways to create detailed, composite profiles of individuals. 4. Identity theft: Foreign digital identities can be misused, for example, for credit card fraud or even to damage personal identity by using it for wrong or denunciatory websites. 5. Malicious attacks: Data management systems are predominantly ineffectively defended from criminal hacking or aggression in information warfare. As an important aspect of data privacy, one line of research in information ethics is concerned with surveillance. In this respect, the concept of a Panopticon plays a major role. The Panopticon represents the thought that in societies in which the media is ever-present there is a high potential for a one-sided, as well as reciprocal, process of monitoring. Behavior can change as a result of being watched, and self-discipline can be influenced as well. Jeremy Bentham (1787) first introduced this notion in his ideal construction of star-shaped prison structure, the Panopticon, where the feeling of being monitored affected self-discipline. In the Panopticon, prison guards are positioned such that they can observe the prisoners at all times but cannot themselves be seen by the prisoners. The feeling of being constantly watched leads to a behavioral conformity with the rules while simultaneously reducing the efforts of a monitoring process that must take place regardless. The integration of sensors, mobile computing, and Internet connections in our everyday lives provides our surroundings, at least in our psychological perception, with the character of a social counterpart that confronts us as a partner, an assistant, but also as a spy. In the further development of network communications as a so-called Internet of Things, this effect of ubiquitous observability becomes something positive and is considered acceptable as a ubiquitous assistant. Intelligent environments appear as a virtual reference group according to which the individual models his or her behavior. With regard to the freedom of decision or, rather, decisional privacy, this means that decisions are increasingly made as a reflection on the reaction to a technological system. Possibilities of an adequate protection of privacy lie deeply rooted in the responsible action of every individual and in institutional law on data rights management. Principles such as the collection limitation principle state, among other things, that gathering data from private persons should always be limited to the minimum or entirely avoided if there is no adequate reason for collecting. Moreover, the purpose specification principle specifies that data should only be collected in connection with certain purposes and with the individual’s consent.

In gathering, using, and processing personal data, it is necessary to obtain the individual’s consent. The transparency of the system is a precondition for an estimation of the consequences of consent. The aim of transparency is to increase user autonomy through the enhancement of user competence. The demand for transparency refers to the reputation and authenticity of services, as well as to the transparency of the information gathered through data streams rather than solely through single data. Finally, we need ensured options for not having to participate in the use of comprehensive computer systems but, nevertheless, not being closed off from relevant service facilities and information. This includes not always being available for the employer or friends through mobile phone and location-based services. In a free society, there have to be alternatives available for a technology that will always harbor a risk of data misuse and unreliability for an unspecified period of time. Digital Divide The concept of a digital divide concerns a disproportionate relation with regard to access to IT and the services, communication, and information that are connected with it. Of particular importance in this regard is the vision of a worldwide information society – in particular as it has been aspired to by the United Nations. The success of the information society depends on its ability to realize the equal participation of all nations. This is one of the fundamental differences between the information society and the industrial society because the latter is functionally based on worldwide inequality in economic and societal development. The concept of a digital divide also implies that we should seek an understanding of the power structures that are in place and the way in which the information rich relate to the information poor both on a global level and within specific societies – for example, in relation to the use of IT in educated and uneducated sectors of society or in regard to gender differences. As opposed to the concept of difference, the concept of a divide does not refer to the relation between equally valued phenomena. Instead, it relates to the unethical and unjustifiable exclusion of different groups with regard to information that leads to participation and creation. Besides basic goods such as foods, housing, or security, information is an elementary good, which in many cases is the stipulation for the possibility of an improvement in primary health care or lays the seeds for political development. To this extent, because of the demands for a just distribution of information, as well as for general access to IT appliances and information, technological infrastructure is an important part of an emancipatory information ethic. The Internet does not in this case only play a role as a medium for information; it is also equally as important as

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an organizational form in itself. The Internet is an open forum for the archiving, distribution, and interaction of information, and it supports in a manner that was not previously available the development of network structures that can be seen as beneficial in a variety of different ways. Networks as socially directing principles are of value particularly as an alternative to hierarchical and elitist state or market-dependent directionism. In this regard, global governance has developed as a newly defined cooperative network of nongovernmental organizations (as opposed to the traditional concept of government) and has become a key theme in political discussion. Questions regarding the ownership of software, data, and knowledge and also copyright play a major role to reduce the digital divide. In this respect, there are stipulations that demand the abolishment of copyright, which stand in contrast to the right of the individual for intellectual property. Another problem does not lie in the allocation of given information but, rather, in a justifiable representation of content on the Internet. Representation on the Internet is dependent on computer literacy and literacy as such, as well as on financial and technical resources. In political and cultural organizations, processes geared toward the development of corporate opinion, and indeed the application of such opinions, are a demanding stipulation for the active use of the Internet. Without the plurality of content and without a focus on the local identity of Internet users, the digital divide will remain a digital colonialism on the content level, even if it is overcome on the technical level. The Public Sphere, Content, and Online Journalism This element of IE deals with claims of civil society, especially the freedom and quality of information. Due to qualities such as interactivity, the possibility of worldwide communication, and the low entrance level requirements to the Internet and the World Wide Web, the Internet was welcomed in the 1990s as a democratic medium of considerable significance. It was believed that the general public would be more actively involved in society and the discovery of new sources of information, independent of the mainstream mass media, and that such freedom would bring about more transparency in politics and administrative processes. This field of IE is therefore mainly concerned with digital IT and its effects on the development of opinion and democratic self-organization. In democratic constitutional states, communication media play an important role in the establishment of the public sphere. From a democratic theoretical perspective, the public sphere is a generally accessible space for discussion on the criticism and control of governmental power. At the same time, the public sphere plays an important role

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in the discovery and expression of social and moral norms, as well as in the construction of reality. In this regard, particular care has to be taken in journalistic ethics with regard to the correctness, neutrality, and completeness of reporting on the truth. The contracts and values of public communication as formulated by journalism ethics are specifically related to these values of quality, but they are also relevant in the formation of opinion, the advancement of freedom, and the protection of the private sphere. Online, increasingly more individuals are taking up journalistic activities, whereas in the press and in broadcasting the responsibility of the media for truth was handled institutionally and through editorial controls. Interactivity is the key to an individualization of the media and subsequently the impetus for noninstitutionally anchored individual media productions. The desire for a critically examined public sphere relating to information and reports that are truthfully reproduced is not achieved in this case through careful monitoring of institutions but, rather, through institutional independence. Weblogs and other forms of microcontent offer a plurality of information and offer a large service for source texts. Manifestos, press releases, declarations, statistics, and so forth can be viewed via the Internet with little effort. The danger of a normatively derived preselection of information through journalistic representations is thereby theoretically banished. Nevertheless, online media present the field of journalism with new challenges. Fundamentally, one has to differentiate in this respect between online work of professional editorialship (that often has its origin in the offline field) and journalistically active individuals (with or without a journalist education). For the latter, the individualized forms of distribution on the Internet and the perceptibility through search engines are a welcome development. The possibility of active participation in general communication puts individuals in the context of a hitherto institutionally entrenched canon of values of acting with public media. Without institutions and the participation in a journalistic professional ethos and editorial controls, Internet users who participate in journalism are also required to take responsibility for the quality of their reports. Thoroughness and the responsibility toward integrity can only be requested in this sense. With regard to the quality of public communication and the individual formulation of opinion, the Internet is a self-regulating system that demands higher competencies from the users than does classical mass media. The quality controls are essentially left to the commentaries of other Internet users. Other demands on journalistic ethics through online media include the focus on otherwise typical problems. This applies, above all, to the quality of research. Online journalism knows nothing of an editorial deadline, but instead there is a constant demand for updating

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information and therefore permanent time pressure, which even more than in offline media tempts journalists to use the Internet as a singular reference medium. This leads to the notion of plagiarizing from other online sources. Specific problems of online journalism include hidden investigations of social networks and Internet forums that might be considered ethically questionable. Even though social networks and forums are to be categorized as public communication, those who participate in these consider them as private spheres of communication. A further typical problem concerns the acceptable use of hyperlinks and the question of responsibility for the reliability of the information and whether it is up-to-date. There are also structural problems with the Internet regarding a normative concept of the public realm. Unlike in the case of traditional mass media, the plurality of content depends on the active involvement of users in using and providing information. This leads, on the one hand, to a growing plurality of information and, on the other hand, to individualized media usage amounting to specialization and particularization of reception and production, whereby the number of people accessing the same content declines. Yet the Internet offers potential for a political and public form of communication that can be more independent and democratic than that of the traditional mass media. However, this potential is at odds with a tendency of fragmentation and particularization common in net communication. In addition, there is the technical potential for realizing the full possibility of expressing opinions, but most of the time this is freedom of expression in the absence of a properly discerning target group. In this context, we might speak of an inflationary superpluralism of content in interactive media. Another problem is the trivialization or privatization of public communication. In a medium with an enormous capacity for saving information that has the ability to accompany everyday life entirely, private contents significantly gain in importance. The identification of and participation in public communication as such dealing with public welfare, is to be decided by those who are already involved in offline political structures.

reciprocal recognition of moral subjects. Autonomy also plays an important role in ascribing responsibility to actors. A self-determined decision depends on the knowledge, will, and judgment of the subject making the decision. Only when a decision is made on an action autonomously and with knowledge can it be ascribed to the person with (full personal) responsibility. In connection with information technologies, autonomy signifies different categories of self-monitoring and activity. These can be context-orientated processes (e.g., a robot grasps an object) or a system can execute complex tasks without further operations being needed (e.g., to steer a plane). The more a human being allows a technical system to carry out actions autonomously, the more strongly the question is posed regarding responsibility, especially when it concerns complex, distributed systems. Is the user, the developer, the institution, or even the computer responsible for the consequences that result from an autonomous system? Due to the complexity of the situation, in some cases the suggestion is put forward that computers and their activities be insured in order to avoid appeals for damages. Other positions taken on this issue also place the computer as actor into the center of the debate and prognosticate the development of an independent intentionality of autonomous systems, in the manner in which they are already depicted in many science fiction genres. A computer’s own autonomy would make it barely different from the human being with regard to its decision-making process and provokes the notion that computers should be held responsible for their moral capacity for action. Conversely, the problem arises as to whether computers can themselves be recognized and safeguarded as objects of moral action. In this instance, the question must be raised as to whether there are objective criteria for the differentiation between contemplative and value decisions made by people and the calculated decisions of processors – whether an intentionality of that type could ever be proven. On the other hand, we might ask: can we on moral grounds desire for computers and people to be measured on the same scale? Virtual Reality

Autonomous Systems The concept of an autonomous system is often named alongside that of robotics. Autonomous systems are nevertheless also apparent in diverse virtual systems that are able to organize themselves with certain purposes in view (e.g., software agents or bots). They are a functional principle of the Internet and stand in relation to the concept of artificial intelligence. Interesting from a philosophical and ethical standpoint is the attribution of autonomy to mechanical action. In classical ethics, in the Kantian tradition, autonomy is a precondition for the

The concept of virtual reality relates in the context of media communication to an experiential space that is not represented as objectively graspable but nevertheless brings about effects in our reality. ‘Virtual’ indicates something that is not actually real but that nevertheless functions as if it were real. One can in this respect speak of a reality of the virtual. Rather than placing virtual reality and real life opposite each other, it is more justified to talk of the virtual reality of the Internet as a part of the various social constructions of reality. From the perspective of ethics as a practical philosophy of action it is not possible

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to exclude certain types of action from moral discourse as being entirely virtual. IT introduces various forms of virtuality. There are virtual libraries, virtual art, virtual surgeries, virtual power plants, or mixed forms, such as augmented realities, in which, for example, through special glasses virtual images can be created. In different applications, the degree of the ontological distance to the corresponding real-world phenomena is very different. Social institutions such as stock markets are only marginally different from their physical correspondent (e.g., there are no buildings and no immediate bodily presence of the seller). This concerns a type of social practice that is not dependent on a physical medium. It is constituted in terms of symbolic interactions and speech acts that – in this defined context – can be transferred in virtual communication without losing their validity and the norms of interaction. Simulations, on the other hand, have a different ontological status and are a significant part of virtual realities. Simulations are used for entirely different purposes, such as playing, training (airplane simulator), art, prognosis, or design. Simulations are imitations of real objects and occurrences, but they can also be fictitious or perhaps, so to speak, impossible worlds. Yet what are the ethical problems that are brought about through virtual realities? In the field of ethics of computing professionals, questions of quality and suitability of simulation are in the foreground. A lack of precision and responsibility can lead to damaging effects in the real world, especially in the field of training and prognosis through simulations. Other criticisms of virtual reality are similar to the classical criticisms of fictional literature and entertainment since the printing of books: The escape from reality and the loss of a feeling for reality are among those things mentioned, as well as the lack of contact to others in the real world, the potential for addiction, or imitation, for example, in acts of violence, brutalization, or overstimulation. Many of these dangers are heightened through virtual realities which have considerable suggestive power that is especially virulent due to the opportunity for us to act as ourselves in these realities. Contrary to this, there are of course the positive considerations concerning the effects of virtual realities, such as the development of experience and knowledge, creativity, and entertainment. Genuinely new ethical problems result in virtual worlds through the interaction of virtual identities with each other. Action in gaming platforms or Internet chats is not in itself virtual action but, rather, real action in a virtual environment. Although the large majority of identities in Internet communication are pseudonyms or are developed as completely new identities, a virtual identity indirectly refers to the real person. For example, in virtual communication platforms such as chat rooms, the use of pseudonym identities can become problematic. On the

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one hand, the use of pseudonyms serves the purpose of protecting data privacy and enabling a greater freedom of expression – out with the real world and the constraint of conventional bonds and ties. On the other hand, it can leave the person who is being communicated with in the dark as to the truth of statements and therefore opens the possibility for the false development of trust through representing a fake identity. Bearing this in mind, discussions on the use of the Internet as a forum are to be considered critically in an ethics of discourse. Other problems arise relating to the moral behavior of participants in virtual games that simulate reality. As long as the difference between game and sincerity is maintained – that is, between appearance and being – the ‘immoral’ behavior, but that which conforms with the rules, is unproblematic, such as outwitting or eliminating an opponent. However, as soon as there are no binding rules of play and the difference between the virtual player and real identity becomes intermingled, as for example in Second Life, the participants find themselves in a normative gray zone, which leads to misunderstanding, the crossing of established borders, and even criminal assault.

See also: Computer Security; Electronic Surveillance; Global Access to Knowledge; Internet, Regulation and Censorship; Journalism Ethics; Open Source Software; Population Health Data; Privacy, Ethics of; Property Rights; Virtual Communities, Ethics of.

Further Reading Bentham J (1995 [1787]). Panopticon. In: Bozovic M (ed.) The Panopticon Writings, pp 29–95. London: Verso. Capurro R (2006) Toward an ontological foundation of information ethics. Ethics and Information Technology 8(4): 157–186. Debatin B (2007) The Internet as a new platform for expressing opinions and as a new public sphere. In: Donsbach W and Traugott MW (eds.) Handbook of Public Opinion Research, pp. 64–72. London: Sage. Debray R (2004) Transmitting Culture. New York: University of Columbia Press. Floridi L (ed.) (2004) The Blackwell Guide to the Philosophy of Computing and Information. Oxford: Blackwell. Frohmann B (2000) Cyber ethics: Bodies or bytes? International Information & Library Review 32: 423–435. Gotterbarn D, Miller K, and Rogerson S (1997) Software engineering code of ethics. Information Society 40(11): 110–118. Hauptman R (1988) Ethical Challenges in Librarianship. Phoenix, AZ: Oryx Press. Himma KE and Tavani HT (eds.) (2008) The Handbook of Information and Computer Ethics. Hoboken, NJ: Wiley. Introna L (2007) Making sense of ICT, new media and ethics. In: Mansell R, Avgerou C, Quah D, and Silverstone R (eds.) The Oxford Handbook of Information and Communication Technologies, pp. 314–333. Oxford: Oxford University Press. Johnson D (2001). Computer Ethics, 3rd edn. Upper Saddle River, NJ: Prentice-Hall. McLuhan M (2003 [1964]). Understanding Media: The Extensions of Man. Cambridge, MA: MIT Press.

546 Computer and Information Ethics Nissenbaum H (2005) Hackers and the contested ontology of cyberspace. In: Cavalier R (ed.) The Impact of the Internet on Our Moral Lives, pp. 139–160. Albany: State University of New York Press. Ro¨ssler B (2005) The Value of Privacy. Cambridge, UK: Polity Press. Tavani H and Moor J (2001) Privacy protection, control of information, and privacy-enhancing technologies. Computers and Society 31(1): 6–11.

Organisation for Economic Co-operation and Development, ‘‘OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data,’’ 1980. http://www.itu.int/wsis/index.html – World Summit on the Information Society.

Biographical Sketch Relevant Websites http://www.acm.org/about/code-of-ethics – Association for Computing Machinery, ‘‘Code of Ethics,’’ 1992. http://icie.zkm.de – International Center for Information Ethics. http://codev2.cc – Lawrence Lessig, ‘‘Code v2,’’ 2006. http://www.cs.bgsu.edu/maner/ethicomp95/keynote3.pdf – Maner W (1996) Unique ethical problems in information technology. Science and Engineering Ethics 2(2): 137–154. http://www.media-accountability.org – Media Accountability Systems. http://www.southernct.edu/organizations/rccs/resources/ teaching/teaching_mono/moor/moor_definition.html – Moor JH (1985) What is computer ethics? First published in Bynum TW (ed.) Computers & Ethics [special issue of Metaphilosophy, 266–275]. http://www.oecd.org/document/18/ 0,2340,en_2649_34255_1815186_1_1_1_1,00.html –

Jessica Heesen studied philosophy, German literature, media studies, and theology in Cologne and Tu¨bingen, Germany. She obtained her Ph.D. in Philosophy summa cum laude from the University of Stuttgart with a dissertation on media ethics and Internet communication. From 2002 to 2008, she was Assistant Professor at the University of Stuttgart, Institute for Philosophy, and a member of the research staff of the DFG– Centre of Excellence 627 Nexus (spatial world models for mobile context-aware applications). She is Assistant Professor at the Centre for Basic Studies in Ethics and Philosophy of the University of Freiburg. She holds various teaching positions and lectures at the universities of Stuttgart, Freiburg, Karlsruhe, the universities of applied sciences Heilbronn and Augsburg, and the Ludwigsburg University of Education in the field of practical philosophy. Her current research is on information and media ethics, cultural studies, and philosophy of technology.

Computer Security M Maliapen, University of Sydney, Sydney, NSW, Australia and University of Central Lancashire, Preston, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Biomarker In genetics, a biomarker (identified as genetic marker) is a fragment of DNA sequence that causes disease or is associated with susceptibility to disease. Covariate A patient covariate is a secondary variable such as age, gender, or race that can affect the relationship between the dependent variable and other independent variables of primary interest. Cookie A cookie is used for authenticating, session tracking (state maintenance), and remembering specific information about users, such as site and web page preferences, when users access any website. Cross-scripting A type of computer security vulnerability typically found in web applications that allows code injection by malicious web users into the web pages viewed by other users. Curation The selection, preservation, maintenance, and collection and archiving of digital content and objects to prevent obsolescence. Denial of service An attempt to make a computer unavailable to its intended users by saturating the target (victim) machine with external communications requests, such that it cannot respond to legitimate traffic and is rendered ineffective. DOI A persistent, semantically interoperable unique identifier for digital assets. It uses a managed registry and can be found like a URL on the web. Dublin core The metadata element set that is a standard for cross-domain information resource description. Firewall A gateway that limits access between networks in accordance with local security policy. Genotype The genotype is the genetic constitution of a cell, an organism, or an individual (i.e., the specific allele

Introduction The use of information technology for genomics and proteomics research in academia has encouraged colla­ boration and the sharing of research knowledge through publicly available databases. The use of creative com­ mons licenses and open source software has made these software tools more widely available in the research

makeup of the individual), usually with reference to specific characteristics under consideration. Honeypot A host (computer) that is designed to collect data on suspicious activity and has no authorized users other than its administrators. LSID A Life Sciences Identifier is a unique identifier for some data, and the LSID protocol specifies a standard way to locate the data (as well as a standard way of describing that data). Session identifier A session ID or session token is a piece of data that is used in network communications to identify a web browser session and the host application on the server so that transactions between them are secure and private. Script kiddies A term used to describe juveniles who use scripts or programs developed by others to attack computer systems and networks. Spyware Software that is secretly or surreptitiously installed into an information system to gather information on individuals or organizations without their knowledge; a type of malicious code. Therapeutics The care provided to improve the use of medical procedures or applications to relieve illness or injury. Trojan horse A term used to describe malware that appears, to the user, to perform a desirable function but, in fact, facilitates unauthorized access to the user’s computer. URL A string of characters used to identify or name a resource on the Internet. Such identification enables interaction with representations of the identified resource over the Internet. Worm A self-replicating, self-propagating, self-contained program that uses networking mechanisms to spread itself.

community. The collaborative use of investigation data in similar phenotypic studies across multiple sites has paved the way for increased sizes in subject cohorts for scientific studies. It has resulted in abundant volumes of experimental and clinical data being made available for computational and statistical analysis. When the early candidate notification pipeline increases, so do the chances for potential new biomarker

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discoveries. The application of integrated research ana­ lysis and collaboration across multiple distributed global research communities will be the multiplying factor that will create such synergies and reduce the lead time for drug discoveries and clinical therapeutics. However, these systems are operating in an Internet environment fraught with danger, and the evidence shows that ‘open genomics’ servers and public databases are at high risk of security attacks. However, the manner by which academia addresses security issues, partly due to its dependence on research grant funding, results in lapses in security implementa­ tion. The reliance on disaster recovery systems to archive academia’s digital content does not guarantee restorabil­ ity to original state. The vast majority of data and metadata about scientific research is now primarily being stored digitally and is searchable. Digital data is transient, and because information networks allow data to be transmitted and distributed at a much faster rate, this in turn compounds the problems for versioning and curation of digital content.

Exposure to Security Risks Security experts often use ‘honeypots’ – computers and networks specifically set up to be attacked in order to collect information on the frequency and types of security attacks. One experiment involved monitoring six honeypot computers – set up to see what kind of malicious traffic they would attract – for 2 weeks. The honeypot experiment was shut down once attackers, predominantly ‘script kiddies,’ managed to gain entry to the system. Excluded in these tests were security attacks via malicious spyware that was transmitted through users visiting infected or contagious websites, or those that were spread through email attachments that carried malicious pay­ loads. However, the experiment results vividly illustrate how automated cyber attacks have come to saturate the Internet with malicious programs designed to take the quickest route to break into PCs through security weak­ nesses in the operating systems. Test results from these experiments underscore the value of keeping up-to-date with security patches and virus updates and using a personal firewall. The evidence shows that PC firewalls, which restrict online access to the internals of the PC operating system, represent a crucial first line of defense against cyber intruders. It is estimated that 67% of consumers do not use a firewall, according to the National Cyber Security Alliance. In addition to validating these protection measures (options that are regrettably often neglected), the most interesting finding of this study is the prevalence and frequency of attacks. A researcher’s workstation is almost

guaranteed to be the target of incessant and recurrent attacks within minutes of being connected to the Internet.

Researcher’s Responsibility Study participants voluntarily consent to study investiga­ tors to provide specimens, which include corollary demographic and risk factor information. In general, a researcher knows that the subject will generally not con­ sent or imply consent to the distribution of data in a way that identifies the study participant to any other party. Dissemination or revelation of results beyond the explicit purposes for which specimens were collected intrudes on subjects’ privacy. Studies in which biological specimens and DNA are banked for future use may require informed consent about future use. The key question here is whether specimens collected for one study could be used for different research purposes, and what responsi­ bility exists for conveying results back to subjects by other researchers. Investigators who rely on enterprise web-enabled por­ tals to centralize the collection of specimen, clinical, and demographic data from multiple sites should act with due diligence to ensure that these systems are protected from Internet security hazards and that the identity of subjects cannot be deduced from the results of specimen analysis. A related matter is the ownership of residual or rem­ nant specimens. The FDA has established a policy permitting the use of remnant samples for in vitro diag­ nostic (IVD) studies. The policy allows researchers to use stored samples, provided that such specimens are ‘‘rem­ nants of specimens collected for routine care or analysis that would have been discarded’’; the specimens cannot be individually identified by the sponsor or investigator (meaning that de-identified specimens can be used for other research); the individuals caring for the patients do not conduct the investigation; and any clinical data accompanying the specimens do not allow the source of the specimen to be identified. It is also required that the de-identification be irreversible.

Obligations to Study Subjects and Patients The high rate of false positives makes the interpretation of biomarker data difficult at best. For example, in studies evaluating relationships between risk factors and surro­ gate end points or markers of early biologic effect, the biomarkers may not be indicators of risk per se but of exposure. The noise present in the gene expression signal data often tends to mask the relationships in the data, which are limited by small sample sizes.

Computer Security

Research participants may want or have a right to these results and an interpretation of them. Interpretation of these results is the responsibility of research investigators. Even though participants are told that tests may be purely for research purposes and have no clinical value, they still ultimately want to know if they are ‘all right.’ Investigators and practitioners face ethical issues in interpreting tests and deciding when biomarkers indicate that early warning steps should be taken. The investigator needs to sort out these changes against a background of extensive intra- and interindividual variability in biomarkers and account for the margin of error in such predictions. As such results are usually stored in databases by researchers, the need for constant surveillance of compu­ ter networks that store, share, and distribute biomarker and specimen analysis data that is re-identifiable for clin­ ical case care and management is essential given the challenges such networks face with intrusion manage­ ment. The next section discusses how such Internet attacks need to be managed. Any use of personal portable storage devices by researchers to transport and extract such sensitive research data should be tracked and audited. The results of studies of biomarkers of susceptibility can lead to findings that can be misunderstood or abused. The principle of disambiguation applies to genetic infor­ mation, as it can be misinterpreted. The existence of a genotype predisposes the beholder to the risk of the dis­ ease, but there is no quantification of the risk and it can be interpreted as if it were a diagnosis rather than a risk factor. Assume that as part of a private healthcare insurance enrollment process, the insurer finds out that you had participated in a biomarker research study 5 years ago and that your de-identified genetic information has been released into a publicly accessible database without the knowledge of the research investigator. The insurer uses your personal biodata and the responses in the health insurance disclosure statement you provided and matches these to the public domain data. The insurer is then able to deduce that you belonged to the cohort of study participants who had an increased risk of early-onset chronic gastritis and hence are highly susceptible to gastric cancer. As a consequence of these inadvertent discoveries, the insurer requires you to com­ plete early screening and preventive measures before being considered for health insurance coverage, even though the biomarker study results are inconclusive. Such consequences pose a great embarrassment for all parties involved, given that the data found its way into the public domain. While technology has become the enabler of such complex biomarker analysis, it is also the bane that results in the unintended exposure of personal and cor­ porate research systems to the security threats and dangers lurking on the Internet.

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Understanding the Types of Security Risks SQL Injection Threat Biomarker and clinical data query through web portals is a favourite among researchers for the convenient access from any location it provides. Typically, user authentica­ tion on a web portal requires the researcher to enter a name and password into the text boxes provided. These are then inserted into a Structured Query Language (SQL) query. If the values entered are found as expected, the researcher is allowed access; if not, access is denied. However, most web forms have no mechanisms in place to block input other than names and passwords. Unless such precautions are taken, an attacker can use the input boxes to send their own request to the database, called SQL injection, which could allow them to download the entire database, interact with it in other illicit ways, or even delete the database. SQL injection is a type of security exploit in which the attacker adds SQL code to a web form input box to gain access to resources or make changes to data. An SQL query is a request for some action to be performed on a database. The risk of SQL injection exploits is on the rise because of automated tools. In the past, the danger was somewhat limited because an exploit had to be carried out manually: The attacker had to actually type the SQL statement into a text box. However, automated SQL injection programs are now available, and as a result, both the likelihood and the potential damage of an exploit have increased enormously. This technology gives attack­ ers the ability to pick up a freeware tool, target a website, and automatically download a database without any knowledge whatsoever. Further, the automation of SQL injection gives rise to the very real possibility of an SQL injection worm. It is estimated that about 60% of web applications that use dynamic content are vulnerable to SQL injection. According to security experts, the reason that SQL injec­ tion and many other exploits, such as cross-site scripting, are possible is that security is not sufficiently emphasized in development. To protect the integrity of biomarker and open genomics research sites and applications, it is recommended that simple precautionary measures are used during development, such as controlling the types and numbers of characters accepted by input boxes.

Buffer Overflow Attacks The most common kind of denial of service (DoS) attack is simply to send more traffic to a network address than the data buffers were designed for. The attacker may be aware that the target system has a weakness that can be

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exploited, or the attacker may simply try the attack in case it might work. For example, suppose a program is waiting for a researcher to enter his or her name. Rather than enter the name, the hacker would enter an executable com­ mand that exceeds the stack size. The command is usually something short. In a Linux environment, for instance, the command is typically EXEC (‘‘sh’’), which tells the system to open a command prompt window, known as a root shell in Linux. However, overflowing the buffer with an executable command does not mean that the command will be exe­ cuted. The attacker must then specify a return address that points to the malicious command. The program partially crashes because the stack overflowed. It then tries to recover by going to the return address, but the return address has been changed to point to the command specified by the hacker. It implies that the hacker knows the address where the malicious command will reside. The malicious command is often padded on both sides by NOP (no operation performed) instructions, a type of pointer, to overcome the need for the actual address. Padding on both sides is a technique used when the exact memory range is unknown. Therefore, if the address the hacker specifies falls anywhere within the padding, the malicious command will be executed. Researchers can often be unaware of such silent attacks to their systems happening in the background. As a first line of defense to prevent such incidents, research systems should deploy only operating systems capable of using nonexecutable stack buffers, such as Windows XP 32- or 64-bit. The use of strongly typed programming languages that disallow direct memory access is also recommended. It is important to have all system inputs validated to prevent unexpected data, data that are too long or are the wrong data type or contain ‘junk’ characters, from being processed. Other Denial-of-Service Attacks A SYN attack occurs when a session is initiated between the Transmission Control Protocol (TCP) client and server in a network. The attacker targets the small buffer space that exists to handle the usually rapid ‘handshaking’ exchange of messages that sets up the session. The ses­ sion-establishing packets include a SYN field that identifies the sequence in the message exchange. An attacker can send a number of connection requests very rapidly and then fail to respond to the reply. This leaves the first packet in the buffer so that other, legitimate connection requests cannot be accommodated. Although the packet in the buffer is dropped after a certain period of time without a reply, the effect of many of these bogus connection requests is to make it difficult for legitimate requests for a session to become established. In general,

this problem depends on the operating system providing correct settings, or allowing the network administrator to tune the size of the buffer and the timeout period. A teardrop attack, like the SYN attack, is a denial-of­ service attack that exploits the way that Internet Protocol (IP) requires a packet that is too large for the next router to handle to be divided into fragments. The fragment packet identifies an offset to the beginning of the first packet that enables the entire packet to be reassembled by the receiving system. In the teardrop attack, the attacker’s IP puts a confusing offset value in the second or later fragment. If the receiving operating system does not have a plan for this situation, it can cause the system to crash. In another type of intrusion called the Smurf attack, the perpetrator sends an IP ping request to a receiving site. The ping packet specifies that it be broadcast to a number of hosts within the receiving site’s local network. The packet also indicates that the request is from another site, the target site that is to receive the denial of service, essentially spoofing the return address. The result is numerous ping replies flooding the spoofed host. If the flood is great enough, the spoofed host will no longer be able to receive or distinguish real inbound traffic. Computer viruses, worms, Trojan horses, and spyware replicate across a network in various ways, which can be viewed as denial-of-service attacks in which the victim is not usually specifically targeted, but simply a host unlucky enough to get the virus. Depending on the parti­ cular virus, the denial of service can range from hardly noticeable to disastrous. State-Based Security Attacks Session management is a necessity for research web appli­ cations, and if done correctly, it can be an effective protection mechanism against a number of attacks, including session hijacking. A unique session identifier is used to authenticate each user from all others. If the session ID is compromised, attackers can impersonate the user. The systems design practice of ensuring that the sequence of session identification numbers issued by the stateful session management system is unpredictable should be mandatory. The concept of using cookies to store session values is more prevalent now, as these are more difficult to modify than hidden fields or Common Gateway Interface (CGI) parameters. Cookies can be protected by setting a secure flag such that unencrypted packets cannot be ‘sniffed’ on the network. The information technology (IT) adminis­ tration for research should restrict the cookies to a particular site or even a section of a site (by using the path attribute of the cookie), or set them to expire auto­ matically, as it reduces the vulnerability of attack. Researchers should not be allowed to page back after login page errors, and the login session should be expired.

Computer Security

Some session management systems allow users to reacti­ vate their sessions if they have a valid session ID that has expired. There is no justification for such a security risk. By allowing an existing session to be reactivated, a new session can be created with a different session identifier but the same stored state. If an attacker discovers that session identifiers are being reused, a number of valid ones can be accumulated through monitoring and a ses­ sion fixation attack can be attempted. There will be some inconveniences to the researcher, but they are far out­ weighed by the security safeguard the prohibition of expired session identifiers reuse offers. Time-out session identifiers should be used so that reuse of session identifiers after a predetermined period of time is not possible. Storing session variables on the server allows the research web applications to keep track of what sessions have been created and when. If no one has used a session for a specified period (based on user activity or a predefined time), then as a safety rule it should be expired. This reduces the time window for an opportunis­ tic attacker to obtain valid session identifiers by brute force. The practice of inculcating researchers to clear the cache folders after each of their sessions is the best possi­ ble housekeeping practice on shared network terminals. When the researcher logs out from a clinical or biomarker database this housekeeping action should invalidate iden­ tification of session numbers from both the client and the server. Such a practice should clear all other sessions that multiple researchers may have initiated but failed to log out of because of forgetfulness (browsing away from the site) or some other issue that had interrupted the researchers’ attention. Web browsers allow multiple clients to browse with the same session ID through the use of the HTTP referrer field. Attackers can use programs to track the footprints of users through the site that provides the browsing paths that users follow; hence it is possible to discover when two or more people are using the same identifier. The basic idea is to know the correct page sequence of the site. If a request for a page that should not be accessible is received, then either a URL jumping attack is in progress, or another user is using the same session identifier and is out of step with the original user. In both cases, the session identifier should be invalidated. Session cookies should be encrypted and only be sent over secure socket layered (SSL) channels to prevent them from being sniffed in transit over the network. The conduct of open genomics research implies the sharing of data between authorized authenticated researchers only and should prohibit the transmission of de-identified genomic or covariate data in clear text across the network. The traceability of session identifiers allows the indirect referencing of researchers’ information; there is a need to protect their privacy as well. The most effective

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protection available on web browsers is to use HTTPS to encrypt all cookies and session identifiers. Even with all these precautions, an attacker can dis­ cover a current session ID by ‘stealing’ a cookie through cross-site scripting; hence encryption over the network is a crucial facet in the overall security management strat­ egy for individual researchers connecting over the web.

Sharing of Biomarker Data for Research The ability to use new variants of assays on stored speci­ mens long after the original patient consent was obtained makes biomarker research unique. Any new hypothesis about biomarkers can often be tested using specimens from previous studies if the covariate criteria fit. As indi­ cated previously, the management of specimen remnants makes it possible for study investigators to identify the right specimens to support a new hypothesis biased by disease to be available from multiple Laboratory Information Management Systems (LIMS). Such open and shared bio-specimen repositories will speed up the rate of biomarker discoveries using patient genotypic data leading to improvements in clinical therapeutics. High-density genomic data, even when de-identified, remain unique to the individual and could potentially be linked to a specific person if used in conjunction with other databases – hence the need for secure storage, dis­ tribution, and use of these data. A detailed exposition of the identity issues surrounding these data is provided, and we conclude that protecting the privacy and confidenti­ ality of participant research data is a responsibility shared by submitters, repositories, and authorized users. These data must be managed with care to maintain public trust. In accordance with these principles, the National Center for Biotechnology Information (NCBI) only releases de-identified data as encrypted files to authorized users. It is the responsibility of each principal investigator (PI) to establish a secured computing facility for local use of the data. Best practices for configuring a secure network are described at the NCBI website. The goal of this process is to ensure that data provided by multiple PIs are kept sufficiently secure and are not released, through either malicious or inadvertent means, to any person not permitted to access them. To accommodate these require­ ments, Lightweight Directory Access Protocols (LDAP) and other active directories must not be directly accessible from the Internet, and the access rights data must not be posted on any web or ftp server. Data placed on shared systems must be secured, and access must be limited to those involved in the research for which the data has been requested. If data are stored on laptops or removable devices, those devices must be encrypted. The release of the Life Sciences Identifier (LSID) declarative protocol specification allows individual

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laboratories to commit to the maintenance of the long­ evity and integrity of their own research data. Likewise, data centers may accept third-party data and maintain these commitments. In simple terms, LSID discovery services are Internet sites that support an Internet-wide catalog of data accessible by LSID and map individual LSIDs to a correct website for resolution services. A single LSID may be resolved by more than one resolution ser­ vice. These services may differ by location and/or syntactic interface. Irrespective of the location or syntax, the data must be identical and immutable by the given Universal Resource Identifier (URI). Due to the simplicity of the LSID concept, a specimen image view can be declared by the primary key attribute of the specimen table, which will be archived and assigned an LSID. The metadata for the assignment is the Dublin Core record, which reveals the power of the approach with respect to its accessibility to biology labs and pro­ vides the descriptors of the specimen. The individual fields of the Dublin Core record are populated using a conventional SQL select/from/where query. Thus, any SQL programmer already familiar with a database may make quick work of defining the archived portions of the database. With security concerns over genomic data transmission, the single most important simplification is the implementation of the requirement that archived data URIs may be replicated to multiple resolution services without transmitting or replicating the data contents. Furthermore, for biological data, which tend to be curated over time, these URI links need to be persistent over time. The universal adoption of LSIDs has not been forthright in the IT community, although similar concepts such Digital Object Identifiers (DOI) for scientific publications have become widely popular.

Conclusions Researchers need to fully appreciate the burden of risk and litigation exposure to the enterprise due to these computer security threats and attacks on clinical geno­ mic and pharmcogenomic databases. At every step of the research process, there must be the vigilance and desire to maintain the confidentiality of biomarker data. Any lapse in security standards by researchers can lead to the discrimination and stigmatization of innocent persons. With the use of pattern-matching algorithms, it would not be difficult to draw inferences about de-identified

biomarker results and the origins of the source speci­ mens. So, in some research establishments now, the identity of the researcher and the clinician is masked in the data to further thwart any attempts to link specimens and biomarker results to patients and subjects. The chal­ lenge in the future will be to assure the rights of study participants while providing for a broad range of research opportunities.

See also: Computer and Information Ethics; Privacy, Ethics of.

Further Reading Hazari S (2005) Perceptions of end-users on the requirements in personal firewall software: an exploratory study. Journal of Organizational and End User Computing 17.3 (July-Sept 2005): 47(19), IGI Global. Hojvat S (2006) Guidance on informed consent for in-vitro diagnostic device studies using leftover human specimens that are not individually identifiable. U.S. Department of Health and Human Services Food and Drug Administration. http://www.fda.gov/ MedicalDevices/DeviceRegulationandGuidance/ GuidanceDocuments/ucm078384.htm Schulte PA and Sweeney MH (1995) Ethical considerations, confidentiality issues, rights of human subjects, and uses of monitoring data in research and regulation. Environmental Health Perspectives 103 (supplement 3): 69–74. Smith A, Greenbaum D, and Douglas SM (2005) Network security and data integrity in academia: an assessment and a proposal for large-scale archiving. Genome Biology 6: 119 (doi:10.1186/gb-2005-6-9-119).

Biographical Sketch Mahendran Maliapen completed his Ph.D. in decision science with system dynamics and data mining applications in health informatics and clinical data management in 2003. He is cur­ rently completing his second Ph.D. in Medicine. He is a Certified Information Systems Professional in Canada, the UK, and Australia. He is a Certified Consultant and a Certified Open Group Master Architect. He has deep experience in the design and development of medical and research information systems, security architectures to support data management for the pharmaceutical, life sciences and healthcare, telecommunications, insurance, and banking and finance industries. He has experience in developing semantic networks, predictive analytics, and segmentation mod­ els and used Markov models for segment migration analysis and self learning algorithms. He holds several patent applications for the techniques and methodologies he has developed.

Confidentiality, General Issues of F G Reamer, Rhode Island College, Providence, RI, USA

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Mary Beth Armstrong, Volume 1, pp 579–582, ª 1998, Elsevier Inc.

Glossary Confidentiality The nondisclosure of certain information except to another authorized person; the state of being secret; the principle in professional ethics that the information a patient or client reveals to a professional is private and has limits on how and when it can be disclosed to a third party. Deontology Of or pertaining to the concept of moral duty and obligation. Ethical dilemma Circumstances in which there are conflicts between and among values, rights, duties, and obligations; a situation that involves an apparent conflict between moral imperatives, in which to obey one would result in transgressing another. Normative ethics Creating or evaluating moral standards; theories that attempt to determine what people should do when faced with an ethical

Confidentiality: An Overview Every profession poses complex confidentiality issues. Journalists are obligated to protect information sources who are not willing to disclose their identity. Business professionals have an obligation to protect the confidenti­ ality of research and development information pertaining to new products. Psychotherapists and counselors are duty bound to protect the confidentiality of their clients. Scientists who work for pharmaceutical or biotechnology firms must protect proprietary confidential information concerning research results. Physicians must ensure that patient privacy is protected. Law enforcement officials must protect informants who share confidential informa­ tion about sensitive investigations. Professionals understand that they have a fundamental moral duty to protect confidential information. However, every professional occasionally encounters ethically ambiguous circumstances related to confidentiality. Examples include researchers who conclude that they may be morally obliged to disclose confidential informa­ tion about a colleague’s or employer’s fraudulent research results; psychotherapists and lawyers who believe they may have a duty to disclose confidential information, with­ out client consent, in order to protect a third party from

dilemma or whether their current moral behavior is reasonable. Privacy The quality of being secluded from the presence or view of others; the state of being free from unsanctioned intrusion. Privileged communication Conversation that takes places within the context of a protected relationship, such as that between doctor and patient, a therapist and client, an attorney and client, a husband and wife, or a priest and penitent; under common law, privilege involves a number of rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed; a statement protected from forced disclosure in court because the statement was made within a ‘protected’ relationship. Teleology The point of view that the moral rightness of an act is determined by the goodness of its consequences.

harm; or a journalist who struggles with her response to a court order to disclose the identity of a confidential source.

Key Concepts: Privacy, Confidentiality, and Privileged Communication Confidentiality is formally defined as the nondisclosure of certain information except to another authorized person. The concept of confidentiality includes the principle that the information a person reveals to a professional is pri­ vate and has limits on how and when it can be disclosed to a third party. Professionals gain access to confidential information when someone – for example, a client, patient, or business associate – chooses to share private information with them. The concept of privacy in professional practice to a great extent is rooted in pronouncements by the Pythagoreans in the fourth century BC and was later incorporated in the Hippocratic oath: ‘‘All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.’’ The concept of privacy was also an important component of ancient Jewish law, as conveyed in the Talmud. Early

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English common law also acknowledged the right to privacy associated with the concept of honor among gen­ tlemen. Stated simply, privacy is the quality of being secluded from the presence or view of others. That is, people choose to keep private that which they do not want others to know. Once individuals share private information, professionals have an ethical duty to manage that confidential information properly. Sometimes unique circumstances arise when profes­ sionals are asked or ordered to disclose confidential information during legal proceedings, such as litigation, custody disputes, criminal trials, and termination of par­ ental rights proceedings. In these instances, professionals must be familiar with the concept of privileged commu­ nication. Privileged communication includes conversations that take place within the context of a protected relationship, such as that between doctor and patient, a therapist and client, an attorney and client, a husband and wife, or a priest and penitent; under common law, privilege involves a number of rules excluding evi­ dence that would be adverse to a fundamental principle or relationship if it were disclosed. For example, a privileged statement would be protected from forced disclosure in court because the statement was made within a ‘protected’ relationship. The standards and rules governing the management of private, confidential, and privileged information vary from profession to profession. Some professions, such as psychol­ ogy, psychiatry, social work, and the law, have ratified codes of ethics that include explicit guidelines governing the management of confidential information; all members of these professions are expected to adhere to these ethical standards. Other professions, such as business and teaching, do not have formal codes of ethics that include confidenti­ ality standards to which all members are expected to adhere, although these professions may have developed widely embraced ethical norms. Furthermore, in many, but not all, professions there are laws and regulations that set forth strict confidentiality guidelines. Also, many employers have developed confidentiality guidelines as a matter of internal organizational policy.

Conceptual Perspectives on Privacy and Confidentiality Contemporary scholarly literature on privacy and con­ fidentiality dates primarily from the 1960s and 1970s, although certainly there are prominent earlier publica­ tions; for example, in 1890, Samuel Warren and Louis Brandeis published the well-known article, ‘The Right to Privacy,’ in the Harvard Law Review. Concern about con­ fidentiality during the 1960s and, especially, during the 1970s reflected a broader concern about ethical issues in

general and the emergence of the nascent field of practical and professional ethics. In an ambitious discussion in The Monist, Leslie Pickering Francis summarizes the most important argu­ ments for privacy and confidentiality in diverse contexts, particularly with respect to the key goals of physical security, liberty, intimacy, dignity, identity, and equality:

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Physical security: Privacy and confidentiality may be necessary for physical security. A mental health pro­ fessional who offers services to domestic violence victims has an obligation to protect confidential information con­ cerning a client’s whereabouts so that the perpetrator cannot locate her and cause further harm. A priest who counsels a political refugee may feel obliged to conceal the person’s identity to honor the priest–penitent privi­ lege and to prevent legal or other harassment. Liberty: Liberty is ordinarily defined as ‘the free­ dom from unwarranted intrusion into private matters.’ A physician may have a duty to protect a patient’s privacy and confidentiality to prevent unwarranted intrusion in his or her life by an insurance company or government health agency. A school counselor may protect a student’s private and confidential information to prevent intrusion in the student’s life by a school administrator. Intimacy: Professionals often have access to very personal, intimate information about patients’ and clients’ lives. Improper management of this information could compromise an individual’s sense of intimacy and inter­ fere with intimate relationships. A mental health professional who provides marital or couple’s counseling must manage private and confidential information care­ fully, particularly when one member of the couple discloses information without the knowledge of the other party. A lawyer who serves family members with regard to a complex probate matter must be careful about disclosures of private and confidential information among family members. Dignity: Inappropriate, unauthorized disclosures of private and confidential information by professionals can compromise patients’ and clients’ dignity. A pharmacist who inappropriately discloses the names of a patient’s medications and, by implication, information about the patient’s sensitive medical condition may cause that patient to feel humiliated. A teacher who gossips about a student’s personal circumstances may harm the student’s dignity and cause the student to feel overexposed. Identity: People who believe that their privacy has been invaded or confidentiality breached may begin to think differently about themselves in ways that are painful and troubling. If a journalist exposes a source’s identity without permission, the source may have to alter her identity in order to manage public scrutiny and pressure. A gang member who shares information with the police about a suspect, and whose identity has been disclosed in

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the community by the police, may need to alter his life circumstances to prevent risk of retaliation. Equality: Inappropriate disclosure of private and confidential information by professionals can place patients, clients, and other parties at a disadvantage. A psychiatric patient whose privacy and confidentiality are compromised among patients in a psychiatric hospital may be treated differently by staffers and fellow patients in ways that are hurtful and harmful. A business client whose private and confidential financial information is disclosed inadvertently may be at a disadvantage in a sensitive business negotiation.

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It is important to distinguish between two kinds of con­ fidentiality: absolute and relative. The security of information is absolute when it is never disclosed to any­ one in any form under any circumstances. Under absolute confidentiality, mental health professionals would never share information with supervisors; teachers would never share information with school administrators; physicians, nurses, lawyers, and clergy would never share informa­ tion with law enforcement officials who are conducting a homicide investigation; and journalists would never dis­ close the identity of a source. In contrast, relative confidentiality includes situa­ tions in which professionals who ordinarily protect confidential information conclude that because of exceptional or extraordinary circumstances, confidential information must be shared with a third party. Thus, a criminal defense lawyer whose client threatens to mur­ der an adversarial witness who is scheduled to testify against the client may conclude that she has a moral duty to disclose that information in order to protect the potential victim. A company employee who discovers that a senior executive is perpetrating a major fraud may feel morally obliged to disclose that information to the board of directors to protect company employees and company stockholders. A physician whose patient is HIV positive may feel morally obliged to share this informa­ tion with the patient’s sexual partner who does not know about the patient’s HIV status, if there is evidence that the patient is not willing to take steps to protect the sexual partner. A hospital social worker, who ordinarily respects patients’ privacy, may feel obliged to share information with other hospital professionals, on a ‘need to know’ basis, in order to ensure that patients’ health-related needs are met and that health care is coordinated. Many ethical dilemmas involving confi­ dentiality concern relative confidentiality – that is, judgments about whether professionals have an ethical duty to violate patients’, clients’, and business associates’ confidentiality rights in extraordinary circumstances in order to protect an individual or a third party from harm. Many discussions of confidentiality refer to profes­ sionals’ prima facie duty to protect confidentiality. That

is, we presume that in nearly all circumstances profes­ sionals will protect patients’, clients’, business associates’, and other relevant parties’ confidentiality; a strong case would need to be made to override this moral duty. Beauchamp and Childress offer a popular outline of four requirements to justify violating individuals’ confidenti­ ality (and other) rights: 1. The moral objective justifying the infringement must have a realistic prospect of bringing about the desired end. 2. Infringement of a prima facie principle must be necessary in the circumstances, in the sense that there are no morally preferable alternative courses of action that could be substituted. 3. The form of infringement selected must constitute the least infringement possible commensurate with achieving the primary goal of the action. 4. The agent must seek to minimize the effects of the infringement. Ethical challenges in the professions related to confiden­ tiality concern three sets of issues: confidentiality errors, ethical misconduct, and ethical dilemmas. Confidentiality Errors: Ethical Implications Even well-meaning, competent, and ethical professionals can make mistakes in their management of confidential information. A pharmacist may speak too loudly to a customer, within earshot of other customers, about the customer’s neuroleptic medication that was prescribed to treat a serious psychiatric condition. A hospital nurse may disclose confidential information inadvertently during a hallway conversation with a doctor. A business executive may leave a confidential document concerning an employee’s substance abuse challenges on top of the photocopy machine. A mental health counselor might send an electronic fax containing confidential information to an incorrect telephone number. A lawyer might include confidential information in an e-mail message that she sends inadvertently to an unintended recipient. Most confidentiality errors are preventable. Professionals can avoid inappropriate disclosures of confidential informa­ tion by paying careful attention to the information and documents in their possession, avoiding casual and inadver­ tent disclosures. Ethical Misconduct and Confidentiality Occasionally, unethical practitioners disclose confidential information for self-serving purposes. A business employee may leak confidential information to a super­ visor in order to sabotage a colleague with whom she has had interpersonal conflict. A rogue police officer who receives payoffs from drug dealers may tip off one of his

556 Confidentiality, General Issues of

cronies who is the subject of an undercover investigation. A corrupt stockbroker may leak insider information to a woman he is trying to seduce. A dishonest lawyer may accept a bribe from a public official in exchange for confidential information about the official’s political opponent to which the lawyer is privy. Clearly, this sort of management of confidential infor­ mation is unethical. Self-serving violations of widely held ethical standards pertaining to confidentiality are never justifiable on moral grounds. Ethical Dilemmas and Confidentiality The most daunting challenges for professionals involve ethical dilemmas pertaining to confidentiality. An ethical dilemma occurs when a person encounters conflicts among values, duties, rights, and obligations. Moral phi­ losophers and ethicists often refer to these situations as hard cases. These are cases that confront one with a difficult choice among conflicting values, duties, obliga­ tions, and rights, or what the philosopher W. D. Ross referred to in his 1930 book, The Right and the Good, as conflicting prima facie duties – duties that, when consid­ ered by themselves, one is inclined to perform. Ethical dilemmas occur when one simply cannot perform all of the relevant prima facie duties; to perform one duty would require violation of another. One may have to choose between two incompatible but ordinarily appeal­ ing options or between two incompatible and ordinarily unappealing options. Either way, one has to sacrifice something, and our choice sometimes reduces to what Karl Popper referred to as the ‘‘minimization of suffering.’’ Eventually, people who encounter ethical dilemmas must choose what Ross called an actual duty from among con­ flicting prima facie duties. Every profession has its share of ethical dilemmas related to confidentiality. For example, a journalist who promised to protect a confidential source’s identity may have to decide whether to divulge the identity when ordered to do so by a judge in the context of a highprofile court proceeding. This choice would involve a conflict between the source’s prima facie right to confi­ dentiality and the reporter’s prima facie duty to obey a court order. A police officer who is in the midst of a complex homicide investigation may have to choose between protecting a confidential informant’s identity and disclosing this information in order to obtain a signed search warrant. This choice would involve a conflict between the informant’s prima facie right to confidenti­ ality and the police officer’s prima facie duty to carry out her law enforcement obligations. A hospital social worker may have to decide whether to breach a patient’s con­ fidentiality and share sensitive information (e.g., related to the patient’s chronic abuse of prescription narcotics) with other hospital staffers in order to ensure that the patient’s

needs are met. This choice would involve a conflict between the patient’s prima facie right to privacy and the social worker’s duty to ensure that the patient’s health care needs are met to the greatest extent possible. A mental health counselor who provides therapeutic ser­ vices to a man who discloses his intention to seriously harm his ex-wife’s boyfriend would have to decide whether to protect her client’s confidentiality rights or disclose the information in an effort to protect the poten­ tial victim. This choice would involve a conflict between the client’s prima facie right to confidentiality and the counselor’s prima facie duty to protect a third party from harm.

Preventing Moral Harm: Protecting Confidentiality and Managing Risk Professionals who encounter ethical dilemmas related to confidentiality have an obligation to protect the people to whom they owe a moral duty. In an effort to fulfill their duty and minimize harm, professionals should approach ethical decision making systematically and conscien­ tiously. No precise formula for resolving ethical dilemmas exists. Reasonable, thoughtful professionals can disagree about ethical principles and criteria that ought to guide ethical decisions in any given case. However, ethicists generally agree that it is important to approach ethical decisions systematically, to take into consideration a number of key concepts and factors: iden­ tifying the ethical issues, including the values, rights, and duties that conflict; identifying the individuals, groups, and organizations likely to be affected by the ethical decision; tentatively identifying all viable courses of action and the participants involved in each, along with the benefits and risks for each; and thoroughly examining the reasons in favor of and opposed to each course of action, considering relevant ethical theories and concepts, codes of ethics, legal principles, and standards of care in the respective professions. This systematic approach can enhance the quality of ethical decisions. Ethical Theory One of the more recent trends in professional education and training is to introduce professionals to ethical the­ ories and concepts that may help them analyze and resolve ethical dilemmas related to confidentiality and other moral challenges. The practical application of ethical the­ ories to ethical dilemmas is known as normative ethics. Theories of normative ethics are generally grouped under two main headings. Deontological theories (from the Greek deontos, ‘of the obligatory’) are those that claim that certain actions are inherently right or wrong, or good or bad, without regard for their consequences. Thus, a

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deontologist – the best known is Kant, the eighteenthcentury German philosopher – might argue that main­ taining confidentiality is inherently right, and thus professionals should never disclose confidential informa­ tion without proper authorization or consent. For deontologists, rules, rights, and moral principles are sacred and inviolable. The ends do not necessarily justify the means, particularly if they require violating some important rule, right, principle, or law. One well-known problem with this deontological per­ spective is that it is often easy to imagine conflicting arguments that use similar language about inherently right (or wrong) actions. Thus, one can imagine a deontologist who argues that all clients have an inherent right to privacy and confidentiality and that it would be immoral for a professional to disclose private and confidential information without a party’s informed consent. However, another deontologist might argue that professionals have an inher­ ent obligation to protect potential victims from harm and, therefore, professionals may have a duty to disclose private and confidential information without consent when doing so would prevent serious harm. The second major group of theories, teleological the­ ories (from the Greek teleios, ‘brought to its end or purpose’), takes a different approach to ethical choices. From this point of view, the rightness of any action is determined by the goodness of its consequences. Teleologists think it is naive to make ethical choices without weighing potential consequences. To do other­ wise is to engage in what the philosopher J. J. C. Smart referred to as rule worship. Therefore, from this perspec­ tive (sometimes known as ‘consequentialism’), the responsible strategy entails an attempt to anticipate the outcomes of various courses of action regarding the pro­ tection and disclosure of confidential information and to weigh their relative merits. There are two major teleological schools of thought: egoism and utilitarianism. Egoism is a form of teleology that is relatively rare in the helping professions (e.g., nursing, medicine, social work, and counseling) but perhaps somewhat more common in professions that are motivated primarily by profit and other self-serving inter­ ests. According to this point of view, when faced with conflicting duties pertaining to the management of con­ fidential information, decision makers should maximize their own good and enhance their self-interest. In contrast, utilitarianism, which holds that an action is right if it promotes the maximum good, has historically been the most popular teleological theory and has, at least impli­ citly, served as justification for many decisions made by professionals. According to the classic form of utilitar­ ianism – as originally formulated by the English philosophers Jeremy Bentham in the eighteenth century and John Stuart Mill in the nineteenth century – when faced with conflicting duties concerning the management

of confidential information, one should do that which will produce the greatest good (positive utilitarianism) or the least harm (negative utilitarianism). In principle, a profes­ sional should engage in a calculus to determine which set of consequences (protecting confidential information or dis­ closing it) will produce the greatest good or minimize harm. One oft-cited problem with utilitarianism is that this framework, like deontology, sometimes can be used to justify competing options. One utilitarian might argue that the greatest good will be served by protecting con­ fidential information while another claims just the opposite because of their different measurement criteria and definitions of ‘good’ and ‘harm.’ Many ethicists believe that it is important to distin­ guish between act and rule utilitarianism when making ethical decisions in general and with regard to confidenti­ ality in particular. According to act utilitarianism, the rightness of an action is determined by the goodness of the consequences in that individual case or by that parti­ cular act. One does not need to look beyond the implications of this one instance. By contrast, rule utili­ tarianism takes into account the long-term consequences likely to result if one generalizes from the case at hand or treats it as a precedent. Thus, an act utilitarian might argue that disclosing confidential information without authorization is justifiable in an individual case (e.g., a particular journalist’s decision to disclose information obtained from a confidential informant that could be used to exonerate an innocent defendant in a highly publicized criminal court case or a hospital social work­ er’s decision to share a patient’s private information with other hospital staffers in order to provide the patient with the best health care possible), whereas a rule utilitarian might argue that the precedent established by this breach of trust would generate more harm than good if it is generalized across all comparable circumstances, regard­ less of the benefits produced in this one case (i.e., if one generalized this practice and all journalists used their discretion about disclosing information obtained from confidential sources, more harm than good would result because of the negative impact on the journalism profes­ sion’s integrity and the public’s willingness to trust journalists). Several other ethical perspectives have received some attention in recent years. For example, according to com­ munitarianism (also known as community-based theory), ethical decisions should be based primarily on what is best for the community and communal values (the common good, social goals, and cooperative virtues) as opposed to individual self-interest. The ethics of care, in contrast, reflects a collection of moral perspectives more than a single moral principle. This view emphasizes the impor­ tance in ethics and moral decision making of decision makers’ emotional commitment to, and willingness to act on behalf of, persons with whom they have a

558 Confidentiality, General Issues of

significant relationship. From this perspective, decisions about the management of confidential information should take into consideration the decision maker’s emotional connection to the parties involved. One other prominent perspective that is relevant to ethi­ cal decisions about confidentiality takes into account professionals’ core virtues. Beauchamp and Childress identify several core or ‘focal’ virtues that are critically important when making ethical decisions, and these are relevant when making moral judgments about confidentiality:

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Compassion: A trait that combines an attitude of active regard for another’s welfare with an imaginative awareness and emotional response of deep sympathy, tenderness, and discomfort at another’s misfortune or suffering. Compassion presupposes sympathy, has affi­ nities with mercy, and is expressed in acts of beneficence that attempt to alleviate the misfortune of another person. Discernment: The virtue of discernment brings sen­ sitive insight, acute judgment, and understanding of action. Discernment involves the ability to make judg­ ments and reach decisions without being unduly influenced by extraneous considerations, fears, personal attachments, and the like. Trustworthiness: Trust is a confident belief in and reliance on the moral character and competence of another person. Trust entails a confidence that another will act with the right motives and in accordance with appropriate moral norms. Integrity: Moral integrity means soundness, reliabil­ ity, wholeness, and integration of moral character. In a more restricted sense, moral integrity means fidelity in adherence to moral norms. Accordingly, the virtue of integrity represents two aspects of a person’s character. The first is a coherent integration of aspects of the self – emotions, aspirations, knowledge, and so on – so that each complements and does not frustrate the others. The sec­ ond is the character trait of being faithful to moral values and standing up in their defense when necessary. Conscientiousness: An individual acts conscien­ tiously if he or she is motivated to do what is right because it is right, has tried with due diligence to deter­ mine what is right, intends to do what is right, and exerts an appropriate level of effort to do so.

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These five focal virtues are linked to four core moral principles that, Beauchamp and Childress argue, consti­ tute the moral foundation of professional practice, including ethical decisions about confidentiality:

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Autonomy: The concept of autonomy implies selfrule that is free from both controlling interference by others (e.g., unwarranted disclosure of confidential infor­ mation) and limitations (a person’s right to decide whether confidential information should be disclosed).

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Nonmaleficence: The principle of nonmaleficence asserts an obligation not to inflict harm on others (e.g., as a result of unauthorized disclosure of confidential information). Beneficence: The term ‘beneficence’ connotes acts of mercy, kindness, and charity. Forms of beneficence include protecting people’s privacy by not disclosing con­ fidential information about them without their consent. Justice: The terms ‘fairness,’ ‘desert’ (what is deserved), and ‘entitlement’ have been used by various philosophers in attempts to explicate justice. These accounts interpret justice as fair, equitable, and appropri­ ate treatment in light of what is due or owed to persons. A holder of a valid claim based in justice (e.g., to privacy and confidentiality) has a right and therefore is due something (protection of privacy and confidentiality). An injustice thus involves a wrongful act or omission that denies people benefits to which they have a right or distributes burdens unfairly.

• •

Codes of Ethics Many, although not all, professions have developed ambi­ tious codes of ethics that offer guidance to professionals who face ethical decisions related to confidentiality. One hallmark of a profession is its willingness to establish ethical standards to guide practitioners’ conduct. Ethical standards are created to help professionals identify ethical issues in practice and provide guidelines to determine what is ethically acceptable and unacceptable behavior. According to Jamal and Bowie, codes of ethics are designed to serve several purposes, two of which have particular relevance to moral judgments about confiden­ tiality. First, codes address problems of moral hazard or instances in which professionals’ self-interest may conflict with the public’s interest. Such conflicts occur in a variety of ways. Examples include whether accountants should be obligated to disclose confidential information concerning financial fraud that their clients have committed, whether journalists should be obligated to disclose the source of confidential information that could be used to prevent terrorism, whether physicians should be obligated to dis­ close confidential information about a patient’s HIV status to the patient’s sexual partner who is unaware of the patient’s HIV infection, and whether social workers should be expected to disclose to law enforcement offi­ cials confidential information about crimes that their clients have admitted committing. Second, codes address issues of professional courtesy – that is, rules that govern how professionals should behave to enhance and maintain a profession’s integrity. An example is whether mental health counselors, lawyers, and nurses should disclose confidential information about a colleague’s alleged impairment or unethical conduct.

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Historically, codes of ethics in the professions have been fairly superficial documents, often resembling an oath or affirmation more than a comprehensive and detailed set of standards and guidelines. More recently, especially since the 1990s, many professions have devel­ oped much more ambitious, detailed, and explicit codes that provide clearer guidance, particularly in relation to confidentiality. Many of these codes address issues related to, for example, privacy rights; disclosures to protect clients, patients, or third parties from harm; informed consent criteria pertaining to release of confidential infor­ mation; disclosures to third-party payers (e.g., insurance companies); disclosures during legal proceedings (so-called privileged communication guidelines); disclo­ sures to the media; protection of electronic confidential records; electronic disclosures of confidential information (via e-mail and facsimile machines and postings on social networking websites); transfer and disposal of confidential records and documents; protection of parties who do not have the legal capacity to consent to disclosure (e.g., minors and people with cognitive impairment); disclosures during teaching, training, and consultation; and protection of deceased individuals’ right to confiden­ tiality. Professionals should consult relevant codes of ethics when they encounter ethical dilemmas related to confidentiality. Legal Principles Many governments throughout the world have laws related to confidentiality. These laws take several forms. Many legislative bodies have enacted statutes that govern the management of confidential information. Examples include statutes that stipulate when healthcare profes­ sionals can or must disclose confidential information for public health purposes and when mental health and other professionals are required to report confidential informa­ tion concerning suspected child abuse or neglect. In addition, government agencies typically create reg­ ulations that have the force of law. Such regulatory laws may state when accountants, for example, are permitted or required to disclose fraudulent financial practices or when hospital personnel are permitted or required to disclose confidential information to law enforcement officials. Furthermore, courts of law may render opinions that constitute legal precedents pertaining to confidentiality. Under the common law tradition, there are a number of court decisions that are now legendary and create legal precedent (also known as ‘case law’) concerning circum­ stances that warrant or require disclosures of confidential information. A well-known example is the U.S. case of Tarasoff v. Board of Regents of the University of California, which has had a profound impact on mental health pro­ fessionals’ decisions about disclosure of confidential

information, without a client’s consent, to protect a third party from serious, imminent, and foreseeable harm. Finally, in some nations, constitutional provisions may guide professionals’ ethical judgments about privacy and confidentiality. The Fourth Amendment in the Bill of Rights of the U.S. Constitution, for example, prohibits unreasonable search and seizure. This constitutional pro­ vision has implications in situations in which government officials and other parties request confidential records.

Standards of Care Occasionally, a disgruntled party may allege that a pro­ fessional mishandled or mismanaged confidential information in ways that were harmful. For example, a physician’s patient may allege that the physician disclosed sensitive health information about the patient without authorization to the patient’s spouse and that this disclo­ sure had an adverse impact on the relationship. An accountant’s client may allege that the accountant dis­ closed confidential information inappropriately to a government tax official that resulted in significant finan­ cial harm to the client. A mental health counselor’s client may allege that the counselor disclosed unauthorized information to a police officer that led to the client’s arrest. People who believe that they have been harmed by an improper disclosure of confidential information may file lawsuits that seek some kind of redress. These negligence claims typically allege that the defendant failed to per­ form in a manner consistent with the legal concept of standard of care – that is, the way an ordinary, reasonable, and prudent professional would act in the same or similar circumstances. Negligence can occur as a result of a professional’s active violation of someone’s rights by dis­ closing confidential information without authorization (in legal terms, acts of commission or misfeasance) or a pro­ fessional’s failure to disclose confidential information when it should have been disclosed, for example, to pre­ vent harm to a third party (acts of omission or nonfeasance). Definitions of ‘negligence’ typically include four elements: 1. At the time of the alleged negligence, a legal duty existed between the professional and the person who claims to have been harmed (e.g., the duty that a physi­ cian, nurse, or mental health counselor would owe to his or her patient or client). 2. The professional was derelict in that duty, either through an omission (e.g., failing to notify government child welfare or elder welfare officials about suspected abuse or neglect, as required by law) or through an action that occurred, or commission (e.g., disclosing confidential information to law enforcement officials or a family mem­ ber without authorization).

560 Confidentiality, General Issues of

3. The plaintiff or complainant suffered some harm or injury (job loss, marital discord, housing eviction, arrest, or emotional harm that allegedly resulted from the mis­ management of confidential information). 4. The professional’s dereliction of duty was the direct and proximate cause of the harm or injury (e.g., the injuries or harm were the result of the professional’s unauthorized disclosure of confidential information). In order to protect patients, clients, colleagues, and other relevant parties, professionals should be very familiar with prevailing standards of care in their respective pro­ fession. Standards of care reflect prevailing professional opinion about what constitutes ordinary, reasonable, and prudent practice, as articulated in codes of ethics, repu­ table professional literature, policies and guidelines established by recognized professional associations, agency and organizational policies, expert testimony, and pertinent legal guidelines. To minimize ethics-related risk, professionals should conduct a comprehensive assessment, or audit, of their confidentiality practices, policies, and procedures. Ideally, professionals should carefully examine the ways in which they manage confidential information and assess the adequacy of organizational policies and procedures in light of current standards of care. This kind of ethics audit – designed to assess whether there are no, minimal, moderate, or serious confidentiality risks – is an effective way to enhance protection of all parties involved.

Conclusions The concepts of privacy and confidentiality are central to the professions. They are among the most enduring guideposts in the professions and essential elements of professional service and relationships. People who are confident that their private and confidential information will be managed ethically are likely to avail themselves of needed services and enter into relationships with profes­ sionals. Professionals who manage private and confidential information ethically not only fulfill their duty to the people they serve and with whom they colla­ borate but also minimize risk to themselves and their careers. Confidentiality norms and standards have evolved since the advent of the earliest professions. What were once relatively simplistic notions based on the core concept of privacy have expanded to include complex ethical and legal guidelines that address a daunting array of unique confidentiality challenges that arise in the various profes­ sions. Professionals would do well to become acquainted

with pertinent ethics concepts, decision-making strategies, and prevailing standards of care to fulfill their professional duties, enhance protection, and minimize harm.

See also: Care, Ethics of; Codes of Ethics; Communitarianism; Confidentiality of Sources in Social Research; Consequentialism and Deontology; Egoism and Altruism; Kantianism; Moral Relativism; Privacy, Challenges to; Privacy, Ethics of; Professional Ethics; Psychiatric Ethics; Research Ethics Committees; Social Work; Theories of Ethics, Overview; Trust; Utilitarianism; Virtue Ethics; Whistleblowing.

Further Reading Francis L (2008) Privacy and confidentiality: The importance of context. The Monist 91: 52–67. Gavison R (1980) Privacy and the limits of law. Yale Law Journal 89: 421–471. Gormley K (1992) One hundred years of privacy. Wisconsin Law Review 4: 1335–1441. Jamal K and Bowie N (1995) Theoretical considerations for a meaningful code of professional ethics. Journal of Business Ethics 14: 703–714. Levin C, Furlong A, and O’Neil M (2003) Confidentiality: Ethical Perspectives and Clinical Dilemmas. East Sussex, UK: Analytic Press. Mills J (2008) Privacy: The Lost Right. New York: Oxford University Press. Parent W (1983) Privacy, morality, and the law. Philosophy & Public Affairs 12: 269–288. Parker L and Arnold R (1998) Confidentiality: Revealing trends in bioethics. Bioethics Forum 14: 32–42. Rachels J (1975) Why privacy is important. Philosophy & Public Affairs 4: 323–333. Reamer F (2001) The Social Work Ethics Audit: A Risk Management Tool. Washington, DC: NASW Press. Reiman J (1976) Privacy, intimacy, and personhood. Philosophy & Public Affairs 5: 26–44. Solove D (2009) Understanding Privacy. Cambridge, MA: Harvard University Press. Stanley P (2008) The Law of Confidentiality: A Restatement. Oxford: Hart Publishing. Thomson J (1975) The right to privacy. Philosophy & Public Affairs 4: 315–322. Warren S and Brandeis L (1890) The right to privacy. Harvard Law Review 4: 193–220.

Relevant Websites http://www.ala.org/Template.cfm?Section¼ifissues&Template¼/ ContentManagement/ContentDisplay.cfm&ContentID¼25304 – American Library Association, ‘Privacy and Confidentiality.’ http://www.indiana.edu/�appe – Association for Practical and Professional Ethics. http://epic.org – Electronic Privacy Information Center. http://repository.cmu.edu/jpc – Journal of Privacy and Confidentiality. http://privacy.org – Privacy International. http://www.med-ed.virginia.edu/courses/rad/confidentiality – University of Virginia, ‘Patient Confidentiality for Health Care Providers.’

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Biographical Sketch Frederic Reamer is Professor in the School of Social Work, Rhode Island College. His research and teaching have focused on mental health, health care, criminal justice, and professional ethics. He received his PhD from the University of Chicago and has served as a social worker in correctional and mental health settings. His books include Heinous Crime: Cases, Causes, and Consequences; The Social Work Ethics Casebook: Cases and Commentary; A Guide to Essential Human Services; Criminal Lessons: Case Studies and Commentary on Crime and Justice; Social Work Values and Ethics; Tangled Relationships: Managing Boundary

Issues in the Human Services; Ethical Standards in Social Work; The Social Work Ethics Audit: A Risk Management Tool; Ethics Education in Social Work; The Foundations of Social Work Knowledge; Social Work Malpractice and Liability; Social Work Research and Evaluation Skills; The Philosophical Foundations of Social Work; AIDS and Ethics; Ethical Dilemmas in Social Service; Rehabilitating Juvenile Justice (with Charles Shireman); The Teaching of Social Work Ethics (with Marcia Abramson); Finding Help for Struggling Teens: A Guide for Parents and the Professionals Who Work with Them (with Deborah Siegel); and Teens in Crisis: How the Industry Serving Struggling Teens Helps and Hurts Our Kids (with Deborah Siegel).

Confidentiality of Sources in Social Research M S Taylor, Maldon, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Biometric The use of human anatomical characteristics to activate or access a device. Cultural Pertaining to, or deriving from the ways of living, knowledge and values shared by a society. Culture The ways of living, knowledge and values shared by a society. Normative A tendency/leaning toward or enforcement of what is the accepted pattern of behavior. Penitent One who repents or confessed his or her sins (usually to a member of the church).

The Meaning of Confidentiality Normative and Research Definitions of Confidentiality As it is commonly understood (in the context of a rela­ tionship), ‘confidentiality’ means keeping the confidences of someone who has entrusted you with certain informa­ tion. It is usually the case that this is someone with whom you have a relationship and who trusts you not to divulge the information (usually central to that person’s sense of self) to anyone else. In the context of a researcher– participant relationship, confidentiality often involves negotiating how to manage what will inevitably mean a breach of this norm (given that the information will be made public) while ensuring that the participant does not come to any harm as a result. Although many of the major professional (social science) bodies have guidelines/codes of conduct that confer on a researcher the duty to keep participants’ identities confidential (in order to minimize harm to those individuals), only recently have they begun to realize the importance of giving participants a choice as to whether or not they wish their accounts (it is usually with reference to participant observations, ethnographies, and interviews) to be anonymized. (In this article, the term participant is used to mean any individual who provides information to a researcher. In different disciplines, and under different research protocols, theses individuals are variously referred to as: subjects, participants, informants, respondents, and so on.) Leading the way is the American Anthropological Association, whose guidelines state:

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Public interest An act that is for the betterment of the population. Self-disclosure Revealing something about oneself, usually something that is central to one’s sense of self. Social norm An established pattern of behavior, generally accepted as proper or appropriate in the situation. Subpoena An order compelling a person to testify or produce evidence in court. Wronged To treat in an unjust manner.

Anthropological researchers must determine in advance whether their hosts/providers of information wish to remain anonymous or receive recognition, and make every effort to comply with those wishes. Researchers must present to their research participants the possible impacts of the choices, and make clear that despite their best efforts, anonymity may be compromised or recogni­ tion fail to materialize. (Code of Ethics of the American Anthropological Association, approved February 2009)

Researchers need to realize that in anonymizing a per­ son’s account, they are, effectively, depriving that person of his or her ownership of that account, and this can often be seen as yet another example of a researcher stamping their authority on the situation (and exercising their power over the research participant). An example, reported in Grinyer, shows what happened when a woman (who gave an account of her son suffering with cancer) saw her account attributed to pseudonym (in an earlier draft of the research report): I was very moved by the whole article and the experi­ ences of other parents. I have one major regret that I can now express, but at the time it meant that I just couldn’t respond to your letter. . . . Looking back I was very dis­ appointed not to see Stephen’s and my name in print. Even though my words were there, I felt as though I had somehow lost ownership of them and had betrayed Stephen’s memory. That was entirely my own fault. I know that you followed my original wishes but this was a great mistake on my part. I was also upset because my family and friends found it odd as well. They expected and wanted . . . our names too. Please if you use any of my writing or photographs in the future can you be sure to

Confidentiality of Sources in Social Research use all our real names. . . . I had been looking forward to the transcript of your article in order to share other’s experi­ ences, but without our real names I didn’t feel part of it. I didn’t show it to anyone because I knew they would not have recognised Steve. (Gabrielle (real name, emphasis in original) cited in Grinyer, 2002)

Examples such as this suggest that in our determination to do what is right in terms of protecting participants from harm, we may actually be doing them an injustice. This wrong/harm distinction is one that will be familiar to legal scholars – the traditional tort/criminal law distinction.

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This can work both ways. In Patterns of Culture, Ruth Benedict discusses a class of Native American people known as Berdache. The Berdache are, basically, men who take on a female role, often acting as exemplary role models for the same. Although there is some awk­ wardness in accommodating them into Native American society, it is their male husbands who bear most of the shame (because Berdache are seen as easier to bed than real women). At the time her book was first published (and for many years after), homosexuality was a criminal offence in the United Kingdom and such practices would not have been talked about as candidly as this.

Cultural and Cross-Cultural Issues

Levels of Confidentiality and the Issue of Longitudinal Research

Although many ethical guidelines, and even laws, advo­ cate the protection of participants, few interpret this along the lines of the norm of confidentiality, as it is understood in everyday society. One has to remember that in a research setting, one is effectively redefining what con­ fidentiality means and, for this reason, it is important that both parties are clear about what it does and does not mean, in order to ensure that participants do not feel wronged by a breach of the same. It is not enough to simply expect that because participants are from one’s own culture, they will understand the precise details of whatever set of ethical guidelines one is working to. In a study by the U.S. Committee on National Statistics, 40% of participants who had not been given any assurances of confidentiality erroneously recalled (or assumed) that they had. Conversely, only about three-fourths of those who had been given such assur­ ances were able to accurately recall what they were. This shows that people assume that information divulged in the context of a research project will remain confiden­ tial, even if no expressed agreement is made to that effect. However, it also shows that a significant minority take this as read and pay little attention to any assur­ ances that they are given. In this respect, anthropologists perhaps have an advan­ tage over other social researchers in that, because they are often working with participants from other cultures, they are less likely to make assumptions about the participants’ understanding of ethical protocols and issues of confidentiality. It is important to remember that confidentiality may mean different things in different cultures. More importantly, different cultures may have different interpretations of what constitutes personal information. For example, in the United States, salaries are discussed openly and the information is offered as a form of competitive pride, whereas in the United Kingdom it is often a source of embarrassment, particularly if there is the possibility of making one’s friends feel inferior.

Given the nature of social research, participants’ informa­ tion is going to be disclosed, to some degree, even if it is only to one’s own co-workers. Under the terms of the UK Data Protection Act, 1998, people have a right to know what information is being (or proposed to be) held about them, they must give their permission for this information to be retained, the information must be kept safe, and it must not be disclosed to any third party. Under the terms of the Act, giving the data to one’s co-worker is not disclosure, nor is giving it (for research purposes) in a form that does not permit the individuals to be identified. This is particularly important when it comes to long­ itudinal research, where it may be necessary to identify participants for future reference. A good example of this is the case of H.M. H.M. underwent surgery to cure his epileptic fits. Unfortunately, this left him with severe anterograde amnesia, which meant that he could remem­ ber things from before the surgery but he could not retain memories of people and events that happened after it. Consequently, every time he met someone new to him, after the surgery, it was like meeting that person for the first time. Over the course of 50 years, Brenda Milner and (around 30 of) her colleagues documented H.M.’s con­ dition. Obviously, the researchers knew who H.M. was (only recently has his identity been revealed as Henry Gustav Molaison), and those close to him would have been able to identify him, by virtue of the uniqueness of his condition. One presumes that Milner and co­ workers explained to Mr. Molaison that his details would remain confidential, but due to his condition, he would have almost certainly been unable to remem­ ber this. This raises the issue of vulnerable participants and the fact that one must ensure that not only do participants understand what is meant by confidentiality (in the con­ text of the research) but also that those acting as their proxy or translator also understand what it means and can communicate this to the participants.

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Effects of Confidentiality/Anonymity on Behavior Anonymity has been widely acknowledged to have a dis­ inhibiting effect, leading to antisocial behavior and expressions of antinormative attitudes. This disinhibiting effect is often seen as something positive in that it is presumed to elicit more open and honest responses. At this point, it is perhaps worth mentioning that research into the effects of confidentiality on response rates, has been mixed. Various studies have shown that such self-disclo­ sure is more likely to take place when the information is given anonymously than when it is given face to face, but this only appears to be the case when the information is of a particularly sensitive nature, such as child abuse, illicit drug use, and the expression of racist attitudes and behavior among military service personnel. A good example of an opinion that may not have been expressed were it not for the assurance of confidentiality, is that of a church minister, interviewed by Geoffrey Walford, known only as ‘A’: AIDS is basically a homosexual disease . . . and is doing a very effective job of ridding the population of undesir­ ables. In Africa it’s basically a non-existent disease in many places. . . . (I)t’s a woofters disease. If you’re a woolly-woofter, you get what you deserve. . . . I would never employ a homosexual to teach at my school. I do not believe it’s a lifestyle that is alternative – I believe it’s evil, intrinsically. (Cited in Walford, 1994: 85–86)

He also expressed (similarly) dated, prejudicial, and stereotypically inaccurate views about women, the wel­ fare state, and teachers who he saw as either socialist or communist. Confidentiality may encourage self-disclosure but it may also cause individuals to behave more antisocially (although the high number of children used in such research protocols may overexaggerate this effect). It is also the case that it may encourage participants to exag­ gerate their involvement in marginal behavior (in order to make themselves appear more heroic – bravado). This can often be ruled in (or out) with corroborative evidence or testimony (or lack of it). Studies have shown that people are not overly con­ cerned about their data being disclosed to others if they know, in advance, that this will be the case. (After all, if they were that concerned about it, then they would not have agreed to participate in the research.) What they are concerned about, however, is that if a statement of con­ fidentiality is made, it will be honored. People do not simply need statements of confidentiality; they need to see how those statements will be honored, which brings us to the practicalities of ensuring confidentiality.

Practical Issues in Ensuring Confidentiality The British Sociological Association’s ‘Statement of Ethical Practice’ (September 2009) mentions a number of proce­ dures used by researchers to ensure confidentiality: Where possible, threats to the confidentiality and anonym­ ity of research data should be anticipated by researchers. The identities and research records of those participating in research should be kept confidential whether or not an explicit pledge of confidentiality has been given. Appropriate measures should be taken to store research data in a secure manner. These may include the removal of identifiers, the use of pseudonyms and other technical means for breaking the link between data and identifiable individuals such as ‘broadbanding’ or micro-aggregation. (British Sociological Association, 2009)

These (and others) can, basically, be broken down into procedures for quantitative data, and procedures for quali­ tative data:

Procedures for Quantitative Data One (effective) way of anonymizing personal (usually sur­ vey) data is to replace personal identifiers with codes. As well as using codes for contact information, codes can also be used for personal descriptors, such as race, gender, and occupations. And so when a researcher/analyst is looking at the data, he or she is simply looking at responses for individuals belonging to a particular category and they do not know the descriptors to which those categories relate. A variation on this is the link file system. Here, researchers create a file containing the participants’ per­ sonal details, with a code beside each (record). They also create a separate file containing the substantive (usually questionnaire) responses, with a different code beside each record. A third file (the link file), containing the two sets of codes, is then deposited with a third-party institution (Table 1). In this way, even if someone is able to obtain both the personal data file and the questionnaire response file, he or she would not be able to link the two sets of data. When using this system, it is important to keep backup copies of the files, especially the link file, which can be deposited with a fourth party. Where institutions fre­ quently collaborate, they could keep each others’ link files in a reciprocal arrangement. When the issue is of a particularly sensitive nature, it may be possible to use what is known as the randomized response technique. Here, various responses (e.g., one’s number of sexual partners) are represented by colored balls of varying numbers. These balls are then placed into

Confidentiality of Sources in Social Research

565

Table 1 Link file system Personal identifiers

Link file

Name. . .

Code

PI Code

QR Code

Code

Responses

Taylor. . . Smith. . .

6060 4251

6060 4251

842 369

842 369

Q1: yes; Q2: no. . . Q1: no; Q2: yes. . .

a randomizing device, which allows them to be displayed to the respondent but not the interviewer. Respondents are then asked to indicate the location of the colored ball that represents their response. By knowing how many balls of each color are in the device, and the probability of them appearing in each location, it is possible to calcu­ late the degree to which the actual frequencies differ from chance and therefore the frequency of the (usually sensi­ tive) attitude or behavior. Another frequently used statistical device is error inoculation. This involves substituting a random number of random responses for a given number of respondents, who are also chosen at random. Because the investigator knows the number of random responses that have been substituted and the parameters of the substitutions, he or she can correct for this, statistically, in the final analysis. This gives participants some sense of security in that they know at least some of their responses are likely to be replaced by spurious information. However, this technique does have the drawback (as with the randomized response technique) of requiring a fairly advanced knowledge of statistics, and it relies on participants believing that the protocol will be effective and implemented by the researcher. (Participants may reason that if a researcher knows the parameters of the error he or she is introducing (into the data), then all he or she has to do, to get back to the original data, is to filter those same errors out.) It does, however, mean that if the information is stolen, the thief is taking a gamble as to how much of the information is actually genuine. Where the mere deletion of personal identifiers is not sufficient to ensure confidentiality, researchers can use a technique known as microaggregation. Here, data sets of average individuals are created for aggregates of particular individuals. This does not affect descriptive or inferential statistics, but it does ensure that individuals cannot be identified through deductive disclosure. Clearly, this tech­ nique is not suitable for research that may need to identify characteristics of actual rather than typical individuals. If all the previously described methods seem unneces­ sarily complicated, one can simply report the data in gross categories, such as postal code areas rather than individual streets, class years rather than actual classes, factories rather than specific shifts, and wage bands rather than actual wages. This is known as broadbanding. The problem with this approach is that once the information has been

Question responses

aggregated (assuming that the original information have been discarded), one cannot then go back and reaggregate the data, in different permutations, to test other hypotheses.

Procedures for Qualitative Data and the Dangers of Deductive Disclosure Although researchers ought to ensure that their field notes are anonymized, if they are collecting data in the field on an ongoing basis (e.g., in an ethnography or participant observation, or even a nonparticipant observa­ tion), then it may be necessary to use participants’ real (first) names (in order to keep track of individuals over time, as well as to cross-reference activities, conversa­ tions, and relationships with other participants). For this reason, participant observers often use their subjects’ initials. Even if a researcher does use pseudonyms, there is the possibility of duplication, particularly if participants are given the option of supplying their own name/pseudo­ nym. Even then, this may still not be enough to prevent individuals from being identified, particularly if they have a uniquely identifiable set of biographical characteristics (deductive disclosure). Researchers need to take special care when research­ ing a particular family or group of individuals. Not only is there the danger that the family/group can be identified from the characteristics of that family/group but also once one family/group member has been identified, it may be possible to identify others (by their association to this individual). This is known as record linkage. An example of this can be seen in Finlayson’s study of the ‘Dack’ family, conducted on behalf of the Eugenics Record Office. Although the name ‘Dack’ is a pseudonym, Finlayson consistently uses the same pseudonyms to refer to members of the same family; thus, once one discovers the identity of one family member, one knows the family name of all its members. Moreover, Finlayson states that the Dacks are Irish immigrants, which may mean that the family’s real name is ‘MacK. . .’ or ‘MacD. . .’ (as many Irish names begin with ‘Mac’). Finlayson’s work also contains clues to the possible forenames of some family members. For example, we are told that James Dack is commonly know as ‘Rotten Jimmy,’ Liza Dack is often referred to as ‘Old Liz,’ Rebecca Dack is known as ‘Becky,’ Catherine Dack is

566 Confidentiality of Sources in Social Research

known as ‘Kit,’ and Maggie Dack is often referred to as ‘Crazy Maggie.’ Given that these are quite common con­ tractions of the respective names, we can deduce that these are probably the people’s real (fore) names (as are, probably, all the forenames used in this paper). Finlayson also refers to records and sources held by other institutions (the army, military institutions, church records, hospital records, etc.), so presumably, one could also identify individuals by accessing these records. For example, John Dack, had an attack of fever at the age of twenty; following that he became dull and indifferent and his memory deteriorated. The Civil War broke out about this time, and he enlisted, declaring he was going to be a captain. One day on guard duty he got the idea the rebels were after him, so he threw down his gun and started to run. The government records show that he was then sent to an insane asylum and died about a month later, aged twenty-four. (Finlayson, 1916: 13)

With a little investigation, it would not be too difficult to identify at least some members of this family and, from there, others. Some of the biographies contain enough personal information to be able to identify the relevant individuals without too much difficulty. Although some members of this family were engaged in criminal activity, one gets the impression that Finlayson did not feel obligated to keep their identities that confidential. This is in sharp contrast to the ethics of modern researchers which brings us on to the following question: What happens when a researcher is forced to go back on a promise of confidentiality by law enforcement officers or other individuals?

Challenges to Confidentiality Legal In the United States, ‘‘[t]he state has the power to subpoena witnesses and compel them to give evidence when it has reason to believe that such evidence is relevant to a possible or pending criminal case’’ (Kershaw and Small, 1972: 273). This is similar to the powers afforded to the British police under the Police and Criminal Evidence Act, 1984 (PACE). Under the Act, police can gain access to personal records if it is for a ‘serious arrestable offense.’ If an assurance of complete anonymity has been given, then the police can still gain access to the material, but they must get a court order, and in order to do so, they must satisfy the courts that the material is ‘relevant’ and of ‘substantial’ value to the investigation. The criteria are: (a) that a serious arrestable offense has been committed; and (b) that there is material on the premises specified in the application which is likely to be of substantial value (whether by itself or with other material) to the inves­ tigation of the offense; and

(c) that the material is likely to be relevant evidence; and (d) that it does not consist of or include items subject to legal privilege, excluded material or special proce­ dures material. (PACE, 1984: s8)

It is important to appreciate that in both the United Kingdom and the United States, law enforcement authorities do not have a right to confiscate material on a whim; they must have at least some legal justification for doing so. If a researcher believes that an order to confiscate their data, or force them to testify, is unjustified, then they are within their rights to mount a legal challenge. Of course, if a researcher writes a book detailing what he or she has seen in a criminal commu­ nity, then this is likely to be taken as justification for believing that he or she may well have evidence of criminal activity. The (test) case frequently quoted is that of Branzburg v. Hayes [408 U.S. 665 (1972)]. Branzburg was a reporter who had written a piece on the manufacture, sale, and use of drugs in Jefferson County, Kentucky. He was subpoe­ naed to appear before the grand jury and asked to identify those individuals who he had seen engaging in such activities. He appeared before the grand jury but refused to answer any questions. He wrote a similar article about drug use in Franklin County, Kentucky. Again, he was subpoenaed to testify, but this time he did not even turn up. Pleading the First Amendment (freedom of expression), he argued that it would ‘‘destroy the relationship of trust which he presently enjoys with the drug culture.’’ The court held that although the First Amendment protected him from identifying his sources, it did not protect him from being forced to testify as to what he had seen. The Branzburg decision has set the precedent for all similar, subsequent cases. This has led researchers to forward the argument that the researcher–participant rela­ tionship ought to be afforded the same statutory privilege as that of the lawyer–client, clergyman–penitent, husband– wife, and even doctor–patient or journalist–source relation­ ships. The first three are protected in all U.S. states, the doctor–patient relationship is protected in most states, and the journalist–source relationship is protected in a few states. (This is mirrored by U.K. law.) In order to have privileged status, a relationship has to satisfy the following four criteria, as laid down in Wigmore’s Evidence in Trials and Common Law: 1. The communications must originate in a confidence that they will not be disclosed. 2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one that in the opinion of the community ought to be sedulously fostered. 4. The injury that would inure to the relations by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Confidentiality of Sources in Social Research

It is generally accepted that a researcher–participant relationship can satisfy the first two criteria quite easily; the third possibly; and the fourth criteria, at best, on a case-by-case basis. Therefore, the researcher–participant relationship does not (and probably never will) have statutory privilege status under U.S. common law. In general, the courts prefer to apply some kind of balancing test, usually a test of public interest. Indeed, in the cases following Branzburg, the U.S. courts have been quite generous in allowing journalists (and, although untested, probably researchers as well) to keep the iden­ tity of their sources confidential, even when those sources granted them access to settings in which criminal activ­ ities were taking place. Researchers must also consider that if participants are in receipt of state benefits/welfare and receive payment to participate in the research, this could affect their benefits. It is not unheard of for courts to subpoena a researcher’s records in order to identify such individuals. The most famous example of which is the study of work­ ing poor conducted by Kershaw and Small, on behalf of the U.S. Office of Economic Opportunity. In this case, the researchers were particularly concerned that if families became aware of the fact that the prosecutor’s office was investigating the case, they may drop out. Although the vast majority of researchers and jour­ nalists subpoenaed to testify, or produce their notes in court, have been investigating deviant or criminal beha­ vior, it is not unheard of for the courts to subpoena the victims of (unreported) crime in order to compel them to testify. Researchers should thus be cautious about implying to participants that any (confidentiality) agreements are sacrosanct and that they offer participants complete pro­ tection, even in the face of legal challenges. (Even though studies have shown that participants often believe this to be the case.) For this reason, it is important to seek legal advice regarding what one’s position is likely to be, in the event that the authorities might wish to confiscate one’s research data, or compel one to testify in court, for the country and/or state in which one intends to conduct one’s research. This article should not be taken as legal advice on the subject, merely a cursory pointer to the relevant law as it currently stands in the United States and the United Kingdom. Other Interested Parties The list of other parties who may be interested in one’s research includes: ‘special interest’ groups [driven by] monetary gain, reli­ gion or politics or racism, journalistic reputation, or simple antipathy to bureaucracy, ‘commercial’ criminals (potential blackmailers), unscrupulous businesses, those

567

with axes to grind . . . publicity seekers . . . anti-authority activists . . . hacker(s) [looking to] . . . take on the techni­ cal challenge of gaining access and ‘cocking a snook’ at authority . . . combined with a wish to win recognition [or] . . . self-justifying posture of having done it for the public good by exposing the weaknesses in the security etc. Such persons could be allied to journalists. (British Computer Society, 1991: 12–13)

To this, we can also add salespeople, bill collectors, and commercial rivals. Threats from businesses, however, are likely to be minor, given the fact that more useful (for businesses) personal data (in the form of mailing lists) can be readily purchased from other sources. Similarly, it is not unheard of for administrators and other staff (working in the organization in which one is conducting the research), to attempt to gain access to a researcher’s data/field notes. Here, it is perhaps worth reminding researchers (who conduct research in the United Kingdom) of their obliga­ tion under the Data Protection Act, 1998, and some of the ways in which new technology can be used to protect data. Biometric security devices (which use physical charac­ teristics rather than passwords or PIN numbers) have long been heralded as one way to prevent unauthorized access to buildings or data (Parliamentary Office of Science and Technology, 2001: Postnote No 165). Physical characteris­ tics such as fingerprints, hand geometry, palm vein patterns, retina scans, iris scans, face recognition, and voice analysis are all thought to be unique enough for this purpose (P.O.S.T, ibid). A number of companies produce fingerprint recognition devices/software that can be used to restrict access to files (and applications) in place of passwords. In such cases, it is not necessary to record to whom the bio­ metric data belongs merely that it is an individual who is authorized to have access to the system/data (P.O.S.T, ibid).

Academics (Issues of Validity, Etc.) As previously discussed, when the topic under investiga­ tion is of a sensitive nature, there is a case to be made for the fact that confidentiality may produce more candid responses. It may be argued (although weakly) that mak­ ing participants aware of the possibility that other researchers may be able to access the data, could have an impact on their willingness to participate in the research (or what they are willing to say). The need to be able to replicate research (in order to verify it is valid and reliable) is one which directly con­ flicts with the principal of confidentiality, as the American Psychological Association guidelines point out: 8.14 Sharing Research Data for Verification (a) After research results are published, psychologists do not withhold the data on which their conclusions are

568 Confidentiality of Sources in Social Research based from other competent professionals who seek to verify the substantive claims through reanalysis and who intend to use such data only for that purpose, provided that the confidentiality of the participants can be protected and unless legal rights concerning proprietary data preclude their release. This does not preclude psychologists from requiring that such indi­ viduals or groups be responsible for costs associated with the provision of such information. (APA, 2009)

However, as one can see, confidentiality takes precedent. If researchers are ever able to establish that the researcher–participant relationship ought to have statutory privileged status (which seems unlikely), there is a danger that it may be used to prevent other researchers from gaining access to their data. Even without such privilege, researchers can fall back on ethical guidelines and argue that, because they have promised their participants con­ fidentiality, it would be unethical to disclose any personal details about their participants. One can envisage a situa­ tion in which an investigation may be undermined because it is not possible to verify the data for precisely this reason. There is also the danger that ‘‘confidentiality’’ could be used to cover up unprofessional or unethical practices with regard to the way in which participants have been recruited, any inducements they may have been offered to participate (in the research), any pressure that may have been placed on them to give a particular response, and any irregularities in the data-gathering process. Researchers may also use it to prevent access to a parti­ cularly lucrative source of information (protectionism).

Circumstances in Which a Breach of Confidentiality May be Justified Preventing Harm/Protecting Others It is often the case that researchers are placed in a situation in which their loyalties are divided (and tested). Consider, for example, the situation in which a researcher is con­ ducting research in a prison and hears of an escape, a plan to harm an individual, or something that might impact the security of the institution. Does the researcher have an ethical obligation to prevent harm to others (society, the prison guards, and the victims of the planned attack) that overrides any assurances of confidentiality he or she has given to the inmates? Most people would say yes. With regard to issues such as child abuse, research­ ers in the United States have a legal duty to report such incidents. Similarly, in the United Kingdom, most researchers who work with children or vulnerable indi­ viduals would accept that they have at least a moral obligation to do the same. However, in doing so, it is important to follow the correct procedures, which

ought to include obtaining the consent of the alleged victim. Similarly, under public health reporting laws, indivi­ duals are required, in all U.S. states, to report all incidents of AIDS and, in most states, to report incidents of HIV infection. Obviously, this has implications for confidenti­ ality agreements made with members of those populations likely to (or engage in activities that makes them likely to) contract AIDS or to be HIV positive. Some protection (from subpoena), however, is avail­ able to researchers under the Public Health Service Act (Amendment of 1974), 42 UCS 300v (1982). Under the Act, anyone working with those who may have mental health problems can register for a certificate of confiden­ tiality from the Public Health Service that will give them (limited) protection from a subpoena. It must be remembered that, in the United States, having AIDS or being HIV positive can have implications for a person’s ability to obtain health insurance and, consequently, secure employment. It must also be remembered that some of these individuals may have engaged in illegal activity (e.g., injecting drugs or under­ age sex) in order to have contracted the virus/disease. This leads us to the following question: What does a researcher do if they learn that a research participant intends to harm or kill themselves? Is it right for them to report this to the appropriate authorities? Before the decriminalization of suicide in the United Kingdom, (in the Suicide Act of 1961), this would have also had legal implications. Even today, the intention to harm one­ self can be considered justification to detain that person (as a danger to him- or herself or others) under the terms of the UK’s Mental Heath Act (1983). In reporting this to the authorities, a researcher may prevent the person from harming him- or herself, but in doing so, they have betrayed the confidence of that indivi­ dual in a way that goes to the very heart of what confidentiality means. In such situations, the best option for a researcher is to perhaps counsel the person to seek help or inform the person that he or she feels obligated to contact the relevant authorities and ask the person if they agree that this is the right thing to do. Informants Wanting to Own the Data or be Identified Clearly, maintaining confidentiality is not always the right thing to do. We have discussed how distressing it can be for some participants to see their account attrib­ uted to someone else (a pseudonym). Some participants actually take this one step further and ask to be identified with the subject of the research. One book on the Greenham Common Women (a group of women who set up camp outside the Greenham Common airbase as a protest against the United States stationing nuclear

Confidentiality of Sources in Social Research

missiles there) used photographs and testimonies from the women themselves, who were credited as ‘‘contributors’’, by the authors/editors. The authors would, undoubtedly, argue that since these women were willing to be identified with the protest, they would be happy to be identified in a book documenting the protest. Other examples include a study in which a gay couple who were out and proud expressed a desire to be identi­ fied as such, and a book of emergency services personnel, involved in rescue operations following 9/11 (the terrorist attacks which took place on September 11, 2001), who were willing to have their photographs taken, and to be identified with the work they did. However, it is important not to assume that just because the research may be something for which parti­ cipants ought to be proud, they will necessarily want to be identified. As always, the golden rule is to ask them. The following testimony (from a survivor of child sex abuse) demonstrates just how much of a minefield this issue can be and how important it is to ask participants how they feel about being identified: It’s such a disappointment not to be able to use my own name. I’ve earned the right to own my words, my journey. I feel angry at the situation, denied what is mine by birthright – my name connected with my truth. Strange, so much of the journey has been a ‘naming’ of shadows. . . And now I must place my own name back in the shadows. . . (‘a brave contributor’ cited in Bass and Davis, 2002: 357)

Out of respect, the pseudonym given to this woman by Bass and Davies has not been used here, and the circum­ stances of this situation mean that it is not possible to know who she really is. The publisher, editor and myself hope that this affords her as much dignity and respect as her testimony deserves, and does not compound the ill feelings expressed therein. See also: Confidentiality, General Issues of; Conflict of Interest; Discourse Ethics; Journalism Ethics; Privacy, Ethics of; Right to Know and Right Not to Know; Trust.

Further Reading Bass E and Davis L (2002) The Courage to Heal: A Guide for Women Survivors of Child Sex Abuse. London: Vermillion. Benedict R (1961) Patterns of Culture. London: Routledge and Kegan Paul. Bok S (1984) Secrets: On the Ethics of Concealment and Revelation. Oxford: Oxford University Press. Bond K (1978) Confidentiality and the protection of human subjects in social science research: A report on recent developments. American Sociologist 13: 144–152. Boruch RF and Cecil JS (1979) Assuring the Confidentiality of Social Research Data. Philadelphia: University of Philadelphia Press. British Computer Society (1991) 1991 Census of Population: Confidentiality and Computing. London: HMSO. Finlayson AW (1916) The Dack Family: A Study in Hereditary Lack of Emotional Control. Eugenics Record Office Bulletin No. 15.

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Grinyer A (2002) The anonymity of research participants: Assumptions ethics and practicalities. Social Research Update 36: 1–4. Kershaw DN and Small JC (1972) Data confidentiality and privacy: Lessons from the New Jersey Negative Income Tax Experiment. Public Policy 20: 257–280. Kimmel AJ (1988) Ethics and Values in Applied Social Research. Newbury Park, CA: Sage. Klockars CB and O’Connor FW (eds.) (1979) Deviance and Decency: The Ethics of Research with Human Subjects. Beverly Hills: Sage. McNamee M, Oliver S, and Wainwright P (2007) Research Ethics in Exercise Health and Sports Science. London: Routledge. Melton GB and Gray JN (1988) Ethical dilemmas in AIDS research. American Psychologist 43(1): 60–64. Nejelski P and Finsterbusch K (1973) The prosecutor and the researcher: Present and prospective variations of the Supreme Court’s Branzburg decision. Social Problems 21: 3–21. Postmes T and Spears R (1998) Deindividuation and antinormative behavior: A meta-analysis. Psychological Bulletin 123(3): 238–259. Walford G (1994) Ethics and power in a study of pressure group politics. In: Walford G (ed.) Researching the Powerful in Education. London: UCL Press. Wolfgang ME (1981) Confidentiality in criminological research and other ethical issues. Journal of Criminal Law and Criminology. 72(1): 345–361.

Relevant Websites http://www.aaanet.org/committees/ethics/ethcode.htm – American Anthropological Association, ‘Code of Ethics of the American Anthropological Association.’ http://www.aera.net/AboutAERA/ Default.aspx?menu_id=90&id=717 – American Educational Research Association, ‘Research Ethics.’ http://www.apa.org/ethics/code/index.aspx – American Psychological Association, ‘Ethical Principles of Psychologists and Code of Conduct.’ http://www.asanet.org/about/ethics.cfm – American Sociological Association, ‘ASA Code of Ethics.’ http://www.theasa.org/ethics/guidelines.htm – Association of Social Anthropologists of the UK and Commonwealth, ‘Ethical Guidelines for Good Research Practice.’ http://www.scutrea.ac.uk/library/beraethguide.pdf – British Educational Research Association, ‘Ethical Guidelines.’ http://www.bera.ac.uk/ethics-and-educational-research­ philosophical-perspectives – British Educational Research Association, ‘Ethics and Educational Research: Philosophical Perspectives.’ http://www.bps.org.uk/the-society/code-of-conduct/code-of­ conduct_home.cfm – British Psychological Society, ‘Ethical Guidelines and Support.’ http://www.britsoc.co.uk/equality/ Statement+Ethical+Practice.htm – British Sociological Association, ‘Statement of Ethical Practice for the British Sociological Association.’ http://www.law.cornell.edu/rules/frcp/Rule45.htm#Rule45 – Cornell University Law School, Legal Information Institute, ‘Federal Rules of Civil Procedure – Rule 45: Subpoena.’ http://www.edps.europa.eu/EDPSWEB/edps/EDPS/ Dataprotection – European Data Protection Supervisor, ‘Data Protection.’

570 Confidentiality of Sources in Social Research http://www.edps.europa.eu/EDPSWEB/webdav/site/ mySite/shared/Documents/Consultation/Opinions/ 2008/08-06-30_access_documents_EN.pdf – European Data Protection Supervisor, ‘Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents.’ http://www.ico.gov.uk/for_organisations/ data_protection_guide.aspx – Information Commissioner’s Office, ‘Data Protection Guide.’ http://www3.cancer.gov/confidentiality.html – National Cancer Institute, ‘Confidentiality, Data Security, and Cancer Research: Perspectives from the National Cancer Institute.’ http://www.parliament.uk/post/pn165.pdf – Parliamentary Office of Science and Technology, ‘Biometrics & Security.’ http://www.the-sra.org.uk/guidelines.htm#ethic – Social Research Association, ‘Ethical Guidelines.’ www.justice.gov/opcl/privacyact.html – U.S. Department of Justice, ‘DOJ Privacy Act Systems of Record.’ http://www.akd.uscourts.gov/reference/rules/frp/civil2004.pdf – U.S. District Court for the District of Alaska, ‘Federal Rules of Civil Procedure.’

Biographical Sketch Mark Taylor has an extensive background in data analysis/ research methods, including an ESRC recognized M.Sc. in Research Methods in the Social Sciences, a postgraduate diploma in Applied Research Methods, and several years’ experience of teaching research methods/data analysis at the university level. His qualifications also include degrees in Psychology (Lancaster and Colorado) and Criminology (University of Cambridge, Institute of Criminology), as well as a B/Tec National Diploma in Business and Finance (with distinction). As an undergraduate, he was awarded a place to study at the University of Colorado, Boulder. His first book (including the interactive CD-ROM and business supplement that accompanies it), the highly popular Interacting with Statistics, is designed as a course on statistical procedures for undergraduates and businesses managers. His sec­ ond book, What Does This Tell Us, follows this up by examining the various sources and methods available to social researchers. The book also includes a paper examining the press’ reporting of legal cases (using the Jeffrey Archer perjury trial), which is intended as an evaluation of the source, for legal and social scholars. This is the follow-up paper to his M.Phil. dissertation on the same, an edited version of which he hopes to publish in the near future.

Conflict of Interest M Davis, Illinois Institute of Technology, Chicago, IL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Adverse interest A private interest giving one a reason to act contrary to one’s duty as agent or trustee; not necessary for a conflict of interest, although a common cause. Agent A person authorized by another, the principal, to act on the principal’s behalf, and continuously subject to the principal’s control. Apparent conflict of interest A situation in which one does not have the conflict of interest in question but someone else would be justified in concluding that one does. Bias A deflection of judgment in a determinate direction; not necessary for conflict of interest. Conflict of commitments (duties or obligations) A situation in which one has at least two commitments (duties or obligations) and fulfilling one will make fulfilling the rest impractical; not necessarily a conflict of interest.

What is Conflict of Interest? A conflict of interest is a situation in which some person P (whether an individual or corporate body) is (1) in a relationship with another requiring P to exercise judgment on the other’s behalf and (2) P has a (special) interest tending to interfere with the proper exercise of judgment in that relationship. The crucial terms in this definition are ‘relationship,’ ‘judgment,’ ‘interest,’ and ‘proper exercise.’

Conflict of interests A situation in which two or more interests conflict, whether within one person or between persons; not necessarily a conflict of interest. Conflict of roles A situation in which satisfying the demands of one role precludes satisfying the demands of another role one also occupies; not necessarily a conflict of interest. Conflicting interests Same as conflict of interests; not necessarily a conflict of interest. Disloyalty Acting contrary to one’s duty as agent or trustee. Fiduciary A person having a duty to act in another’s behalf. Both agents and trustees are fiduciaries; fiduciaries can have a conflict of interest only if their duties involve exercising judgment. Trustee A person having a duty to act on another’s behalf, especially with respect to property, but not subject to that other’s control. Trustees are fiduciaries but not agents.

The legal distinction between agents and trustees is not important here. An agent is a fiduciary who is under the continual control of the principal (i.e., the principal may, at any time, issue new instructions). A trustee is not under similar control. For a time at least, the trustee does not have to do what the principal says. Thus, for example, the trustee of an estate, although bound by the instruc­ tions of the will she administers, is a trustee precisely because she is not subject to further instruction, either from those who established the trust or from its beneficiaries.

Relationship The term relationship (as used here) is quite general, including any connection between P and another person justifying that other’s reliance on P for a certain purpose. A relationship may be quite formal (e.g., that between an attorney and her client) or quite informal (e.g., that between friends). A relationship can last a long time (as familial relationships generally do) or only a minute (as when one directs a stranger to a distant address). The relationship required must, however, be fiduciary; that is, it must involve one person trusting (or, at least, being entitled to trust) another to do something for her – exercise judgment in her service.

Judgment Judgment (as used here) is the ability to make certain kinds of decision correctly more often than would a simple clerk with a book of rules and all, and only, the same information. Insofar as decisions do not require judgment, they are ‘routine,’ ‘mechanical,’ or ‘ministerial’; they have (something like) an algorithm. The decision maker contributes nothing special. Any difference between his or her decision and that of someone equally well trained would mean that (at least) one of them had erred (something easily shown by examining what they did). Ordinary math problems are routine in this way.

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Where judgment is required, the decision is no longer routine. Judgment brings knowledge, skill, and insight to bear in unpredictable ways. Where judgment is necessary, different decision makers, however skilled, may disagree without either being clearly wrong. Over time, we should be able to tell that some decision makers are better than others (indeed, that some are incompetent), but we will not, decision by decision, be able to explain differences in outcome merely by error – or even be able to establish decisively that the judgment of one decision maker is better than another’s. The social sciences have recently begun to study influences on judgment in a systematic and controlled way. They have discovered that good judgment is quite fragile. Even seemingly insignificant gifts or incentives can have significant effects. Anyone sufficiently adept in the exercise of judgment of a certain kind is competent in the corresponding field. Each profession is defined in part by a distinct kind of judgment. Accountants are especially adept at evaluating procedures for reporting finances, civil engineers are especially adept at predicting the likely serviceability of physical structures, teachers are especially adept at jud­ ging academic progress, and so on. Judgment is not only an attribute of professions. Any agent, trustee, or other fiduciary may exercise judgment. One may even exercise judgment in a relationship as mundane as watching a neighbor’s children while he answers the phone. However, not every relationship, not even every relationship of trust or responsibility, requires judgment. I may, for example, be asked to hold a great sum of money in my safe until the owner returns. I have a great trust. I am a fiduciary upon whom the owner may be relying for her future happiness. However, I need not exercise judgment to do what I should. My duties are entirely routine (however much the money tempts me). I need only put the money in the safe and leave it there until the owner returns and asks for it. I cannot have a conflict of interest in that role. Interest An interest is any influence, loyalty, concern, emotion, or other feature of a situation tending to make P’s judgment (in that situation) less reliable than it would normally be (without rendering P incompetent). Financial interests and family connections are the most common interests discussed in this context, but love, prior statements, gra­ titude, and other ‘subjective’ tugs on judgment can also be interests (in this sense). Thus, for example, a judge has an interest in a case if one of the parties is a friend or enemy, just as he would if the party were his spouse or a company in which he owned a large share. Friendship or enmity can threaten judgment as easily as can financial or family entanglements.

Training or experience can sometimes protect mem­ bers of an occupation from the effect of certain tugs on judgment. For example, would-be physicians quickly learn to view the body as a site of disease rather than sexuality. However, there do seem to be limits to what training and experience can accomplish. Thus, for exam­ ple, physicians have long preferred to send members of their own family to another physician rather than care for them themselves. They do that, in part at least, because they do not think medical training has prepared them to keep adequate professional distance between themselves and someone emotionally close to them. Previous gen­ erations of physicians saw the bad consequences of supposing that family ties have no tendency to affect professional judgment. Family ties seem to damage med­ ical judgment even though they tug in the right direction. What in fact constitutes a conflict of interest is an empirical question, always open to revision as new evi­ dence comes in. It is therefore a mistake to make a final list of what constitutes the relevant interests. We should not, for example, say that, by definition, a conflict of interest must involve a financial or family interest. Definitions cannot settle empirical questions. There are, of course, facts about a situation, such as loud noise or poor lighting, and even facts about a person, such as exhaustion or extreme anger, that, although ren­ dering otherwise competent judgment unreliable, do not seem to be conflicts of interest. How are we to distinguish such facts from ‘interests’? This is neither a morally important question nor one difficult to answer. The ques­ tion is not morally important because threats to judgment arising from loud noise, exhaustion, or the like should be treated much as conflict of interest should (i.e., avoided, escaped, or disclosed and managed). The question is not difficult because we can easily identify the conceptual boundary between, for example, loud noise or exhaustion, on the one hand, and the influences, loyalties, and the like that, on the other hand, create conflicts of interest. Conditions such as loud noise or exhaustion do not threa­ ten judgment in the way conflict of interest does. They make judgment unreliable by rendering it (temporarily) incompetent; we are ‘unable to think.’ We might then actually fail a test of competence we would otherwise pass easily. Conflict of interest does not work like that. We remain able to pass any test of competence we could otherwise pass. What conflict of interest affects are the ends in view, the evaluation of this or that means, and other matters of judgment within the bounds of competence. Proper Exercise What constitutes proper exercise of judgment is generally a question of social fact, including what people ordinarily expect; what P or the group P belongs to invites others to

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expect; and what various laws, professional codes, or other regulations require. Because what constitutes proper exercise of judgment is a social fact, it may change over time and, at any time, may have a disputed boundary. For example, architects today are supposed to consider sus­ tainability when designing a building; they had no such professional obligation as recently as 1990. What comprises proper exercise of judgment also var­ ies from one profession to another. For example, a lawyer who resolves every reasonable doubt in favor of an employer when presenting the employer’s case in court exercises her professional judgment properly; an indus­ trial chemist who does the same when presenting research at a conference does not. Chemists are supposed to serve their employer by serving the truth (not, like lawyers, to serve the truth by serving their employer). What comprises proper exercise of judgment may also vary from one employer to another. For example, one company may leave its employees free to choose their flight even though the company is paying for it; another may require employees to choose the least expensive flight consistent with arriving on time. Because employ­ ees are agents having a general duty not to waste their employer’s resources, and because choosing among flights generally involves judgment, the employees of the second company will have less room for conflict of interest than employees of the first. They will have less room for conflict of interest because their employer has restricted the domain of proper judgment more than the first did.

What is Wrong with Conflict of Interest? A conflict of interest is like dirt in a sensitive (mechanical) gauge. All such gauges contain some dirt, the omnipresent particles that float in the air. Such dirt, being omnipresent, will be taken into account in the gauge’s design. Such dirt does not affect the gauge’s reliability. However, dirt that is not omnipresent, the unusual bit of grease or sand, can affect reliability, the ability of this gauge to do what gauges of its kind should (and generally do) do. Such ‘special’ dirt might, for example, cause the gauge to stick unpredictably. Insofar as dirt affects a gauge’s reliability, it corresponds to the interests that create conflicts of inter­ est. Thus, a conflict of interest can be objectionable for at least one of three reasons. First, P may be negligent in not responding to the conflict of interest. We expect those who undertake to act on another’s behalf to know the limits of their judg­ ment when the limits are obvious. Conflicts of interest are obvious; one cannot have an interest without knowing it, although one can easily misjudge how much it might affect one’s judgment. Indeed, people with a conflict of interest often esteem too highly their own reliability. Insofar as P is unaware of her conflict of interest, she

has failed to exercise reasonable care in acting on another’s behalf. Insofar as she has failed to exercise reasonable care, she is negligent. Insofar as she is negli­ gent, her conduct is morally objectionable. Second, if those justifiably relying on P for a certain judgment do not know of P’s conflict of interest but P knows (or should know) that they do not, P is allowing them to believe that she is more reliable than she is. She is, in effect, deceiving them. Insofar as she is deceiving them, she is betraying their (properly placed) trust. Insofar as she betrays their trust, her conduct is morally objectionable. Third, even if P informs those justifiably relying on her of the conflict of interest, her judgment will be less trust­ worthy than it ordinarily is. She will still be less reliably competent than usual – and perhaps appear less compe­ tent than members of her profession, occupation, or avocation should be. Conflict of interest can remain a technical problem even after it has ceased to be a moral problem. Even as a technical problem, conflict of interest can harm the reputation of the profession, occupation, avocation, or individual in question.

Not Bias Conflict of interest is not mere bias. Bias (in a person) is a deflection of judgment in a definite direction. Bias, whether conscious or unconscious, is relatively easy to correct for. For example, we can discount for the bias (e.g., ‘take his opinion with a grain of salt’). Conflict of interest is not bias but a tendency toward bias. Correcting for a tendency is much more difficult than correcting for a bias. Consider our gauge again: Because of the special dirt in it, it has a tendency to stick. How do we correct for that tendency? Do we accept its first reading, strike the gauge once and then accept the new reading, strike it several times before accepting a reading, average all the readings, or what? How are we to know when we have what we would have had were the gauge as reliable as it should be?

Not Conflict of Commitments or Conflict of Roles A conflict of interest is not a conflict within one’s commit­ ments, obligations, or duties or between one’s roles but between some (special) interest and the proper exercise of competent judgment in accordance with some commit­ ment, obligation, duty, or role. Thus, for example, I do not have a conflict of interest just because (in a fit of absent­ mindedness) I promised to give a talk today after promis­ ing to attend my son’s soccer game scheduled for the same time. That conflict of commitments does not threaten my judgment (although I must decide between them).

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I would, however, have a conflict of interest if I had to referee at my son’s soccer game. I would find it more difficult than a stranger to judge accurately when my son had committed a foul. (After all, part of being a good father is having a tendency to favor one’s own child.) I honestly do not know whether I would be harder on him than an impartial referee would be, easier, or just the same. What I do know is that, like the dirty gauge, I could not be as reliable as a ‘clean gauge’ would be. The same would be true even if I refereed for a game in which my son did not play but I had a strong dislike for several players on one team. Would I call more fouls against that team, fewer (because I was ‘bending over backwards to be fair’), or the same as a similarly qualified referee who did not share my dislike? Again, I do not know. What I do know is that an interest, my dislike of those players, is sufficient to make me less reliable in the role of referee than I would otherwise be. Conflict of interest does not require a clash of roles; one role (referee) and one interest (a dislike of some players) is enough for a conflict of interest. Impartiality, Independence, and So On We often describe an inability to judge as someone less involved would as a loss of impartiality, independence, objectivity, or professional distance. Such descriptions often pick out a conflict of interest, but just as often they do not. One can, for example, fail to be impartial, inde­ pendent, or objective because one is biased or under another’s control.

What Can Be Done About Conflict of Interest? Virtually all professional codes, and many corporate or governmental codes of ethics as well, provide some gui­ dance on how to deal with conflicts of interest. Unfortunately, many say no more than ‘avoid all conflicts of interest.’ Such a flat prohibition probably rests on at least one of two mistakes. One mistake is assuming that conflicts of interest can always be avoided. Some certainly can. For example, a public prosecutor might, upon taking office, put his assets in a blind trust. He would then not know what special effect his official decisions would have on his finances. His ‘objective interest’ could not affect his judgment. He would have avoided all conflicts of interest arising from his investments. He cannot, however, avoid all conflicts of interest in that way. He cannot put all his interests, including family and friendships, into a blind trust. The prosecutor may not, for example, be able to avoid his office having a case in which a member of his family is the defendant’s attorney, a witness, or even the defendant.

The other mistake on which a flat prohibition of con­ flicts of interest may rest is the assumption that having a conflict of interest is always wrong. Having a conflict of interest is not like stealing money or taking a bribe. One can have a conflict of interest without doing anything wrong (e.g., the prosecutor does nothing wrong just because the defense has called the prosecutor’s mother as a witness). To have a conflict of interest is to have a moral problem. What will be morally right or wrong, or at least morally good or bad, is how one resolves that pro­ blem. There are at least three approaches to the problem (apart from trying to avoid those conflicts that should be avoided). Escape One approach to the problem posed by a conflict of interest is escape. One way to escape a conflict of interest is to redefine the underlying relationship. Thus, for exam­ ple, a prosecutor foreseeing certain conflicts of interest might ‘recuse’ himself – that is, establish procedures so that all litigation involving his assets, family, or the like that pass through his office bypass him. Another way to escape a conflict of interest is to divest oneself of the interest creating the conflict. If, for example, the conflict is created by ownership of stock in a certain corporation, one can sell the stock before making any official decision affecting it (and have nothing to do with the stock for a decent interval thereafter). Escape can be costly. Thus, to continue our example, recusing gives up the public advantage of having the prosecutor contribute to certain official decisions. The prosecutor will not even hear of matters he would ordi­ narily decide. Divesting avoids that cost, but perhaps only by imposing a substantial personal loss (because, for example, the prosecutor would have to sell a stock when its price was depressed). If the prosecutor cannot afford divestment, and recusal is impractical, he may have to choose a third way of escape – withdrawal from the underlying relationship: He may have to resign his office. Disclosure Another approach to resolving the moral problem posed by a conflict of interest is to disclose the conflict to those relying on one’s judgment. Disclosure, if sufficiently com­ plete (and understood), prevents deception. Often, disclosure also allows those relying on one to adjust their reliance accordingly (e.g., by seeking a ‘second opi­ nion’) or to change the relationship (e.g., by requiring recusal for a certain range of decisions). However, unlike escape, disclosure as such does not end the conflict of interest; at best it avoids negligence and betrayal of trust. Disclosure does not even do that unless (1) the person disclosed to is in a position to respond effectively to the

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conflict of interest disclosed, (2) he is competent to under­ stand the threat to judgment the conflict poses, and (3) the disclosure is in a form likely to alert him to the serious­ ness of the conflict. An inadequate disclosure may be no better than none. For example, a physician who discloses her interest in a treatment she is recommending with the words, ‘‘This is so good that I have invested my own money in the company,’’ has not properly disclosed the conflict of interest. Procedures for disclosure can be quite elaborate. For example, the City of Chicago requires every employee of the executive branch with significant responsibilities to fill out annually a 2-page form disclosing close relatives, business partners, and sources of outside income. The forms are open to public inspection. Disclosure may itself generate problems of privacy and confidentiality. For example, if a condition of holding a certain public office is that the official list everyone with whom she has a business relation, she may have to provide significant information about people who, having nothing to do with government, thought they could avoid having their business relations put into a public record.

Managing Managing is a third approach to conflict of interest. Although managing is often the resolution reached after disclosure, it need not be. Where disclosure is improper (because it would violate some rule of confidentiality) or impossible (because the person to whom disclosure should be made is absent, incompetent, or unable to respond in time), managing may still be a legitimate option. Suppose, for example, that the only surgeon in a hospital is called to the emergency room to operate on (what turns out to be) his former wife who, unconscious and near death, stands little chance of surviving unless he works quickly. Withdrawing would mean her death – and the end of large alimony payments. Disclosing the conflict of interest to her is impossible (because she is uncon­ scious) and would, in any case, be unnecessary (because if she were conscious, she would already know what he would disclose). Disclosing to the surgical team her rela­ tionship to him (including the alimony) would invade her privacy while making absolutely no contribution to get­ ting her informed consent. Perhaps the best the surgeon can do is to ask his team to watch him carefully, to keep an especially good record, and to call his attention immedi­ ately to anything that seems amiss, hoping his awareness of their watchfulness will curb any tendency in him to be careless with her. The best he can do is manage the conflict of interest. Managing is a partial realigning of interests, not enough to eliminate the conflict of interest but enough to make it seem likely that benefits will exceed the costs.

Disclosure is often the prelude to management – that is, the attempt to contain or channel the conflict of inter­ est so that allowing it is, all things considered, better than escaping it. Management has its costs – for example, the cost of a second opinion. Management also has its advan­ tages, especially where an expert, although admittedly less reliable than usual, would be difficult to replace (or actually irreplaceable), as in the case of the surgeon dis­ cussed previously. These costs and benefits will vary with circumstances. One cost does not. Tolerating a certain sort of conflict of interest tends to make it seem normal. What was an obvious conflict of interest today may soon come to seem a mere technical conflict and then nothing to worry about. The border between tolerable and intol­ erable conflicts of interest slowly moves until almost any conflict of interest seems manageable. Unique conflicts of interest may be managed, but reoccurring conflict should be avoided. The Best Approach What should be done about a conflict of interest depends on all the circumstances, including the relative impor­ tance of the decision in question; the alternatives available; the wishes of the principal, client, employer, or the like; the law; and any relevant code of ethics, professional or institutional. Some conflicts should be avoided, some should be escaped, others should be dis­ closed, and a few should be managed. Generally, conflicts of interest are easier to tolerate when they are ‘potential’ rather than ‘actual.’ A conflict of interest is potential if and only if P has a conflict of interest with respect to a certain judgment but is not yet in a situation in which he must make that judgment. Potential conflicts of interest, like time bombs, may or may not go off. A conflict of interest is actual if and only if P has a conflict of interest with respect to a certain judgment and is in a situation in which he must make that judgment. In a friendly divorce, for example, the parties may prefer a less expensive proceeding, in which they share a lawyer, to a more expensive one in which each party has its own. The lawyer who undertakes to represent both parties in such a divorce can, of course, foresee that a dispute about the house, car, savings account, or dog may become difficult. From the beginning, the lawyer would be risking a moment when trying to put her professional judgment at the disposal of one party while trying to do the same for the other would affect the judgment in ways difficult to predict. That is, she would have a potential conflict of interest as soon as she agreed to represent both parties. However, while the divorce remained friendly, she would have no actual conflict of interest. The lawyer should, of course, be sure that the parties understand the risks, as well as the benefits, of sharing a

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lawyer before she agrees to such an arrangement. Among the risks is her precipitous withdrawal from the proceed­ ing should the divorce become difficult. She would have to withdraw if the divorce became difficult because an actual conflict of interest would make it impossible for her to serve her clients as her profession wants lawyers to serve clients. Professional standards take precedence over the clients’ wishes.

Appearances, Loyalties, Gifts, and Bribes The Appearance of Conflict of Interest Many potential or actual conflicts of interests are, out of a politeness or timidity, misdescribed as ‘apparent conflicts of interest’ or ‘merely apparent conflicts of interest.’ The term ‘apparent conflict of interest’ should not be wasted in this way. A conflict of interest is (merely) apparent if and only if P does not have the conflict of interest (actual or potential), but someone other than P, not knowing what P knows, would be justified in concluding (however tenta­ tively) that P does have the conflict. Apparent conflicts of interest (strictly so-called) are no more conflicts of inter­ est than counterfeit money is money. An apparent conflict of interest is nonetheless objec­ tionable – for the same reason that any merely apparent wrongdoing is objectionable. It misleads people about their security, inviting unnecessary anxiety and precau­ tion. Apparent conflicts should be resolved as soon as possible. An apparent conflict of interest is resolved by making available enough information to show that there is no actual or potential conflict. One might, for example, answer a charge of financial interest by showing that one does not own the property in question. Where one cannot make such a showing, the conflict of interest is actual or potential, not (merely) apparent.

Although your greed is certainly an interest conflicting with your employer’s interests, conflict of interest does not explain why you took the money or what was wrong with taking it. You did not need to exercise judgment on your employer’s behalf to know that you should not embezzle your employer’s money. There is a conflict of interests here – that is, a conflict between one of your interests and one of your employer’s – but no conflict of interest. Gifts and Bribes Gifts are an important subject in any discussion of conflict of interest. Gifts are a way of recognizing and reinforcing friendship. Because gifts have this function, they can also establish bonds of interest where none should exist – for example, between a judge and a litigant, or between a company’s head of purchasing and the company’s most ambitious supplier. For that reason, many governments, businesses, and other institutions have policies limiting business gifts to mere tokens. Some forbid such gifts altogether (because even tokens can affect judgment). A ‘gift’ unlawfully demanded is a bribe (or ‘grease payment’), not a gift (strictly speaking). Bribes as such do not create a conflict of interest in the taker. A bribe is a payment (or promise of payment) in return for doing (or promising to do) something one should not do (or, at least, should not do for that reason). Where bribes affect judg­ ment (as they often do), they affect it in a definite way – that is, in the direction promised. Affecting judgment in a definite direction creates a bias, not a conflict of interest. Bribe offers, however, often do create a conflict of interest. I may, for example, be so enraged by your offer of a bribe that I can no longer reliably judge your skill.

History of Conflict of Interest Disloyalty Disloyalty is neither necessary nor sufficient for conflict of interest. Disloyalty and conflict of interest are only loosely connected. One can be loyal and have a conflict of interest. A loyal agent who cannot reasonably avoid or escape a conflict of interest respecting some affair on which her judgment is to be deployed would disclose the conflict to her princi­ pal. Having fully disclosed it and received the principal’s informed consent to continue as before, she may continue, even though her judgment remains less reliable than it would otherwise be. There is no disloyalty in that; how­ ever, the conflict of interest remains. One can also be disloyal without having a conflict of interest. For example, if, being too greedy, you embezzled money from your employer, you are disloyal. You con­ sciously failed to act as a faithful agent of your employer.

Discussions of conflict of interest too frequently begin with the biblical quotation, ‘Can a man have two masters? Can a man serve both God and Mammon?’ This is the wrong way to begin. The reason one cannot have two masters is that a master is someone to whom one owes complete loyalty, and complete loyalty to one excludes any loyalty to another. Having only one master is a strategy for avoiding all conflict of interest, but it is a strategy making the concept of conflict of interest unin­ teresting (i.e., a term another might conveniently replace). We must worry about conflict of interest as such only when having two or more masters – or, to say it without paradox, having none – is normal. Conflict of interest is an interesting concept only where loyalties are regularly and legitimately divided – for example, where individuals typically have a family, relatives, partners in business, many clients, and the like independent relationships.

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Beginning a discussion of conflict of interest with that biblical quotation makes conflict of interest seem a con­ cept at least two millennia old. In fact, the term and, apparently, the concept are barely half a century old. The first court case to use the term in something like our sense was decided in 1949 (In re Equitable Office Bldg. Corp., D.C.N.Y., 83 F. Supp. 531). The Index of Legal Periodicals had no heading for ‘conflict of interest’ until 1967; Black’s Law Dictionary had none until 1979. No ordinary dictionary of English seems to have had an entry for ‘conflict of interest’ before 1971. The first philosophical discussions of the term also date from approximately that time. ‘Conflict of interest’ seems to have begun as a mere synonym for ‘conflicting interests.’ This older term desig­ nated a clash between a public interest (e.g., impartiality in a receiver or trustee) and some private ‘beneficial’ or ‘pecuniary’ interest (e.g., a receiver’s hope of buying property at a bankruptcy sale he administers). The private interest was often said to be ‘adverse’ (i.e., opposed) to the public interest. Only in the late 1960s did lawyers begin explicitly to connect the term conflict of interest with judgment. This adverse-interest way of understanding conflict of interest can still be found, especially in medical ethics. Its disadvantage is that it tends to obscure conflict of interest arising from loss of professional distance – for example, where a physician is overly attached to a patient because the physician is the patient’s parent. The term conflict of interest began to appear in codes of ethics in the 1970s. Today, the term is so common that we would find doing without it difficult. However, if both the term and the concept of conflict of interest are as new as they seem to be, we are bound to ask, ‘Why now?’ So far, we have no authoritative answer. The history of ‘conflict of interest’ has yet to be written. See also: Confidentiality, General issues of; Confidentiality of Sources in Social Research; Homicide, Criminal; Loyalty; Trust.

Further Reading Adair R and Holmgren L (2005) Do drug samples influence resident prescribing behavior? A randomized trial. American Journal of Medicine 118: 881–884.

Carson Thomas L (1994) Conflict of interest. Journal of Business Ethics 13: 387–404. Davis M and Stark A (eds.) (2001) Conflict of Interest in the Professions. New York: Oxford University Press. Donaldson MS and Capron AM (eds.) (1991) Patient Outcomes Research Teams: Managing Conflicts of Interest. Washington, DC: National Academy Press. Luebke NR (1987) Conflict of interest as a moral category. Business and Professional Ethics Journal 6(Spring): 66–81. McMunigal K (1992) Rethinking attorney conflict of interest doctrine. Georgetown Journal of Legal Ethics 5(Spring): 823–877. Parley L (1995) The Ethical Family Lawyer: A Practical Guide to Avoiding Professional Dilemmas. Chicago: American Bar Association, Family Law Section. Porter RJ and Malone TE (eds.) (1992) Biomedical Research: Collaboration and Conflict of Interest. Baltimore: Johns Hopkins University Press. Rodwin MA (1993) Medicine, Money, and Morals: Physicians’ Conflicts of Interest. New York: Oxford University Press. Spece RG, Shimm DS, and Buchanan AE (eds.) (1996). Conflicts of Interest in Clinical Practice and Research. New York: Oxford University Press. Stark A (1995) The appearance of official impropriety and the concept of political crime. Ethics 105(January): 326–351. Thompson D (1993) Understanding financial conflicts of interest. New England Journal of Medicine 329: 573–576. Wells P, Jones H, and Davis M (1986) Conflicts of Interest in Engineering. Dubuque, IA: Kendall/Hunt.

Biographical Sketch Michael Davis is Senior Fellow at the Center for the Study of Ethics in the Professions and Professor of Philosophy, Illinois Institute of Technology, Chicago. Before coming to IIT in 1986, he taught at Case Western Reserve, Ohio, Illinois State, and the University of Illinois at Chicago. During 1985–86, he held a National Endowment for the Humanities fellowship. Since 1991, he has held – among others – four grants from the National Science Foundation to integrate ethics into technical courses. Davis has published more than 160 articles (and chapters); authored seven books: To Make the Punishment Fit the Crime (Westview, 1992), Justice in the Shadow of Death (Rowman & Littlefield, 1996), Thinking Like an Engineer (Oxford, 1998), Ethics and the University (Routledge, 1999), Profession, Code, and Ethics (Ashgate, 2002), Actual Social Contract and Political Obligation (Mellen, 2002), Code Writing: How Software Engineering Became a Profession (Center for the Study of Ethics in the Professions: Chicago, 2007); co-edited four anthologies: Ethics and the Legal Professions (Prometheus, 1986) and its second edition (Prometheus, 2009), AIDS: Crisis in Professional Ethics (Temple, 1994), and Conflict of Interest in the Professions (Oxford, 2001); and edited one other: Engineering Ethics (Ashgate, 2005). He received his Ph.D. (Philosophy) from the University of Michigan in 1972.

Confucianism K Yu, Hong Kong Polytechnic University, Hong Kong, China J Tao, City University of Hong Kong, Hong Kong, China ª 2012 Elsevier Inc. All rights reserved.

Glossary

Changqing 常情 Changqing, translated as common human sentiments, refers to the part of qing (sentiments, etc.) that people possess in common. It contrasts with qing, which may be more individualistic or idiosyncratic. De ㉆ De or virtue is based on the extension or development of qing (sentiments). De or virtue is cultivated and enhanced qing. Raw qing is not the same as virtue. Li 禮 The common English translation of the term li is ‘rites.’ Within the Confucian tradition, however, this term is frequently understood as ‘norms’ or ‘standards of behavior.’ It refers to a socially and cultural embedded understanding of morality, which may vary from time to time and across different societies. Ming 命 The terms xing, ming, and qing are closely related to one another. Ming refers to what is given by Heaven to humans. Xing refers to what humans receive from Heaven. Qing refers to the genuine inner states humans have that are expressed in various situations on the basis of their xing.

The Place of Qing in Confucian Ethics In this article, we outline the Chinese concept of qing 情, which can serve as a basis of morality. The concept of qing can be traced to Confucius and is sophisticatedly devel­ oped by early Confucians. Recently discovered bamboo texts including the Guodian Bamboo Texts and the Shanghai Museum Bamboo Texts, as well as classical collections of essays such as Liji (The Book of Rites), provide ample textual evidence of this line of thinking in Confucian ethics. Such a line of thinking may be different from that of the Song and Ming Neo-Confucians, but it is com­ monly shared by many major Confucian thinkers throughout the ages, such as Lu Jia (240–170 BCE), Su Shi (1037–1101), Gu Yanwu (1613–82), and Dai Zhen (1724–77). This line of thinking takes the natural inclinations, feelings, emotions, aspirations, etc. of human beings as having prima facie values on the ground that they constitute the essential raw materials from which human morality is to be crafted. It represents a sharp

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Ren ⅐ Commonly translated as ‘benevolence’ or ‘humanity,’ ren is understood in the Confucian tradition as the highest or the most inclusive form of virtue. Ren also has its basis in human qing. Qing 情 Qing refers to people’s genuine inner states. Such genuine inner states include emotions, desires, feelings, needs, inclinations, aspirations, and moral sentiments. Renqing 人情 Renqing is translated as human being’s genuine inner states or sentiments. Renqing can be the basis of human morality because it is common to all people, and it is closely related to human nature. Xing 性 Xing is commonly translated as ‘nature.’ In the Confucian discourse, it is not understood as the defining characteristics of human beings but, rather, refers to what human beings are endowed with. The xing of different human beings are basically the same, so it makes sense to talk of common human xing. Yi 義 Yi is also understood as ‘moral standard’ but does not have the social, cultural, and relativistic connotations of li. It is an ideal and absolute form of moral rightness, which the gentleman tries to attain.

contrast to the view that there is a marked division or even an antagonistic relation between human morality and natural human inclinations. Such a perspective that accords a central place to qing in human morality is also deeply rooted in commonsense Chinese morality. Terms such as qing 情 (sentiment), renqing 人情 (human senti­ ment), qingyi ㍔券 (sentiment-righteousness), and qingli 情理 (sentiment-reason) are still vibrant and deeply embedded in contemporary Chinese moral discourse. Expressions such as wufei renqing (‘it’s all a matter of human sentiment’), buwai renqing (‘nothing other than human sentiment’), heqing heli (‘in line with human senti­ ment and reason’), and qingzhi yijin (‘the supreme fulfillment of human sentiment and righteousness’) are still commonly used to refer to the basis for making moral judgments in everyday life. In investigating the foundation of morality, philoso­ phers often ask a number of questions, including the following: Is morality based on emotion or reason? Is morality objective (something to be discovered) or

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something to be constructed? Is morality universally valid or based on some contingent facts of life? The problem with this kind of dichotomized thinking is that we can find equally good arguments to support either of these positions, but at the same time we can also find problems with each. The Confucian view that we explicate in this article offers the insight that the answers to the previous questions do not simply lie in one end or the other. We argue that the Confucian qing-based conception is a philosophically more sophisticated and more tenable conception of ethics.

The Concept of Qing in Ancient Chinese Thought The term qing as it is used today is commonly translated as ‘emotion.’ A. C. Graham argues that the term in ancient China actually means something like ‘real situation,’ whereas the use of the term to refer to emotion is influ­ enced by Buddhist usage. We show in this article, however, that qing refers to the ‘real situation’ of one’s heart-mind, or one’s genuine inner state. This includes emotions, but it is not confined to emotions alone. It also includes natural inclinations, desires, feelings, as well as ethical aspirations. Translating qing as simply ‘emotion’ is to be avoided because qing is a much richer notion than ‘emotion,’ and it does not have the usual negative con­ notations associated with the word ‘emotion,’ such as being impulsive, irrational, passionate, uncontrollable, or temperamental. On the contrary, the term often has posi­ tive connotations. In the bamboo texts, it is said that ‘‘human qing are lovable. Though a person has done some­ thing wrong, he is not evil if he has beautiful qing’’ (Li, 2007: 138). Moreover, characters with the component ‘青’ usually denote something good. For example, water that is clear and pure is 清 (clear, pure); sky that is bright and clear is 晴 (bright, clear); grass that is lush and green is 噐 (lush, green); and a woman who is beautiful and refined is 倩 (beautiful, refined). The term qing 情 is closely related to the term xing 性, which is also closely related to the term ming 命 in ancient chinese thought. The content referred to by these three terms are very closely related. Ruan Yuan (1764–1849) explained the ancient meanings of xing and ming as follows: ‘‘What Heaven gives is ming; what human receives is xing.. . . Qing is inside xing, and not something separated and contrasted with xing. . . Qing is what moves in response to stimulation’’ (Ruan, 1997: 211–236). Whereas ming refers to what Heaven gives to human, xing refers to what human receives from Heaven. Likewise, whereas xing refers to what man possesses inside himself, qing refers to what comes out from him (his reactions to external stimulation on the basis of what he has inside himself).

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The word xing derives from the word sheng 生, mean­ ing born or life. It is originally written as 生 and derives its meaning from 生. Although the term xing is commonly translated as ‘nature,’ the term in ancient Chinese has not so much to do with the defining characteristics of humans, or with the essence of humans, but has more to do with the endowment of humans – what they are born with. This refers not just to the human condition of a human when she is born but also to the inherent tendency or capability that a human may display later in life, just as when we say the ben xing 本性 or inherent nature of a seed is to break the earth and grow. The terms xing and qing are thus closely related. Xing is an abstract concept, whereas qing refers to various con­ crete manifestations of xing. Qing are the responses a person has to the stimulations or situations she encounters on the basis of xing. The responses tell us as much about the situation as about the person herself. In short, conceptually qing is based on xing, but epistemologically we know xing through knowing qing. The relation between xing and qing is brought out clearly in the Guodian Bamboo Texts: Although people have xing, the heart-mind does not have fixed direction. It gets aroused when it encounters exter­ nal things. It gets into action when it finds something that is pleasing. It gets stabilized as a result of repeated prac­ tice. The energy for joy, anger, and sadness is xing. It cannot be seen on the outside until it is approached by external things. Xing comes from the mandate (ming). The mandate comes from Heaven. The Dao (Way) begins from qing. Qing begins from xing. The starting point is close to qing. The endpoint is close to yi (moral rightness). (Li, 2007: 136)

This is a very rich and important passage. It describes the dynamic nature of xing and brings out the relation between xing and qing. Xing is what we get from Heaven when we are born. It becomes manifested as qing when we find ourselves confronted with specific situations. It also emphasizes the Way as a project that can have no other starting point except qing. Yet qing is only the starting point of morality. It is not enough for us to simply affirm the value of qing or merely follow it in the hope that it will lead us to our ultimate aim of establishing morality. How common are the qing of different people? Because qing comes from xing, we talk about the commonality of xing first. From the Confucian perspective, xing is not exactly the same for everyone. As Confucius says in the Analects, The xing of people are similar, through repeated practice they become further different. (Analects, 17.2)

Just as there are individual differences with regard to xing, there are also individual differences with regard to qing.

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However, a large and significant part of human qing are basically common to all humans – that is why they are called renqing 人情 (human sentiment), changqing 常情 (normal sentiment), or ren ji changqing 人之常情 (normal human sentiment). What exactly are such human qing? It includes various inner states of the heart-mind of human beings: What is human qing? Delight, anger, sadness, fear, pre­ ference, disgust, and desire. All humans know these seven things without having to learn them. (Liji, ‘Liyun’)

These human qing, when properly expressed, have posi­ tive value. They become negative only when they are excessive or when they are expressed through improper channels. Humans have similar qing not just in the sense that they all have these seven qing; it also means that they commonly have similar qing for similar things: Human beings have six qing. Their eyes like to see beau­ tiful things, their ears like to hear good music, their noses like to smell fragrant scent, their mouths like to eat delicious food, their bodies like to have comfort and not to work, and they like clothes that are decorated, light, and warm. (Hanshi Waizhuan, 5.16)

In the newly discovered text Kongzi Shilun (Confucius’s Poetics), Confucius uses the expression ‘minxing guran’ (the inherent nature of the people) a number of times. He refers to the following: This is the nature of the people – when they see something beautiful, they want to go near it.. . . Money and gift cannot be discarded – this is the nature of the people. . .. This is the nature of the people – when they consider someone greatly worthy, they will revere the place he dwells. When they like a person, they also like what he does. The same is true for disliking a person. (Ma, 2001, slips nos. 16–24)

What has been described in this passage is the part of human qing that is commonly shared by all people. It is also called renqing 人情 or ren zhi qing 人之情, and it is to be distinguished from the kind of qing that may vary from one person to another, sometimes called siqing 私情 or private qing in later writings. Renqing, the qing that is common to all people, is to be contrasted with the qing that is idiosyncratic or impulsive. We can say that renqing has its origin in human nature, and siqing has its origin in individual differences or personal temperament. Because it is reasonable for people to act from their human nature, and renqing is a manifestation of human nature, the rea­ sonableness or value of renqing can be affirmed to the extent that human nature is affirmed, although it will remain an open question whether some of the siqing is reasonable or justified. It is on the basis of common renqing that the method of shu 恕, or extending from oneself to others in Confucian

moral cultivation, is practicable and justified. If the method of extending from oneself to others is based on one’s own subjective feelings, then the method does not work because the subjective feelings of one person and those that another person has may vary considerably. As a result, what is regarded as good by one may be regarded as bad by another, and the opposite is also true. However, renqing is the common and shared part of the human conditions and feelings, and inference based on this part of the human conditions and feelings can be safely applied to another person. Xunzi is talking about this common kind of qing (ren qing) in particular when he says, The qing of a thousand or ten thousand people is the same as the qing of one person. (Xunzi, ‘Bu Gou’)

It is on the basis of the common renqing that we can have some minimal knowledge of other people without having to know them personally. This is because renqing is the common and shared part of the human condition, and feelings that one can experience for oneself can be safely applied to another person. As well said by Shakespeare in Merchant of Venice, Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?

As previously observed, the concept of qing not only includes common human wants, needs, and feelings but also includes moral aspirations. The relationship between father and son is human nature.

This sentence from the Xiao Jing (The Book of Filial Piety) is quoted in Han Shu (History of Han Dynasty) as ‘‘The qing between father and son is human nature.’’ In a similar vein, the four sprouts of morality Mencius talks about – the hearts of compassion, shame, courtesy and modesty, and right and wrong – are all human qing. They are all regarded as part of human nature, as explained by Mencius: Whoever is devoid of the heart of compassion is not human, and whoever is devoid of the heart of shame is not human, whoever is devoid of a heart of courtesy and modesty is not human, and whoever is devoid of the heart of right and wrong is not human. The heart of compassion is the germ of benevolence; the heart of shame, of dutiful­ ness; the heart of courtesy and modesty, of observance and the rites; the heart of right and wrong, of wisdom. Man has these four germs just as he has four limbs. (Mencius, 2A6; as translated in Lau, 1984: 67)

Confucianism

What Mencius means is that although human beings may not always do the right things, they all share some com­ mon moral aspirations. A person can feel her own pain, but she can also feel the pain of another person. This does not mean that she will necessarily act to relieve the pain of the other person, but at least she has an uneasy feeling because her affective concern is aroused when she knows that another is suffering. Such an affective response to things or objects in the world is possible because of the heart of compassion with which she is born. This explains why, as a human being, she is capable of not just acting for her own interest; the interest of another person can also be a motivating force for her action, even though how strong this force is or how effective it is when the interest of another is in conflict with her own interest is another question. A person does not always act just for her own interests; she is at least sometimes able and willing to act in the interest of another person. According to Mencius, this is the heart of courtesy and modesty. However, when should a person insist on her self-interest and when should she yield to the interest of another person? Mencius’s answer is that at least in some cases we know what is the right thing to do. This is due to the heart of right and wrong. It is true that even when a person knows that something is right to do, she may not do it. However, if she knows that something is right and does not do it, she will feel shameful afterward. This is the heart of shame. Feeling uneasy in observing the suffering of other people, willing to consider the interest of another person, having a positive feeling with what is judged to be right, and feeling shameful in not doing what one regards as right are all part of the qing that people have in common. Consider the example of yielding a seat to another person. I feel less comfortable without a seat, and so I prefer to sit than not to sit. However, I can also feel uncomfortable when I see someone who is disabled and who has to stand because she does not have a seat. I can feel her discomfort and difficulty. This is the heart of compassion. Of course, I do not always give up my seat to another person. However, sometimes, at least for some persons, I am willing to give up my seat just because I am also concerned about the comfort or the well-being of this person. This is the heart of courtesy and modesty. However, when should I yield my seat to another person, and when is it morally perfectly all right for me not to yield? What Mencius is suggesting is that at least in some cases we do know the right answer. There may be gray areas, but there are also clear-cut cases (e.g., old people, disabled persons, and pregnant women, on the one hand, and strong middle-aged men and young adults, on the other hand) in which we do know what will be the right thing to do. This response comes from the heart of right and wrong. If we judge that we should yield the seat, it does not mean that we will do so, but it means that if we do not do so, we will feel some degree of shame afterward.

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This is the heart of shame. All four inner states are part of human qing. They are just ‘natural’ and common human responses. In the previous discussion, we demonstrated that the term qing in early Confucianism has a very rich meaning. Basically, it refers to the genuine inner states one has when one comes into contact with the external world. Qing includes emotions, but it also includes desires, feelings, inclinations, affections, natural sympathy, and other aspira­ tions. We now consider the ethical relevance of qing for the development of morality and moral judgment. We make three claims. First, qing is not value neutral. It has positive value, and it has to be affirmed. However, the value of qing is neither absolute nor infinite. Second, qing is the founda­ tion on which virtue is to be developed. In other words, virtue is a higher state of qing. Although the existence of qing without virtue is possible, the existence of virtue with­ out qing is impossible. Virtue has to be developed out of our sincere inner states, which are our qing. As Confucius says in The Great Learning, virtue is genuine only when it is ‘‘like loving beautiful things, and hating bad smells.’’ Hence, hypocrisy or insincerity is the greatest enemy of virtue. Third, human qing are the raw materials that provide a basis for constructing a morality fit for human beings and their xing. This implies that a morality that is incompatible with human qing cannot but must be an inadequate mor­ ality. Human morality is a human construct, but it is a human construct that has a naturalist foundation in human qing. Next, we consider the first claim.

The Value and Limitation of Qing The Confucian perspective recognizes both the central importance of qing in human morality and its limitation. Morality cannot be found outside of qing, but neither can morality be expected to come directly or naturally from qing. In the Confucian classics, renqing is referred to as a field in which morality is cultivated. According to this view, morality is developed not by suppressing or by conquering qing but, rather, by cultivating and enriching it. Of course, the fruit of morality cannot grow naturally and automatically from this field. It takes the sages to construct a system of morality. However, the sages do not construct a morality out of abstract reason or formal principles. The construction must be based on and is also responsive to human qing. The Confucian insight is that we have nowhere else to develop morality except to take the human qing as it is and work with it. For example, in The Book of Rites, it is said, When the sages would make rules (for men), they felt it necessary to adopt . . . the feelings of men as the field (to be cultivated).. . . Thus propriety and righteousness are

582 Confucianism the great elements for man’s character.. . . They supply the channels by which we can . . . act as the feelings of men require. . .. Therefore the sage kings cultivated and fashioned the lever of righteousness and the ordering of ceremonial usages, in order to regulate the feelings of men. Those feelings were the field (to be cultivated by) the sage kings. They fashioned the rules of ceremony to plough it. They set forth the principles of righteousness with which to plant it. They instituted lessons of the school to weed it. They made love the fundamental sub­ ject by which to gather all its fruits, and they employed the training in music to give repose (to the minds of the learners). (Liji, ‘Liyun’; as translated in Legge, 1885: Vol. 1, 383–389)

The use of the metaphor of ‘field’ for human qing implies that qing is something we have to accept and affirm. It is not perfect, but we do not have a better alternative. It is where we should start and seek improvement. The use of the metaphor of field also implies that there is a natur­ alistic as well as a constructivist dimension of morality. There is a naturalistic basis of morality, but such a basis by itself is not sufficient. There has to be further contri­ bution on top of this basis. The following passage in ‘Xing zi ming chu’ of Guodian Bamboo Texts clearly points out both the value and the limitation of qing: The Dao [Way] begins from qing. Qing begins from xing. The starting point is close to qing. The endpoint is close to yi [moral rightness]. (Li, 2007: 136)

Although qing is the starting point, and there is no way to build a truly moral and humane morality except on the basis of qing, qing by itself is only necessary but not sufficient for the construction of morality. The way of acting directly from qing without any moderation is described as the way of the uncivilized people. It is uncivilized not in the sense that it is necessarily evil but in the sense that it is not fully human and moral. The Book of Rites explains this as follows: Youzi and Ziyou were standing together when they saw a mourner showing child’s way of missing his parent (leap­ ing in mourning). Youzi said, ‘‘I have never understood this leaping in mourning, and have long wished to abolish it. The sincere feeling (of sorrow) which appears here is right, (and should be sufficient).’’ Ziyou replied, ‘‘In the rules of propriety, there are some intended to lessen the (display of) feeling, and there are others which purposely introduce things (to excite it). To give direct vent to the feeling and act it out as by a short cut is the way of the uncivilized people.’’ (Liji, ‘Tan-gong II’; as translated in Legge, 1885: Vol. 1, 176–177)

Ziyou does not disagree with Youzi that sincere feeling is valuable, but he disagrees that sincere feeling by itself is sufficient to constitute good human behavior. ‘To act

directly from qing without any moderation’ is not evil, but it is uncivilized. It is a long way from a truly human and humane morality. The Confucian view is that qing cannot be denied or negated. However, it does have to be regulated, moder­ ated, and enriched. Nothing can replace qing, and moral mistakes can be avoided by moderating qing from being excessive: To be excessive is a mistake. Human qing without excep­ tion can be excessive. Rectify the excessive (mistake), and then the mistake is gone. (Dadai Liji, ‘Shengde’)

Of course, moral mistakes can also result from deficiency as well as from insincerity of qing. They result from the lack of qing rather than from qing. In this section, we discuss only the value and the limitation of qing. We leave aside the question of how bad the lack of qing can be. We only consider the question of how bad qing can be. It is interesting to note that according to this view, evil is not something substantial. There is nothing bad in itself about qing; only an excessive and unmoderated expression of it is problematic. However, moderation to avoid exces­ sive expression of qing is still not yet the attainment of morality or virtue.

Qing and Virtue in Confucianism ‘Virtue’ (de 德/惪) refers to the good or beautiful quali­ ties of the heart-mind. It refers to what one possesses inside one’s heart-mind and expresses in one’s behavior. Like qing, virtue is also a person’s sincere inner state. Virtue is developed from qing. It refers to an inner state that is more cultivated and enriched than qing. It can be regarded as a higher state of qing. In the Guodian Bamboo Texts, de ji xing 德之行, or virtuous conduct, is contrasted with 行, or good conduct. De ji xing refers to virtuous conduct that comes from the inside, and xing refers to good behavior that is externally caused. In short, only conducts that have their origins in good inner states are regarded as virtuous. Proper beha­ viors are just proper behaviors, and they are not the same as virtuous conduct: Ren [benevolence] that comes from the inside is called virtuous conduct. It is merely conduct if it does not come from the inside. Yi [moral rightness] that comes from the inside is called virtuous conduct. It is merely conduct if it does not come from the inside. (‘Wuxing’; as quoted in Li, 2007: 100)

The following passage from The Book of Rites is typical of such kind of claims that the moral goodness or badness of a person is dependent on one’s heart-mind or one’s inner states:

Confucianism The heart-mind of a person is hidden and unfathomable. Both good and evil depend only on the heart-mind, but they may not be seen in behavior. If it be wished to regulate it in a uniform way, how can it be done without the use of the rules of propriety? (Liji, ‘Liyun’)

The passage contains three claims that point to different directions. First, whether a person is morally good depends on his or her heart-mind. Second, the heart– mind of a person is unfathomable: No one can have certainty of knowledge of the heart-mind of another person. Third, norms are necessary to regulate human conduct. Consequently, Confucian ethics has two levels. Because the human heart-mind is unfathomable, we should look for the right behavior rather than the right motive when making moral judgments about other peo­ ple. Because moral goodness depends on the inner states or the heart-mind, when making moral judgment about ourselves, we should require ourselves to have the right motives, and we should aim at cultivating our own virtues instead of just aiming at displaying the right behavior. Such an approach to morality implies that there should be a theory of moral rightness as well as a theory of moral goodness. The former is a theory of right actions, whereas the latter is a theory of good motives. In Confucian ethics, the former is constructed around the key concepts of li 禮 (rites) and yi 義 (rightness), whereas the latter is con­ structed around the key concepts of ren 仁 (benevolence) and de 德 (virtue). Such an approach to morality also implies that we should set higher standards for ourselves but less demanding standards for other people. Demand for acting out of a virtuous motive is a reasonable demand for an agent to make on him- or herself, although it may not be a reasonable demand that the general practice of social morality must satisfy. For example, in Liji, ‘Biaoji,’ Confucius says, There is only one person in the world who can be required to be benevolent without satisfying his desires, or to discard unbenevolence without appealing to his fears. So the gentleman judges himself according to the Way, and sets laws to guide the people. (Liji, ‘Biaoji’)

Given the decisive role played by motives in determining the moral goodness or badness of a person and his or her actions, the cultivation of qing and our inner states is highly important in Confucian morality. Qing in this sense can be said to constitute the root of value and virtue. What is lacking in qing cannot have real moral value or virtue. What is originated from qing, although it may not be totally valuable and virtuous, cannot be morally bad. Why can qing not be morally bad? If qing comes from human nature, and qing is bad, it means that there is something morally bad in human nature. Unless we want to take the view that human nature is evil, we cannot

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accept the view that qing is morally bad. To reject qing as bad would then be tantamount to a denial of human nature and human beings. It is further argued in the Guandian Bamboo Texts that qing has positive value: The qing of a person is pleasing. So long as it is based on qing, it is not evil even if it is excessive (and wrong). If it is not based on qing, even if it is difficult (and right) it is not highly valued. (‘Sheng ji ming chu’; as quoted in Li, 2007: 138)

Such a conception of virtue regards virtue as being founded on qing. To be virtuous is to have qing in some specific way. This view implies that a virtuous person must have qing – some good sincere inner states – and a person who does not have some kind of qing that are good sincere inner states cannot be virtuous, although it is also true that a person who has qing may not be virtuous.

Qing and Moral Codes As noted by Yu Yingshih, Confucius’s conception of li 禮 is very different from the common conception of li that existed before Confucius. In Zuozhuan (左傳), Year 25 of Duke Zhao, li is depicted as something like a law of nature. In the Confucian classics, li or the norms of con­ duct are not objective laws that come from Heaven but, rather, are closely tied to the human condition and are constructed by the sages taking into consideration the qing of human beings. Regarding the Confucian view of the origin of li or codes of conduct, it seems that at least two points are clear: (1) Li is man-made; and (2) li is not arbitrarily made but, rather, is made with reference to human qing. As stated in The Book of Rites, Li is based on human qing, and serves to regulate as well as decorate it [qing]. (Liji, ‘Fangji’)

Two additional points can be inferred from this passage: (1) Li is based on renqing, and (2) li has a dual function – to regulate qing and to enrich qing. Li, or morality as it is understood in a given time or culture, is constructed (not given, not innate, and not natural laws but human constructs) on the basis of renqing. As we noted previously, (1) morality is constructed on the basis of renqing, (2) morality is constructed with the dual purpose of moderating and enriching qing, and (3) renqing is the starting point but not the ultimate endpoint of morality. Morality is based as much on the substance of qing of the common people as on the work of the sages. The qing of the common people is the substance (ji 質), and the contribution of the sages is known as culture or civility (wen 文). Morality is an interplay of these two elements.

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According to Dadai Liji, there are three levels of moral accomplishments: The rites begin from simplicity, become adequate with enrichment, and reach completion with maximal fulfill­ ment. So the highest accomplishment through rites is to reach maximal fulfillment for both qing and wen. The lower accomplishment is to have alternate reiteration of qing and wen. The lowest accomplishment is to return to qing and the raw state. (Dadai Liji, ‘Li sanban’)

This quotation illustrates very well that qing is the starting point of morality. However, it is a very impoverished kind of morality if we just stop there. Qing is the substance and so it should never be gotten rid of. The three levels of moral accomplishment are as follows: 1. Maximum fulfillment of both qing and wen 2. Alternative reiteration of qing and wen 3. Returning to qing Returning to qing is the minimal level of morality. Denial or negation of qing is gross immorality. Thus, we must not fall below this level, which is the baseline of morality. Qing is the substance and li is the form. There is tension between the substance and the form, but they are not directly at odds with each other. The form is a way to give expression to qing more appropriately. In the extreme case in which we can only keep one of the two, qing must be retained and li has to give way. In The Book of Rites, Zilu said, ‘‘I heard the Master say that in the rites of mourning, exceeding grief with deficient rites is better than little demonstration of grief with superabounding rites; and that in those of sacrifice, exceeding reverence with deficient rites is better than an excess of rites with but little reverence. (Liji, ‘Tangong’; Legge, 1885: Vol. 1, 141)

Returning to qing is only the minimal level of morality. Below this baseline, it is immorality. However, the mini­ mal level is only a very impoverished kind of morality. Culture or civility (wen) has to be added to make it a full­ fledged human morality. Even at the higher levels, how­ ever, qing is always the basic stuff and the source of virtue. A higher level of moral accomplishment is alter­ nate reiteration of qing and li, which means that there is slightly more emphasis on qing on some occasions and slightly more emphasis on li on other occasions. Neither of these two situations is ideal, but alternating between these two situations allows us to have more or less equal emphasis of both qing and li and thus enables us to fulfill the two requirements to a greater extent. The ideal situation, or the highest level of moral accomplishment, is of course maximal fulfillment of both qing and li simultaneously.

Implications for the Nature and Practice of Morality An important message of the renqing theory of morality is that common human qing cannot be denied. Morality is achieved through moderating human qing, but such mod­ eration is based on respecting and responding to human qing. A morality that does not give adequate recognition to and affirmation of the common qing of human beings is unreasonable, and hence it cannot be truly moral. For example, a morality that disallows widows to remarry or a morality that requires the people to behave selflessly in serving their country can be ruled as immoral and inhu­ mane on the ground that it does not give due recognition to the common human qing and that it denies legitimate claims to be made on the basis of human qing. In Hanshi Waizhuan, there is a telling story about the relevance of qing to the basis of morality. The recognition of qing as the foundation of morality makes Confucian ethics a truly human and humane morality. It seems that this feature of Confucian ethics has been overlooked by a number of later Confucians: Mencius’s wife was alone and in a squatting position. Mencius entered the door and saw her. He told his mother, ‘‘My wife has no sense of propriety (li), and I would like to send her away.’’ His mother said, ‘‘How is that?’’ ‘‘She was squatting.’’ His mother said, ‘‘How do you know?’’ Mencius said, ‘‘I saw her myself.’’ His mother said, ‘‘Then it is you who have no sense of propriety, not she. Do not the rules of propriety say, ‘‘When you are about to enter a gate [you should ask who is there], when you are going to ascend the hall you must make a noise, and when you are going to enter a door you must look down, so that you do not take by surprise a person who is unprepared? Now you went into a place of retirement, entering the door without making a sound, so as to catch sight of a person squatting. In this you acted improperly; it is not your wife who was improper.’’ (Hanshi Waizhuan 9.17; as translated in Hightower, 1952: 305)

In the story, Mencius judges that his wife has displayed an improper behavior. The reply of Mencius’s mother shows that whether a behavior can be judged as improper has to be determined with reference to the standard of common human qing. In the current case, privately pursuing beha­ vior that is comfortable to oneself when alone is proper and reasonable and consistent with common human qing. Such kind of behavior should be respected. In fact, it would be a requirement of propriety that we should always try to alert the other person when we are about to approach an area where the other person may be alone and doing things that are pleasing to him- or herself in

Confucianism

private. This line of thinking also shows that some degree of privacy is justified by Confucianism on the basis of their understanding of, and respect for, common human qing. Placing human qing at the center of human morality also implies that a core feature of morality is that it must be practicable and sustainable. What is contrary to human qing will surely not be practiced by people time after time, continuously for a long time, and it will surely not be followed by the majority of people. In other words, a truly moral behavior is one that can be practiced time after time and followed by a large number of people and passed on from generation to generation. The following story in The Annals of Lu¨ Buwei, ‘Scrutiny of the Subtle,’ is very illuminating: According to the laws of Lu, if a native of Lu was a servant or concubine to another feudal lord and could be purchased out of bondage, the purchase price would be recompensed from the Lu state treasury. The disciple Zigong purchased a Lu native from a feudal lord; but when he returned from his mission, Zigong refused the payment of recompense from the treasury. Confucius said, ‘‘Zigong made an error in doing this. Henceforth people of Lu will never again purchase others out of bondage. Obtaining money for such a purpose does not damage moral conduct; but if the price is not recom­ pensed, no one will ever again purchase the freedom of others.’’ Zilu rescued someone who was drowning, and the man rewarded him with an ox, which he accepted. Confucius said, ‘‘People of Lu will certainly come to the aid of the drowning.’’ Confucius realized what the end result would be from the very beginning, because his ability to perceive future developments was far-reaching. (Knoblock and Riegel, 2002: 394)

What Zigong did is more difficult and demanding than what Zilu did, but what Zilu did is morally superior. The reason is that what Zigong did is a one-time occurrence. It is difficult to demand or expect Zigong to do it again the next time he is in a similar situation. Anyway, Zigong will have a weaker motive to engage in the same act as time goes by. It is also difficult for other people to follow Zigong’s example. Not only do they have to pay the money first but also they cannot get back the money later. Even if they can get back the money later, they will be regarded by other people as doing something less admirable than what Zigong has done. On the contrary, what Zilu did is sustainable. It is not the case that he is just giving out money and getting nothing in return. What he did can also encourage other people to do the same thing in similar situations. Morality is not just something for us to talk about but must also be something for us to put into practice. Hence, morality must be practicable. A morality that is based on human qing ensures that morality is practicable and that

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the same kind of moral behavior can be done repeatedly by the same person and can also be followed by the common people. From this perspective, Mozi’s moral exhortation to love everyone equally or Peter Singer’s moral demand to donate a good portion of one’s monthly salary to help the poor can be regarded as unreasonable. It is clearly stated in Liji that ’’the point of li is that it can be passed from one person to another, and sustained from one time to another’’ (Liji, ‘Tangong’). Confucius also observes that, benevolence has different sizes. Rightness has different magnitudes. Feeling compassionate in one’s heart – this is one person’s benevolence. Setting examples and moving people to follow it – this is many people’s benevolence. [There is also benevolence that is valid for several gen­ erations and benevolence that is valid for one’s whole life.] (Liji, ‘Biaoji’)

Such a conception of morality that gives a central place to qing also has special implication for moral education: One major task of moral education is the cultivation of genuine emotions. Because the practice of morality consists at least partly of acting out one’s good-natured emotions and moral rules can only work if they have resonance in genuine human emotions, moral education should put much emphasis on the cultivation of emotion rather than just on the articulation of the moral requirements.

Conclusions The qing-based theory of morality has a number of merits. First, it regards morality as partly objective and partly constructive. Such a perspective explains the authority as well as the flexibility of morality. Second, it emphasizes the practicability of morality. True morality must be practicable. A morality that is too demanding is a false morality. Third, it points out that morality is not a purely formal concept because it must have some substantial content that is closely related to human nature, human well-being, human needs, human sentiments, and human aspirations. It echoes the insightful view of Bernard Williams, who has argued that ‘‘the idea of the ethical . . . has some content to it; it is not a purely formal notion’’ (Williams, 1985: 13) and ‘‘considerations of the moral kind make sense only if they are related to other reasons for action that human beings use, and generally to their desires, needs, and projects’’ (Williams 1993: xiii). As Confucius points out in Zhongyong, a truly human morality cannot be far away from the people: Confucius said, ‘‘The Way is not far away from people. How can it be the Way if it is far away from the people? The gentleman uses people as the basis in regulating

586 Confucianism people. He just makes moderations and that is all. (Zhongyong, Chap. 15)

This view of constructing morality on the basis of ren-qing provides a middle path between naturalism and non-nat­ uralism. It is not a kind of foundationalism; although morality starts from qing, it does not stop there – qing has to be regulated and moderated. There is some foun­ dation of morality, but the view of foundationalism is not true. Neither can this view be regarded as constructivism because there is a rich substantial basis on which con­ struction can be made. In short, it has both a foundationalist and a constructivist dimension, but it is neither foundationalism nor constructivism. In Confucian ethics, reason and emotion are not anti­ thetical. In one way, qing is like emotion because it has substantial content. In another way, it is like reason because it has universal form and general validity. This conception of ethics does not have the problems of ration­ alism, which is often alleged to be lacking substantive content. Neither does it have the problems of emotivism, which is often alleged to be lacking universal form. As noted by contemporary Chinese scholar Meng Peiyuan, Confucianism does not advocate private emotion. What it advocates is rational emotion. . .. This kind of emotion is not opposed to reason, on the contrary it is unified with reason. So it is called ‘qingli’ (sentiment-reason). ‘Qingli’ is a very important category in Chinese philosophy, espe­ cially in Confucian philosophy. ‘Qingli’ stands for valuerationality in Confucian philosophy. It is not emotion at the empirical level, but universal, objective emotion with characteristics of reason. . .. ‘Qingli’ has the content of emotion, and at the same time the form of reason. It is the unification of form and content. (Meng, 2003: 9–10)

In this article, we presented a Confucian conception of the foundation of morality that is quite different from mainstream Western approaches. Such a conception is grounded in distinctive Chinese concepts such as qing 情 and renqing 人情 as well as ren 仁 and li 禮 which have no exact translation in English. However, we hope that our examination and explication of these concepts have enabled us to gain a better grasp of Confucian moral psychology such that we can better appreciate the role it plays in grounding a different system of morality.

See also: Taoism.

Further Reading Hightower JR (trans.) (1952) Han Shih Wai Chuan (Han Ying’s Illustrations of the Didactic Application of the Classic of Songs). Cambridge, MA: Harvard University Press. Knoblock J (trans.) (1988–1994) Xunzi: A Translation and Study of the Complete Works. 3 vols. Stanford, CA: Stanford University Press. Knoblock J and Riegel J (trans.) (2000) The Annals of Lu¨ Buwei. Stanford, CA: Stanford University Press. Lau DC (trans.) (1979) The Analects. Harmondsworth, UK: Penguin. Lau DC (trans.) (1984) Mencius. Hong Kong: Chinese University Press. Legge J (trans.) (1885) Li Chi (The Book of Rites). Oxford: Oxford University Press. Legge J (trans.) (1960) The Chinese Classics. Hong Kong: Hong Kong University Press. Li L (2007) Guodian Chujian Jiaoduji (Commentary on the Guodian Bamboo Texts) rev. edn. Beijing: Zhongguo renmin daxue chubanshe. Ma C (ed.) (2001) Shanghai Bowuguan Zhanguo Chuzhushu. Shanghai: Shanghai Guji Chubanshe. Meng P (2003) Guanyu Zhongguo Zhexue Shengtaiguan De Jige Wenti. Zhongguo Zhexueshi (History of Chinese Philosophy) 35(4). Ruan Y (1993) Yanjingshi Ji. Beijing: Zhonghua Shuju. Williams B (1985) Ethics and the Limits of Philosophy. Cambridge: MA: Harvard University Press. Williams B (1993) Morality: An Introduction to Ethics. Cambridge, UK: Cambridge University Press. Yu K, Tao J Ivanhoe PJ (eds.) (2010) Taking Confucian Ethics Seriously: Contemporary Theories and Applications. Albany: State University of New York Press. Yu Y (2003) Between the heavenly and the human. In: T Weiming and Tucker ME (eds.) Confucian Spirituality, vol. 1, pp. 62–80. New York: Crossroad.

Biographical Sketches Yu Kam-por is Associate Director and Senior Lecturer of the General Education Centre of the Hong Kong Polytechnic University. His major areas of interest are Chinese philosophy, ethics, and applied ethics. His recent publications include Taking Confucian Ethics Seriously (State University of New York Press), co-edited with Julia Tao and Philip J. Ivanhoe, and a series of papers on the Confucian views of war, peace, harmony, multiple values, abortion, and revenge.

Julia Tao is a professor in the Department of Public and Social Administration of the City University of Hong Kong. She is also Chief-of-Staff of the university. Her teaching and research interests are focused on Confucian ethics, biomedical ethics, ethics in government, and comparative philosophy. Her work has appeared in the Journal of Applied Philosophy, Journal of Social Philosophy, Journal of Medicine and Philosophy, Journal of Chinese Philosophy, and Philosophy East and West. She is co-editor of Governance for Harmony in Asia and Beyond (with Anthony Cheung, Martin Painter, and Chenyang Li; Routledge, 2010).

Conjoined Twins C Quigley, Mount Dora, FL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Anomalous Deviating from the norm. Craniopagus Conjoined twins who are joined at the head, usually having two bodies, each with two arms and two legs. Dicephalus Conjoined twins who are joined from the chest down, with two heads and usually a single pair of arms and legs.

Body, Identity, and Disability Today, the term ‘conjoined twins’ is preferred over ‘Siamese twins,’ which refers to the most famous pair, Chang and Eng Bunker (1811–74) of Siam (now Thailand). The reason that the Bunker twins became such a sensation on tour in the nineteenth century and why we are still so fascinated by this anomaly is that conjoined twins’ bodies are at the same time so similar to and so different from our own. Because a pair of twins has two identities but a single physique, they do not fit the categories we have set up to understand our world. The sight of conjoined twins provokes emotions ranging from wonder to pity. We stare, sympathize, and struggle to understand from our own perspectives in our individual bodies – forgetting that life attached to a sibling is all they have known. We may imagine their lives to be a living hell, but for ethicists – particularly Alice Domurat Dreger – this point of view is self-centered and narrowly conceived. Twins old enough to speak their mind explain that they accept their unusual condition and, in many cases, cannot envision living any other way. Conjoinment is, for them, as normal as it is abnormal to us. Conjoined twins are born in a variety of shapes, all of which pose ethical challenges to their parents and care­ givers, to the courts, and to the twins’ surgeons and their institutions. And yet each pair of twins comes with his or her own set of circumstances. Knowing that they are distinguished from other bodies by their anatomy, con­ joined twins find it important to make clear that they are two distinct individuals with differing personalities and tastes. This may be hard to keep in mind as they finish each other’s sentences and make mutual decisions, but psychologists characterize them as masterful at cooperating and compromising, while at the same time maintaining separate selves. Differences in temperament

Parasitic An asymmetrical conjoined twin who shares one or more organs necessary to survive independently. Pygopagus Conjoined twins joined at the pelvis, usually having two bodies, each with two arms and two legs. Sacrifice surgery The surgical separation of conjoined twins in which a parasitic twin is euthanized to save the life of a viable twin.

were often used to argue that conjoined twins constitute two souls rather than one. Their legal status as one or two persons has also been disputed, whether they applied for a passport, a driver’s license, or a marriage license. But more to the point here is the misguided idea among those of us with a single consciousness in a single body that conjoined twins are ‘trapped’ in their shared body. However they are joined, conjoined twins’ bodies differ from the average, but we do them a disservice to assume that being a single consciousness in a single body is always preferable and that, therefore, normalization – dividing their body into two to approximate the average body type – should be sought in every instance. Once conjoined twins are able to express themselves, they confirm contentment with their bodies as they are. In fact, the sentiment is almost universal among them. Ronnie and Donnie Galyon have remained attached at the abdomen since their birth in 1951, living a joined life of activity and independence and refuting the perceived need for surgery. Dicephalus twins Abigail and Brittany Hensel (b. 1990) are able to coordinate their efforts and lead active and open lives. Separation for them would not only present an unnecessary risk and necessitate years of surgeries, but would leave them each with only half a body. The Schappells (b. 1961), too, state emphatically that being joined at the head is, for them, preferable to being separated. Although no anecdotal evidence exists that older twins who have been surgically separated as babies regret their parents’ decision, only a single pair of twins who have remained conjoined into adulthood (the Bijanis, discussed below) have requested separation surgery. One of the first considerations, therefore, is not ‘when’ or ‘how’ to perform the surgery, but ‘whether’ to separate them at all. ‘Why not see conjoined twins who want to remain together as well-adjusted?’ asks Dreger. They are

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able to both cooperate and individuate as they grow older. Even regarding the sensitive subject of sexual relations by twins who remain joined, they report that they are able to remain mentally distant from one another when neces­ sary. But there are, of course, practical considerations and medical issues to be weighed and few long-term or indepth studies of twins who remain joined on which to base decisions. But allowing twins to remain conjoined takes on a special urgency in cases where one twin’s body puts a strain on the other’s that threatens both their lives. In 1998, an ultrasound revealed that Sandra and Ramon Soto were pregnant with conjoined twins who had a single heart and liver between them. Darielis Milagro was sup­ plying blood to her acardiac sister through the umbilical cord, which meant that both twins would die if surgery to sacrifice Sandra were not performed immediately after birth. The Sotos declined to terminate the pregnancy for religious reasons, so the twins were delivered in May 1999 in Boston and the separation was performed, during which Sandra died. After a 6-month hospital stay and additional surgeries, Darielis showed no signs of longterm developmental difficulties. In asymmetrical unions in which the smaller twin is dependent on the more fully formed twin, the nonviable twin is termed ‘parasitic’ and characterized as a growth or appendage, but this terminology helps make the decision to divide them morally acceptable. Even when the deci­ sion to euthanize the weaker child to save the stronger one is approved by all parties, the outcome is not certain. When female conjoined twins Marta and Milagro Juarez were born in Peru in February 2000, they and their families were flown to Italy to undergo separation. The babies had been dependent on respirators since birth, had developed a bacterial infection, and were deteriorating. Because they shared a heart, liver, and part of the intest­ inal tract, one of the twins would be sacrificed during the surgery. The agonizing choice was condoned by their mother, permitted by church officials, and sanctioned by the hospital’s ethics committee. Preference was given to Marta, and her sister died on the operating table as expected. The liver was successfully divided and Marta’s intestine reconstructed, but she soon died when her heart stopped functioning. Despite the possible loss of both twins during the surgery, immediate separation of conjoined twins is typi­ cally advised when one twin’s health status threatens the other’s survival, or abnormalities threaten the progress of one or both twins. But it is considered by many to be unethical to sacrifice the life of one conjoined twin to separate him or her from the other, and such sacrifice is never permitted upon babies who are not conjoined. Separation surgery that results in the intentional death of one twin is the single instance in which legal authorities and ethics committees allow surgeons to intentionally euthanize a child who is not clinically brain-dead.

Separated or not, being born conjoined comes with serious consequences, many of them medical. Ongoing issues with their physical health, combined with the assumed psychological and emotional problems, lead to the popular belief that conjoined twins have an impossibly difficult and regrettable life. Even when they remain joined, the twins themselves insist that this is not so. Craniopagus twin Lori Schappell advises that until and unless the complaint comes from them, their lives are agreeable. In fact, many conjoined twins do not consider themselves disabled, although Dreger believes that peo­ ple with unusual anatomies should be considered so, even if they do not have impairment in the customary physical sense. She explains that physical ‘difference’ is treated as a physical ‘defect’, with pity and stereotype substituted for genuine accommodation, which the disability rights movement works to correct.

Separation Pediatric surgeons at Red Cross Cape Town Children’s Hospital, where more than 30 sets of conjoined twins have been separated to date, not all of them successfully, are of the stated opinion that conjoined twins are born to be separated. This assumption exemplifies what has been referred to as the ‘medical imperative’ to perform surgical intervention on conjoined twins and take aggressive mea­ sures to make their bodies conform to the norm, an ideal that may endanger the lives of otherwise healthy twins. In many cases, separation surgery is the right decision, medi­ cally, psychologically, and ethically. If the surgery is simple, the twins may face only a slight risk of death or long-term disability and may not need subsequent cor­ rective or cosmetic surgeries. If the surgery is carried out early, before the twins are fully aware of their condition and before their personalities are fully developed, it offers the best chance for psychological well-being. Surgery to normalize conjoined twins sometimes works completely, but also may leave the twins with disabilities egregious enough to cause significant social stigma. Nonemergency separation surgeries almost never improve the physical health of either child and often leave the surviving twins brain damaged, temporarily or permanently movement impaired, without reproductive capabilities or sexual sen­ sation, and with significantly reduced life expectancy. To date, at least 250 attempts have been made to separate conjoined twins. When complicated surgery is pursued, earlier is usually better for the children, whose skulls will not have hardened, in the case of craniopagus twins, and who will experience less scarring in general. But extrapolating from intersex case histories, it is mis­ taken to assume that a conjoined twin’s gender can be changed – for instance, if the pair has only a single penis – without consequence. Decision makers should be realistic

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about the goals of the surgery and its possible negative effects. And the family should involve the twins in the decision making, even if they are very young. When the twins are too young to lend their input, their parents serve as proxies, being aware of the ways in which their own interests may influence their decision. Parental consent was not an issue with pygopagus twins Stella and Esther Alphonce, born in 1999 in Tanzania. Their mother had misgivings about separation, but these were assuaged by the doctors and outweighed by the poor quality of life and social discrimination they would endure remaining conjoined in their home country. While it would be difficult to care for unseparated twins in Tanzania, would the benefit of the surgery outweigh the possibility of paralysis? The twins were separated in 2000 in a 14-h operation at the Red Cross Children’s Hospital in Cape Town, South Africa, during which the surgeons reconstructed their excretory and reproductive systems, leaving them with colostomies that surgeons hoped they could later reverse. Eleven months after separation, the Alphonse twins returned to Tanzania healthy, happy, and learning to walk. Acknowledging that separation surgery might result in the death of craniopagus twins Ahmed and Mohamed Ibrahim, born in Egypt in 2001, craniofacial surgeon Dr. Kenneth Salyer, who found their quality of life ‘hor­ rendous,’ arranged their visit to the United States for assessment. Measuring 5 ft end to end during their first year of life, they could not sit, stand, or crawl; were unable to see each other’s face; and had to be lifted by two people. Their limited mobility, which was beginning to frustrate the twins, was an important issue in deciding whether to separate them. Because they shared some brain tissue and several blood vessels, a risk of the surgery was brain damage, which would simply trade one disability for another. The ethical dilemmas in this case were posed by the risks of surgery and the question of whether it was fair to spend up to $2 million on their care when the same amount – spent on food, vaccines, or sanitation – could potentially save many more lives. The parents were will­ ing to take the risk on the boys’ behalf, and the cost was borne by a charity that had been created by Dr. Salyer. The 33 h of surgery in October 2003 did not result in the infection, bleeding, or swelling that has led to death or brain damage in similar cases – although Ahmed did have a seizure, required a shunt to drain some of his spinal fluid, and lagged behind Mohamed in terms of recovery. Six months after surgery, the Ibrahim twins were released from the hospital, to return for physical therapy and additional operations to strengthen their skulls before returning to Egypt. For the first time, parental consent did not have to be sought in the case of conjoined twins Laleh and Ladan Bijani, craniopagus females born in Iran in 1974. They were not separated as babies, but had desired the surgery

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from a young age. After they each earned a law degree at Tehran University, they went to Germany in 1996 to be assessed for separation. The German doctors declined, because the twins shared a single sagittal sinus, the vessel that drains blood from the brain. In November 2002, at the age of 29, the Bijanis travelled to Singapore for separation by Dr. Keith Goh of Singapore’s Raffle Hospital and Dr. Benjamin Carson of Johns Hopkins Children’s Center, who had tried unsuccessfully to dis­ courage them. The surgeons had each participated in the separation of children joined at the head, but this would be the first time adult craniopagus twins had been sepa­ rated – and the first time the request for such surgery originated with the conjoined twins themselves. In 1987, Dr. Carson’s 28-h separation of 7-month-old Patrick and Benjamin Binder had left both infants neurologically impaired and they were institutionalized; in 2001, 10-month-old Ganga and Jamuna Shrestha both survived a 96-h separation by Dr. Goh in ‘near normal’ condition; and in 1995, both doctors operated on 2.5-year-old Nida and Hira Jamal for 17 h, after which Nida died. In the Bijanis’ case, the surgery was approved by the hospital’s ethics committee and the sisters chose to accept the risks. Fifty-two hours into the surgery to detach them from one another, Laleh and Ladan Bijani died of massive blood loss. The wishes of the parents were overridden in the case of Gracie and Rosie Attard, which is one of the reasons it has generated so much discussion among ethicists. When the Maltese parents of these female twins learned from an ultrasound that their babies were conjoined and would need sophisticated medical care, they came to England to give birth. Gracie and Rosie were born at St. Mary’s Hospital in Manchester in August 2000, joined at the pelvis with a fused spine and a shared aorta. Gracie was bright and alert, but Rosie – believed to have suffered brain damage – was passive and dependant on Gracie for the circulation of oxygen and blood through their bodies. Her own heart and lungs were essentially nonfunctional. The doctors in Manchester estimated that there was an 80–90% chance that both babies would die within 6 months if they were not surgically separated, due to the burden on Gracie’s heart. A medical team from London concurred when asked to provide a second opi­ nion. The parents were opposed to the separation surgery, which would result in Rosie’s death. Through their law­ yer, Michaelangelo and Rina Attard issued a statement: We cannot begin to accept or contemplate that one of our children should die to enable the other one to survive. That is not God’s will. Everyone has a right to life, so why should we kill one of our daughters to enable the other one to survive? . . . We have faith in God and we are quite happy for God’s will to decide what happens to our two daughters.

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The question of whether the surgery should proceed was put before England’s High Court with separate attor­ neys representing the conflicting interests of the parents, the doctors, each of the twins (who were given the pseu­ donyms ‘Jodie’ and ‘Mary’), the public health service, and the government. Judith Parker, the lawyer assigned to represent Gracie, urged everyone to think of the surgery not as something to hasten Rosie’s death, but as the restoration of Gracie’s bodily integrity, which would – after separation – require only rectal and vaginal surgery. The parents argued that separation would not necessarily result in a normal life for Gracie and pointed out the personal and financial hardship of caring for the surviving disabled child in their country. English law served the parents, by stating that there is no obligation for doctors to provide treatment to prolong life even in a medically futile situation, and the children, by giving their interest precedence over parental consent. Gracie was expected to survive separation, but only if it were carried out before Rosie died naturally. The British judges – who could find no comparable cases of surgical separation without par­ ental consent – decided that Gracie’s right to life was paramount and that surgery should be carried out. The case raised strong moral, religious, and ethical concerns that resulted in public outcry, activist threats, and hate mail directed at the doctors. A spokesman for the Hastings Center, a bioethics research organization in Garrison, New York, categorized the question as ‘lifeboat ethics,’ in which any outcome is tragic, but said that most ethicists would be in favor of surgery if there is clear medical evidence that one of the children could survive. Gracie was characterized as a life-support system for her sister Rosie, who was likened to a tumorous growth that had to be removed, since she could not survive indepen­ dently. Catholic moralists were divided about whether the operation was impermissible because it counted as the intentional killing of Rosie, or morally required because of its potential benefits to Gracie. The family’s convictions not to intervene were supported by the head of the Roman Catholic Church in London, Archbishop of Westminster Cormac Murphy-O’Connor, who clarified the Roman Catholic position by summarizing that (1) one should never aim to cause an innocent person’s death by act or omission; (2) one should not invade a person’s bodily integrity when there is no benefit attached, parti­ cularly if the consequences are foreseeably lethal; (3) one should not commit a wrong action that good may come of it; (4) one is not bound to take ‘extraordinary means’ when this imposes excessive burdens on the patient and the caregivers; and (5) one should not – out of respect for the natural authority of parents – override their rights unless there is clear evidence that they are acting contrary to what is strictly owing to their children. The Court of Appeal heard arguments in September 2000 about whether doctors operating on the twins

could be charged with Rosie’s murder and whether she had a legal right to be protected from death. The case had diplomatic overtones, since the parents brought their babies to England for treatment and British doctors suggested causing the death of one of them. The appeals court ruled unanimously and in an unprecedented opinion that the separation surgery should be performed to save the life of one of the twins. Lord Justice Alan Ward stated that there was an irreconcilable conflict between the best interests of each child, but explained that the surgery would be an act of self-defense performed on Gracie’s behalf. ‘‘The sad fact is that [Rosie] lives on borrowed time, all of it borrowed from her sister. She is incapable of indepen­ dent existence. She is designated for death,’’ he explained in his ruling. The parents announced their decision not to appeal the court ruling. Gracie and Rosie were separated in November 2000 at Manchester’s St. Mary’s Hospital. After the 20-h opera­ tion, during which 2 of the 20 surgeons simultaneously made the final cut that resulted in Rosie’s death, Gracie was breathing without the assistance of a ventilator and had begun feeding normally. She was expected to remain in the hospital for many months and to undergo further surgery to repair a dislocated pelvic joint and to recon­ struct the lower internal organs, the rectum, and possibly the vagina. After the High Court learned that the Attard twins’ parents accepted a large sum from the media to tell their story, they lifted the ban on publishing the twins’ real names. Rosie was buried in Xaghra, Malta, in January 2001. Gracie returned home, facing additional recon­ structive surgeries to align her legs so that she could walk. Several ethicists believe that the Attard case should not have been turned over to the courts. Many disagree with the court’s decision to override the parents’ wishes, since they held standard views about not killing one person to save another and the courts usually override parents only when they abuse their children or withhold life-saving treatment due to religious beliefs. Medical ethicists M. Q. Bratton and S. B. Chetwynd dispute the court’s conception of the twins’ shared body as having organs upon which Rosie depends that ‘belong’ to Gracie. They argue for seeing conjoined twins as two individuals, psychologically separate but, by degrees, with a shared body. Their body is not something they are in competi­ tion over, but something they both have interests in, although neither has exclusive rights over it. By drawing moral and legal inferences on the basis of standard human physiology, the courts found it difficult to avoid concep­ tualizing the twins as adversaries, balancing one twin’s interests against the other’s, and designating one as posing a problem for the other even when this was not clearly the case. Bratton and Chetwynd suggest seeing the twins as facing a common problem (which may need to be solved by surgical separation to the detriment of one of them),

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while attempting to value them equally and in order to act in the best interests of both. Their common physiology negatively affects them both, and separation will create disadvantages for both, even for a survivor who might otherwise have died. Like the Attard twins, Amy and Angela Lakeberg were born with a single heart, but the ethical issues surrounding their case were about more than their physical makeup. The Lakeberg twins were born at Loyola University Medical Center in Chicago in June 1993 to unemployed and uninsured Kenneth and Reitha ‘Joey’ Lakeberg of Wheatfield, Indiana. They were joined face to face at the chest and shared a six-chambered heart and fused livers, a condition that had been revealed at 16 weeks of pregnancy by an ultrasound. Despite being told of the significant likelihood that both twins would die, the par­ ents continued the pregnancy and the twins were delivered by Cesarean section. The $375 000 cost of their hospital care was partially reimbursed by Indiana Public Aid. Within 6 h of birth, the twins became ventilator dependent. The ethics consultation team recommended against separation surgery on three grounds: first, the medical data indicated that in all such cases there was no chance of the surviving twin leaving the hospital alive; second, the medical data did not sup­ port suspending the rule against killing in this case because of the poor likelihood of saving one twin; and third, social justice demanded that resources, time, and professional energy be devoted to better outcomes. The committee suggested withdrawing the respirator, but agreed to wait until they could be sent to a more experi­ enced facility for separation. The hospital did perform exploratory catheterization that confirmed the complex­ ity of the cardiac anomalies and indicated that Angela would be favored for survival. With the hospital pressing for a decision after the twins began to show signs of congestive heart failure, the Lakebergs searched for an institution willing to per­ form the surgery gratis. Doctors at Children’s Hospital of Philadelphia agreed to consider surgery, although they estimated Angela’s chances to be no more than 25% and encouraged the Lakebergs to reconsider. Amy and Angela were flown to Philadelphia in August 1993 where, at the age of 7 weeks, they became the thirteenth pair to be separated at Children’s Hospital. Kenny Lakeberg remarked to reporters that he and his wife were hoping for a million-dollar, made-for-TV movie contract. Chief surgeon James A. O’Neill, Jr., explained to the press that the surgery was risky, but not hopeless, and that the cost should not be a consideration. During the 5.5-h surgery, which involved separating the organs below the diaphragm and rebuilding the heart, Amy Lakeberg died, with her family already having made funeral arrangements, and was buried in Indiana. During the funeral, Kenny Lakeberg was involved in a

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fist fight over whether the casket would be open or closed. Angela remained in critical condition in the cardio­ thoracic intensive care unit. Shortly after the surgery, the twins’ father was accused of spending some of the chari­ table donations they had received – and the compensation he received for bringing a video camera into the neonatal unit – on fancy restaurants, a vehicle, and cocaine binges. His probation for an earlier assault charge was revoked and he was sent to jail for 6 months. A week after the separation, doctors removed Angela from the respirator, but she remained on a negativepressure ventilator and was fed through a nasogastric tube. The cost of care at Children’s Hospital now exceeded $1 million, part of which ($997 per day) was reimbursed by Indiana Public Aid and the rest of which was absorbed by the hospital. By late fall, Angela was able to breathe on her own for brief periods, but the Lakebergs’ situation precluded raising her at home on a respirator. Kenneth had been released from jail, but the couple had been evicted from their trailer park. He had visited the baby only twice, and Joey had made six trips to Philadelphia, one of them paid for by the National Enquirer in exchange for exclusive rights to her story and pictures of her with her daughter. Angela’s emotional needs were met by the nurses, instead of by her parents, and she was working with therapists to learn how to eat and sit up. Her heart was now fully functional and her chest was healing well. But after she caught a cold in May 1994, she began to deteriorate and was reattached to a ventilator around the clock. In June 1994, Angela Lakeberg lost conscious­ ness and died after three resuscitation attempts with neither parent present. A cardiorespiratory disorder had led the oxygen levels in her blood to drop precipitously. At the time of her death, her father was in a drug rehabilitation center, and just hours afterward was being arraigned on auto theft charges. Indiana Medicaid refused to reimburse either hospital for the dramatic treatments pursued because they were judged retrospectively to be futile and because the proper preauthorization forms had not been completed. Nevertheless, both the surgical team and the twins’ mother felt the efforts and cost were worth it. A thorough analysis of the Lakeberg case by bioethi­ cists covers the issues and offers recommendations. First, they question whether the respirator should have been used, considering the poor prognosis of the twins. Next, they find the argument of the ‘unjust aggressor’ (that Amy unjustly demanded that Angela sacrifice her life) and the principle of ‘double effect’ (that regarding the two results of separating the twins, it was the good effect of saving Angela, and not the evil effect of killing Amy, that was intended and therefore permitted) to be weak. They reason that the only way to justify taking the life of

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Amy in favor of Angela would be through surrogacy and presumed consent, but conclude that even this argument is weakened by the poor chances of Angela’s survival. They also point out that allowing the parents an option with such a slim chance of succeeding represents an impossible standard for surrogate decision making. They ask, ‘‘How can parents give morally valid consent for an operation that directly causes the death of one of their children?’’ Also, ‘‘Was consent in the Lakeberg case truly voluntary, since the medical ‘train’ was so far down the ‘tracks’?’’ The Lakeberg case raised many ethical questions, not least about the family’s social situation. Many bioethicists concur that the combination of medical facts and social problems should have weighed against surgery: ‘‘The likely poor physiological outcome coupled with the chances of poor physical support in the home environ­ ment, with little or no funding for complex home care, negates the possible benefit of prolonging a baby’s phy­ siological life’’ (Thomasma et al., 1996). But some have stated that the issue is not that the Lakebergs were unin­ sured or that Kenneth used drugs and diverted funds, but rather that the great expense – which could have been used to fund many unmet basic healthcare needs – was not justified by the estimated slim chance of success. Thomasma and his colleagues advise that the duty to preserve life must, in high-technology environments like U.S. health care, be reinterpreted as a duty to preserve, as far as possible, ‘normal human life’ – that which has potential for independent appreciation of the environ­ ment and the potential for growth. In the end, they recommend that surgery should be seriously questioned in thoracopagus twins with complex heart malformations. Some conjoined twins are better off without ‘normalization.’

Exploitation In the nineteenth and early twentieth centuries, some conjoined twins offered themselves up for public dis­ play on tours and in carnival ‘freak shows.’ This was a way for them to achieve freedom and independence – it allowed them to earn a living and to travel the world. Doctors were given special invitation to examine them in exchange for the authenticity this verification lent to the exhibit. In the ensuing years, it has become politi­ cally incorrect for those with physical anomalies to exhibit themselves to the public for profit. The right to examine interesting bodies remains the privilege of doctors, who put patients like conjoined twins in the ironic position of showing themselves so that they could be ‘fixed’ and more births like theirs could be prevented. It is also ironic that those with anomalous

bodies are unable to make a living today, despite the fact that many people with beautiful bodies get paid to exhibit them. In fact, the live public freak show – traditionally framed as an ‘educational event’ – never really disap­ peared, but evolved into the medical documentary now so common on cable television. Conjoined twins were medicalized, as it was increasingly believed that their condition could be alleviated through surgical interven­ tion. This did not free them from popular entertainment, but merely shifted the focus to the doctors. The diagnosis and deviant physiology of conjoined twins have dramatic appeal, both to the medical and to the voyeuristic eye. What was once a simple operation film was spliced with diagrams, photos, and x-rays and became a fully devel­ oped linear story with voice-over to accompany the spectacular visuals. Surgeons use state-of-the-art equip­ ment, but are portrayed – like their patients – from the human-interest angle. This makes them keenly aware that the now-ubiquitous televised surgeries, coproductions of public or commercial broadcasting companies and hospi­ tals or professional medical organizations, have enormous potential to elevate their professional status and that of their specialty. The conjoined twins, meanwhile, remain literally and metaphorically exposed, with the assumption by the viewer that the separation was filmed in exchange for having it funded. The presence of the media can distract or influence the decisions of both the parents of conjoined twins and the hospital in which they are separated. It had a dramatic effect in the Lakeberg case after Kenneth Lakeberg accepted money to make a videotape – which was then broadcast nationwide – of his twins in the neonatal inten­ sive care unit. He insisted that everything be done, while remarking that he and his wife wanted to negotiate a television documentary. The hospital did not want to stop treatment even though Medicaid funds had run out, since this would have looked like economics influenced the decision. In their many forms, contemporary media have engaged in the bioethics dialog, moving it from a more privatized philosophical discussion to a more pub­ lic, accessible, and useful discussion about the direction of powerful medical technology. Dreger cautions that the theme of triumph over adversity is all too common in narratives of disability, and that portraying twins who are to be separated as ‘brave little heroes’ merely feeds into the idea that these two individuals – born as one – are adversaries in the fight over the rights to that body. Another consideration is to avoid the perception that, because they are often brought to the United States from another country for surgical separation, conjoined twinning is an exotic phenomenon that only occurs in the world of the ethnic ‘other’ and can only be treated in high-tech Western countries.

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Conclusions Laypersons are challenged to think of conjoined twins as inhabiting an anomalous, but not abnormal, body that should be separated only if that is medically pos­ sible and in the best interest of the twins. We are asked by ethicists and conjoined twins not to pity them, a reaction that is not only unsupportive but actively oppressive. Alice Dreger (2005) asks, for instance, ‘‘Why not change minds instead of bodies?’’ Parents and caregivers are encouraged to seek the input of the twins, if possible, regarding separation; to base their decision to separate on whether it warrants the resulting impairment and risk of a possible negative outcome; and to suggest, when appropriate, that per­ haps surgical separation is not mandated. Surgeons and medical personnel are charged with preparing for and performing the dramatic surgery to separate conjoined twins, but should not take risks that would cause worse disability for the sake of normalizing the infants. The surgical team should consider the psychological impli­ cations for the profound changes they are making to these bodies, such as reversing a child’s gender. Hospital ethics committees are responsible for deter­ mining whether separation should be supported, given the risks and the possible consequences, which may include the sacrifice of one twin or the loss of both. The committee members (and the courts) are urged to avoid basing their decisions on a supposed antagonistic relationship between the twins, who each have rights to – and needs from – a single body that may not be met in either case. In addition to clinical considera­ tions, the hospital committees need to keep both economic issues and media presence in mind. The media, meanwhile, are tasked with presenting to the public a view of conjoined twins that does not reinforce the idea that they are to be pitied unless they can be made to look like the rest of us.

See also: Abortion; Children’s Rights; Patients’ Rights; Sex Selection.

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Further Reading Bratton MQ and Chetwynd SB (2004) One into two will not go: Conceptualising conjoined twins. Journal of Medical Ethics 30: 279–285. Clucas B and O’Donnell K (2002) Conjoined twins: The cutting edge. Web Journal of Current Legal Issue 5. http://webjcli.ncl.ac.uk/. Cowley C (2003) Conjoined twins and the limits of rationality in applied ethics. Bioethics 17(1): 69–88. Dougherty CJ (1993) A life-and-death decision: The Lakeberg twins. Health Progress 74(9): 16, 30–31. Dreger AD (1998) The limits of individuality: Ritual and sacrifice in the lives and medical treatment of conjoined twins. Studies in History and Philosophy of Biological and Biomedical Sciences 29(1): 1–29. Dreger AD (2005) One of Us: Conjoined Twins and the Future of Normal. Cambridge, MA: Harvard University Press. Gormally L (2001) The Maltese conjoined twins: Religion, ethics, and the Law of England. Second Opinion 8 (October). Chicago: Park Ridge Center. http://www.parkridgecenter.org Kurian S (2004) The ethical dilemma involving conjoined twin surgeries. The Journal for Pre-Health Affiliated Students 3(1) (Spring). http://www2.uic.edu/orgs/jphas/ Murphy-O’Connor C (2001) A pastor’s reflections. The Human Life Review 27(1): 53–62. Peam J (2001) Bioethical issues in caring for conjoined twins and their parents. The Lancet 357: 1968–1971. Segal N (1999) Entwined Lives: Twins and What They Tell Us about Human Behavior. New York: Plume. Thomasma DC, Muraskas J, Marshall PA, Myers T, Tomich P, and O’Neill, JA, Jr. (1996) The ethics of caring for conjoined twins: The Lakeberg twins. Hastings Center Report 26 (July–August): 4–12. van Dijck J (2002) Medical documentary: Conjoined twins as medical spectacle. Media, Culture and Society 24: 537–556. Wenkel DH (2006) Separation of conjoined twins and the principle of double effect. Christian Bioethics 12: 291–300.

Biographical Sketch Christine Quigley is the author of Conjoined Twins: An Historical, Biological and Ethical Issues Encyclopedia and four other books by McFarland and Co. She received her undergraduate degrees from the University of Connecticut and a Master of Arts in communication, culture and technology from Georgetown University. She delivered the keynote address at the first Museum of Funeral Customs symposium (Springfield, Illinois) and consulted with the producers on an episode of the National Geographic Channel’s ‘‘Mummy Road Show.’’ She is a frequent contributor of book reviews to Fortean Times: The World of Strange Phenomena and posts to her blog, Quigley’s Cabinet, daily. She has worked at Georgetown University since 1986, at the University Press, and most recently at the Graduate School of Arts and Sciences, but is currently on medical leave.

Conscientious Objection J Kassner, University of Baltimore, Baltimore, MD, USA D Lefkowitz, University of Richmond, Richmond, VA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Civil disobedience Deliberate disobedience to the law or legally sanctioned rules of a political community for the purpose of publicly contesting the moral acceptability or nonmoral wisdom of one or more of its laws or policies, though not its general claim to legitimacy. Conscientious objection An agent’s refusal to comply with an authoritative standard or rule that applies to him because doing so entails betraying one or more of his deepest commitments. Excuse A consideration that mitigates or eliminates altogether the blame or punishment warranted by a wrong act.

Introduction Conscientious objection involves essentially an agent’s refusal to comply with an authoritative standard or rule that applies to him because doing so entails betraying one or more of his deepest commitments. Most discussions of conscientious objection focus on conflicts between an agent’s legal obligations and fidelity to his or her moral or religious beliefs. This article will do the same. Still, it is important to recognize that although such conflicts figure most prominently in both the theory and the practice of conscientious objection, they do not exhaust it. In parti­ cular, the authoritative standard to which an actor conscientiously objects may be sanctioned by the law but not part of it, as in the case of professional codes of conduct. More controversially, it may be that conscien­ tious objection should be understood to include cases of conflict between fidelity to law and upholding certain nonmoral commitments central to a person’s identity and/or to his perception of what makes his life mean­ ingful or worthwhile. An example might be a case in which an agent deeply committed to being an artist believes that she cannot both uphold one or more of the norms or ideals she believes essential to living as an artist and comply with a particular law. The broad character­ ization of conscientious objection with which this article begins encompasses both of these possibilities, as well as the more common case in which an agent refuses to comply with the law because he believes that to do so

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Integrity Conformity to certain standards that an agent believes truly apply to her. Integrity is of particular importance where the standards at issue play a central role in an agent’s identity and/or the agent’s conception of what makes life meaningful or worthwhile. Mercy The partial or complete waiver by one agent of his right to impose some punishment on another agent, where the decision to waive that right is motivated by compassion for the latter agent’s past, present, or future suffering.

would contravene what morality or his religion truly requires of him. Although the terms conscientious objection and civil disobedience are often used interchangeably, the types of conduct to which they refer are distinguishable both analytically and in practice. Civil disobedience is an essentially political act in that it requires that an actor commit a criminal act in order to publicly contest the moral acceptability of a law or policy. Conscientious objection, in contrast, requires only that an actor seek an exemption from a particular legal requirement or from the hard treatment typically imposed by the state on those who fail to comply with the law. Although many con­ scientious objectors also engage in civil disobedience as part of an effort to reform the law or policy they believe to be unjust, some do not. This is true, for example, of certain religious sects that refuse to recognize any authority other than God and so have no interest in the law’s demands except in those cases in which it prohibits them from complying with what they believe to be God’s commands. Whereas conscientious objection to law has an ancient history, and the legal recognition of a right to freedom of religion has been upheld in many places, albeit somewhat inconsistently, for several hundred years, the practice of accommodating conscientious objectors has only recently become widespread. Initially, such accommodation was limited to pacifists who objected to being conscripted for military service. However, the past few decades have seen

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an explosion in the practice of exempting from various legal requirements those who conscientiously object to them, as well as political and philosophical debate over the propriety of doing so. Examples of cases in which actors have petitioned the state for accommodation of their moral beliefs, sometimes successfully and some­ times not, include physicians’ conscientious refusal to perform abortions under any circumstances; pharma­ cists’ conscientious refusal to fill prescriptions for the so-called morning after pill, or even in some cases to refer patients to pharmacists willing to do so; parents’ conscientious refusal to vaccinate their children; sol­ diers’ conscientious refusal to serve in particular wars or military operations they believe to be unjust (although, unlike pacifists, they do not reject the moral justifiability of war tout court); citizens’ conscientious refusal to pay taxes they believe to be illegitimate; and legal officials’ conscientious refusal to marry homosex­ ual couples. As this incomplete list suggests, the question of when, to what degree, and why conscientious objec­ tors to law ought to be treated leniently by the state whose laws they refuse to obey arises in many domains of human conduct. For simplicity’s sake, however, we largely confine ourselves in this article to cases in which health care professionals such as physicians or pharma­ cists refuse to perform a legally required act, or at least a legally permissible one, because they believe it to be at odds with what morality truly demands.

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right or justice can only be ascertained within the context of a particular set of circumstances in which the interests that ground the right are balanced against various coun­ tervailing moral considerations. Specifically, one must weigh factors such as the health care professional’s inter­ ests in maintaining her integrity and/or the extent to which a failure to accommodate the professional will affect her autonomy against considerations such as the conscientious objector’s professional obligations and the importance of the legally protected interests of the patient or of society that will be set back if the state exempts her from the legal requirement to which she objects. Next, we briefly explore each of these reasons, and several others as well, that frequently figure in debates over the grounds and extent of the moral right to freedom of conscience. It is important to note that the contours of the true scope of the right to freedom of conscience may not mirror the institutionalization of the right. When one weighs the right to freedom of conscience against the countervailing moral considerations, it may be the case that, as a matter of abstract moral evaluation, a conscien­ tious objector ought to be accommodated. However, other considerations related to the institutionalization of the right may lead to the conclusion that the conscientious objector ought not to be accommodated. Specifically, there are considerations related to the rule of law, a lack of relevant resources that might be affected by accommo­ dation, and the needs of balancing the interests at stake in a blanket rule that may run contrary to the contours of the moral right.

The Right to Freedom of Conscience The vast majority of work by applied ethicists writing on the topic of conscientious objection to law concerns the true scope of a person’s moral right to freedom of conscience. That is, most of these theorists seek to provide an answer to the following questions: As a matter of justice, when may the state demand of an agent that he obey the law even though he thinks that it requires him to act immorally, and so have a pro tanto justification for punishing him in the event that he fails to act as the law requires? and When must the state accommodate an agent who believes (rightly or wrongly) that morality forbids her from discharging one or another of her legal obliga­ tions, and/or refrain from punishing her when she acts on that belief? A complete answer to these questions requires an account of both the grounds and the scope of a moral right to freedom of conscience. In other words, it should specify the conditions under which conscientious objectors have a moral claim to be shielded from the legal requirements they believe to be at odds with morality and explain why they have that claim if, but only if, those conditions are met. Whether any particular claim of conscientious objection should be accommodated as a matter of moral

Grounds for the Right to Freedom of Conscience Applied ethicists, as well as practitioners of conscientious objection, typically posit a number of distinct moral bases for a right to freedom of conscience. These include the value of individual autonomy, the need to preserve individual integrity as a condition for living a good life, and the moral importance of governmental epistemic humility in a pluralist society. Although theorists some­ times differ with respect to the true moral basis (or bases) for a moral right to freedom of conscience, they largely agree that the state’s duty to accommodate conscientious objectors – when it has one – does not depend on the correctness of those individuals’ moral judgments. Thus, in explicating each of the arguments for a right to freedom of conscience, it is important to ask why it entails that the state ought to accommodate an agent that it believes wishes to act wrongly. Most adult human beings, at least, are autonomous agents with the ability to choose the values by which we live our lives, the ends to which we are going to direct our actions, and the means by which we are going to pursue those ends. The value of autonomy is frequently thought

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to be independent of the good its exercise creates (i.e., it is noninstrumentally valuable). For some, this value is unconditional, meaning that autonomous choice has value apart from any consideration of the harm or good that may result from the choice. For others, the value of autonomous choice is dependent on the moral correctness of the individual’s choice of ends. This does not preclude a right to choose wrongly, however; for to be autonomous in one’s choice of the right ends, one must have the freedom to choose the wrong ones. In either case, the moral necessity of treating people with respect for their status as autonomous agents entails a pro tanto duty on the state to accommodate conscientious objectors to its laws, even in cases in which those who object do so on the basis of erroneous moral judgments. Although the argument from autonomy is common, the argument from integrity has gained increasing prominence. An individual’s integrity is constituted by his commitment to live his life by a core set of values – the set of values that makes his life meaningful. These commitments are central to an individual’s understanding of who he is so that an individual who is forced to act in a way that compromises his core commitments engages in a kind of self-betrayal. A right to freedom of conscience serves to protect an individual’s integrity. Thus, to the extent that we take personal integrity to be valuable, we should take an individual’s right to freedom of con­ science to be valuable. Importantly, we value individual integrity in its own right – that is, even if an individual’s core commitments and ethical beliefs are mistaken. Thus, whether an individual’s claim to conscientious objection ought to be accommodated as a matter of right does not depend on the correctness of the individual’s moral assessment. In most contemporary political societies, there is a wide array of values to which individuals are committed, and often the political process results in the creation of laws based on one set of values to the exclusion of others. In many cases, we lack the resources to determine which is the correct value/set of values. Some argue that in light of this fact, the government has a duty to account for the plurality of values by exhibiting a sort of epistemic humility regarding the good, right, or moral. Because we cannot know whether the individual or the state is right (or wrong), in those cases in which an individual believes the state is requiring the individual to do something that morality forbids, the individual’s claim of conscientious objection ought to be accommodated, provided no other individual’s rights or interests are harmed. If a law or policy requires an individual to perform an act that she finds morally repugnant, the government is interfering with that individual’s autonomy. Alternatively, the law or policy may be one that, if required, would cause significant damage to the individual’s integrity. If the government is unable to

justify the policy on grounds acceptable to her, the claim of conscientious objection reduces to either an argument from autonomy or an argument from integrity. The difference, however, is that the argument from epis­ temic humility is based on the assumption that there is no discernable answer to the moral question on which the individual and the state disagree. As such, it is not clear that such an account can deal with a case in which we know that the individual is wrong, and the scope of the right would be limited to instances in which epistemic uncertainty exists. Limits on the Right to Freedom of Conscience Having briefly considered several arguments for a moral right to freedom of conscience, we now turn to an examination of considerations frequently thought to pro­ vide countervailing reasons that, at least in some cases, outweigh the state’s correlative obligation to accommo­ date those who conscientiously object to its laws. The first of these can be found in the fact that health care professionals are licensed and regulated by the state. If the market for health care services were an open one in which patients and practitioners met as equals, there would arguably be no good basis for limiting the discretion of the health care professional. However, a patient is at a disadvantage when juxtaposed with the health care provider. Consider, for example, the pharmacist who refuses to fill prescriptions for Plan B; she is protected from competition by the fact that pharmacists are licensed by the state. As such, the market is not free, and a reason­ able cost of such a privileged position is a requirement that pharmacists fill the legal prescriptions of those seeking to have their prescriptions filled. Of course, one might contend that the monopolies themselves are unjus­ tifiable and that the health care industry should operate without regulation. However, the fact that the regulation and licensing of practitioners and procedures protects society from harmful practices and practitioners provides a compelling reason to reject this proposition. Accommodation of conscientious objection will result in an interference with a patient’s legally protected inter­ ests, and if the harm to the interests of the patient is weighty enough, the health care professional’s right to freedom of conscience can be outweighed. The strength of the patient’s interests will depend on a number of factors related to the service being sought and the alternatives available. One relevant consideration is the degree to which the refusal is going to affect the patient’s ability to obtain the service. The alternatives run the gamut from an out­ right denial with no other alternatives available to a situation in which another health care provider in the same office could provide the service with only the most minimal impact on the patient’s interests. Between these

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two extremes are impacts that range from minor inconvenience to major obstruction. Also important is the significance of the interest at stake. A patient may be seeking a service that is necessary for her to remain alive, in which case her interest in obtaining the service is extremely weighty. On the other hand, the service she is seeking may be entirely elective so that although a refusal to provide her with the service does constitute an infringement on her liberty, the setback to her interests may be quite minimal. An example may help to elucidate this point. Imagine a woman who is seeking an abortion to end an ectopic pregnancy. Here, the procedure is essential to saving the woman from severe harm to her health. On the other hand, another woman might be seeking an abortion because she decided late in her second trimester that she simply does not want to be a mother. Although both women have a legal right to an abortion, the first woman’s interest in the abortion is weightier (although, arguably, both may suffice to defeat a claim for accommodation made by a physician who conscientiously objects to abortion). An evaluation of the interests at stake must also take into account the availability of alternative providers. A patient who could easily obtain the service from another professional has a weaker interest in obtaining the service from her first choice than does the patient who must make extraordinary efforts to find an alternative provider. Imagine an elderly man living in Oregon who has recently discovered that he only has a few months to live and that his final days will be filled with pain and a decline in his cognitive faculties. He asks his doctor to aid him in his efforts to end his life before the inevitable decline occurs. If the doctor is the only doctor within hundreds of miles capable of providing the service, then the patient’s interest in having this particular doctor provide the service is weighty. Alternatively, if there are other doctors within a reasonable distance who could assist the patient, then the patient’s interest in having his doctor provide the service is comparatively weaker. The weight of the interests at stake is also affected by whether the health care provider has fulfilled his or her duty to inform the patient of the moral commitments that are or may become relevant to the care being sought. For example, if in the previous example the doctor from whom assistance was being sought had informed the patient of her objection to assisted suicide at the outset, then the patient’s interest would be weakened by the fact that he knew how the doctor felt about assisted suicide. The later the doctor informs the patient of her commit­ ment, the less weight the state should assign to her interest in acting as her conscience dictates, relative to the weight it assigns to the patient’s interest in assistance with ending his life. In addition to a duty to inform prospective patients of their conscientious objection to the provision of certain

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services, health care professionals may also have a duty to ensure that an alternative provider is available. Some health care providers object to such a duty on the grounds that discharging it renders them complicit in what they believe to be a deeply immoral act. Here, we must distinguish between health care professionals’ actual complicity in the commission of a certain act, such as a young woman’s use of Plan B, and their perception that they are complicit in the commission of that act. Some argue that health care professionals are complicit if they play a causal role in the patient’s acquisition of the services that the health care professional finds morally repugnant. A purely causal explanation seems insuffi­ cient, however. Rather, to be complicit one must at least exercise moral agency: I am not complicit in the harm I physically cause to another individual if my causal role was merely a matter of accident or compulsion. On one alternative account of complicity, an individual is only complicit if he intends to aid in the achievement of a collective goal. Thus, for health care providers to be complicit in an act they find to be immoral, they must have a pro-attitude toward the act. However, if they are explicitly asserting a moral objection to the service being sought, it is clear that they do not possess the necessary pro-attitude. This, however, does not settle the matter with respect to the state’s duty to accommodate conscientious objectors. If our concern is with the preservation of indi­ vidual integrity, the fact that an individual believes himself to be complicit may be sufficient for his integrity to be damaged. Here, however, we are one step removed from direct participation in the act thought to be immoral. In which case, it seems reasonable to require that an individual who believes himself to be complicit provide reasons that justify his belief. Considerations of fairness may also militate against exempting actors from legal requirements to which they conscientiously object. Consider, for example, the case of parents who conscientiously refuse to have their children immunized. Near universal immunization provides members of a given society with a collective good, namely so-called herd immunity. This can lead in some cases to the complete extinction of diseases that historically have had enormously detrimental effects on individuals and human society in general or at least to conditions in which the evolution of new virulent strains of these diseases are unlikely to evolve. The collective good in question comes at a cost, however, because immunization poses a small risk of serious harm to those who submit to it. Those who conscientiously object to legally mandatory immunization stand to receive the benefits of herd immunity without bearing any of the cost involved in producing it. That fact may provide a basis for rejecting the claim that as a matter of justice the state ought to accommodate those who conscientiously object to legally

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mandatory programs of immunization for themselves or their children. Thus far, we have focused exclusively on noninstru­ mental arguments that allegedly provide grounds for, or limits on, a moral right to freedom of conscience. It is important to note, however, that instrumental considera­ tions may morally justify a legal right to freedom of conscience with a scope that diverges to some extent from the true contours of the corresponding moral right. These include fidelity to the rule of law and competing moral claims to the limited resources available to the state, both of which may permit or even require that the legal right to freedom of conscience be defined more narrowly than the moral right to act as one’s conscience dictates. However, instrumental considerations may also buttress the case for legal recognition of a right to freedom of conscience, perhaps even in some cases in which no noninstrumental moral argument does so. For instance, a state’s willingness to accommodate conscientious objectors may lead to an increase in its de facto legitimacy, a desir­ able quality at least in a moderately just state. Moreover, accommodation of those who believe a particular law or policy to be deeply unjust keeps those beliefs alive within a society. This in turn can contribute to the society’s pursuit of justice, either because over time members of the society in question come to realize that the conscientious objector’s judgment is in fact correct or because the need to repeatedly rebut the conscientious objector’s judgment requires each subsequent government or generation to reflect anew on the justice of the law or policy at issue.

Conscience as a Basis for Excuse or a Plea for Mercy A few scholars have begun to examine the possibility that a conflict between obedience to law and fidelity to conscience may provide a basis for normative claims other than the assertion of a moral right to freedom of conscience. Specifically, these theorists consider whether the fact that an agent cannot in good conscience act as the law requires ever provides him with an excuse for his conduct or a reason for the state to treat him mercifully. In this section, we offer a brief survey of arguments in support of each of these possibilities, as well as a few of the challenges they face. The discussion in this section draws significantly on David Lefkowitz’s ‘‘Petitions for Conscientious Objector Status: Moral Right, Excuse, or Plea for Mercy?’’ (draft on file with the author). Conscientious Objection as Excuse Let us assume (as the law does) that the objector’s belief that the legally required conduct conflicts with what justice truly demands is mistaken because the law is in

fact substantively just, because the objector has a moral duty to obey it even though it is not substantively just, or both. Some theorists maintain that in certain cases the state (and perhaps others as well) ought to excuse the conscientious objector’s refusal to act as the law requires, meaning that although the objector has acted wrongly he ought not to be blamed or punished for having done so. Exactly what sorts of considerations provide the basis for an excuse is one of the most disputed questions in moral and legal theory (and practice). However, the possibilities can be grouped into three broad categories. The first are failures of rational agency, as in the case of impairments to a person’s ability to recognize certain reasons for his action or to his ability to act on those reasons. The second consist of mistaken beliefs about nonlegal facts, the law, or morality that it is reasonable for a person to hold and that would justify his or her actions if they were true. The third are reasons for action that no person of reasonable firmness would forgo acting in order to comply with a legal rule or moral principle, or to put the point more concisely but also opaquely, cases of duress. The relevant question here is whether any of these sorts of considerations ever provide an excuse for someone who disobeys the law in order to remain true to his or her moral beliefs. In certain rare cases, such as so-called mercy killings, it may be that such a person should be excused on the grounds that his violation of the law was the result of a failure of rational agency. The killer in such a case may offer in his defense the impairment to his rational agency caused by his emotional distress over the victim’s state or the strength of his desire to end the victim’s suffering. Of course, even if mercy killers have a valid moral excuse for their conduct, it may be that other moral considera­ tions militate against the state recognizing it, for example, because creating a legal analog will result in a great many killings that are both unjust and morally inexcusable. More important, few conscientious objectors violate the law because they suffer from some impairment to their rational agency. When a conscientious objector claims ‘here I stand; I can do no other,’ he does not literally mean to deny his ability to choose to act other than as he does. Rather, he asserts that he cannot act other than as he does and act as he believes morality truly requires, or while also preserving his integrity. Indeed, most conscien­ tious objectors would likely vehemently deny that their disobedience to law was the result of defects in their rational agency. It also seems rather improbable that conscientious objectors can, or will, offer a mistake of belief defense for their criminal conduct, whether it is with respect to a belief regarding the law’s requirements, a belief about (nonlegal) facts, or a belief concerning morality’s true demands. Most conscientious objectors appear to be well aware of the laws they violate, and in any case where that

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is not true, it seems unlikely that they would have acted differently had they known that their conduct was criminal. Moreover, acts of conscientious refusal to comply with the law are rarely motivated by disagree­ ment with the state over nonlegal facts. Rather, the dispute almost always concerns the justice of the type of act required by the law, as in the case of doctors who object to abortion or pacifists who object to war. (One contemporary exception to this claim may be those individuals who conscientiously object to immuni­ zation on the grounds that they believe it will subject their child to an unwarranted risk of becoming autistic.) Finally, a mistake of moral belief defense would be of no help to conscientious objectors, even were states inclined to acknowledge it (which they are not). That is so because any mistake of belief defense requires that the defendant publicly acknowledge that his act was the result of a belief he now recognizes to have been false, and in light of which he now recognizes his action to have been wrong. Were the defendant to publicly stand by his earlier judgment, he would at least implicitly deny the charac­ terization of his earlier act as wrong – a claim that is incompatible with asserting that one ought to be excused for one’s illegal actions. Yet few, if any, conscientious objectors are likely to publicly declare that they erred in judging the particular law they violated to be immoral. The last type of excuse, namely duress, engenders the greatest controversy among theorists, beginning with the very question of whether an agent who violates the law under duress ought to be excused for doing so, or whether instead his action ought to be treated as justified – that is, as permissible and so not in need of an excuse. Whereas those legal systems that currently recognize duress as a criminal defense treat it as an excuse, a growing number of legal theorists argue that it ought to be treated as a justification defense instead. It is generally agreed that when an agent acts under duress, the cost to her of abiding by the law in the circumstances at hand is of a magnitude or type that no person of reasonable firmness would choose to conform to the law and bear that cost rather than commit the criminal act the defendant does. A per­ son of reasonable firmness is not a moral saint but merely someone capable of acting with the courage and commit­ ment to acting morally that the law can properly demand. Several scholars have argued that if it would be unfair or unjust to expect a person of reasonable firmness to refrain from an act of a particular (illegal) type in the cir­ cumstances in question, then there can be no moral duty to refrain from acts of that type in those circumstances. In other words, in cases in which an actor is deemed to have a defense of duress for her criminal conduct, her act should be viewed as justified, or permissible, rather than as excused. Suppose this conclusion is correct. In many scholarly examples of duress, the defendant’s reason for violating

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the law is that doing so is the only way he can protect himself or his immediate family from grievous harm or death. It might be thought that conscientious objectors have the same kind of reason for violating the law, insofar as complying with it requires that they betray one or more of their core commitments, fidelity to which they view as a necessary condition for living a worthwhile or mean­ ingful life. If so, then just as the conduct of a defendant who acts under duress is morally justified because he acts to preserve his life (or that of his family), and so all else being equal it should be treated as legally justified, so too is the conduct of a conscientious objector because he also acts to preserve his life, or at least what makes being alive valuable to him. This argument fails, however, because the state’s recognition of a defense of duress (understood as a justification) follows from its judgment that, as a matter of moral truth, the defendant was permitted to act as he did given the need to do so in order to protect his life or the lives of his family. In the case of conscien­ tious disobedience to law, in contrast, the state does not believe that as a matter of moral truth the defendant is permitted to act as he does. Nor does the fact that an agent’s conscience tells him he must not act as the law requires a reason that suffices to justify his illegal conduct. In the state’s eyes, the agent’s moral judgment or con­ science errs in this case; that is, it fails to track the moral reasons for action that truly apply to the agent. That leaves only the personal cost to the agent of having acted in bad conscience as a reason for the state to refrain from punishing him. Of course, as the discussion in the previous section made clear, whether that suffices to justify an actor’s claim to accommodation by the state depends on the weight, individually and collectively, of a variety of countervailing considerations. Even if some cases of duress should be understood as instances in which an actor has a justification defense for his illegal actions, might there be others in which duress really does provide an excuse? Perhaps, but the most compelling examples in support of such a claim tend to be ones that invoke some impairment to an agent’s rational agency, as in the case of a parent overcome by fear for his or her child’s safety who inflicts some grievous harm on an innocent bystander. As previously noted, however, few conscientious refusals to obey the law are the result of failures of rational agency. It appears, therefore, that the fact that compliance with the law will require an agent to act contrary to what he believes morality truly requires will only rarely provide him with an excuse for his illegal actions. Conscientious Objection, Prudence, and Mercy Even if, as a matter of justice, someone who conscien­ tiously objects to a particular law has neither a right to disobey it nor an excuse for doing so, the state may still

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have good reasons to treat that person leniently. For example, it may be prudent for a state to exempt pacifists from military service even if they have no moral right to such treatment. After all, a committed pacifist will be of little use on the battlefield or, in some cases, even in a noncombatant role in the mili­ tary. Moreover, in contrast to the case of those who conscientiously object to the payment of particular taxes, where the state can often use force to seize the assets it demands, the state is unlikely to get what it wants from a conscientious objector to military service, or from a doctor categorically opposed to performing abortions, through the use of coercion. Finally, although punishment may serve to deter those for whom con­ scientious objection to law is a mere pretense, it is unlikely to have much impact on those who do genu­ inely believe that compliance with the law will mean the commission of an (egregiously) unjust act. Thus, even when justice does not do so, the state’s interest in making effective and efficient use of limited resources to achieve its goals may sometimes provide a compel­ ling reason to accommodate at least to some extent those who conscientiously object to one or more of its laws. More controversially, it may be that in certain cases the state should exempt conscientious objectors from the legal requirement to which they object, or at least punish them less when they fail to discharge it, because doing so is the merciful course of action, and states (or better, legal officials) should seek to be merciful as well as just. An agent, A, acts mercifully when out of com­ passion for the recipient, B’s, past, present, or future suffering, A partially or completely waives his right to impose some punishment on B. It may be that when conscientious objectors say, as they frequently do, that if they were to act as the law requires they would be unable to look at themselves in the mirror, or even to live with themselves, that they should be understood as appealing for mercy rather than asserting a right or offering an excuse. In describing their plight, conscien­ tious objectors aim to give state officials a sense of the existential crises they face: If they obey the law, they will commit an enormous self-betrayal and will likely suffer a terrible psychological toll, whereas if they dis­ obey the law, they will also likely suffer a considerable setback to their ability to pursue those projects central to the way of life they wish to lead. What many conscientious objectors may hope for is that the vicar­ ious experience or anticipation of such an existential crises, and the suffering that frequently accompanies it, will arouse in those officials (or the citizenry at large) feelings of compassion, which will lead them in turn to treat the conscientious objectors mercifully.

Although a characterization of conscientious objection as a plea for mercy fits well with some of the pheno­ menology of such conduct, and even the explicit selfunderstanding of some groups’ appeals to the state for accommodation, it does face some considerable chal­ lenges. Foremost among these is the claim that mercy is necessarily incompatible with just legal punishment because it necessarily involves giving people less than they deserve, and so is unjust, because the state lacks the moral standing to waive the right to punishment that is constitutive of merciful treatment, or both. Mercy may also conflict with the moral maxim that like cases should be treated alike, and even if it does not, the state’s practice of mercy may create the appearance that cases that should be treated alike are being treated differently. Finally, some explanation needs to be given for why the state ought to act mercifully – that is, why mercy should be viewed as a virtue that states, or indeed anyone, should try to cultivate. Even if these general challenges to the state’s exercise of mercy can be met, as we believe they can, it remains to explain why conscientious objectors are (especially) apt objects of mercy. One reason to think they are so is that in contrast to common criminals, conscien­ tious objectors violate the law only because they think morality requires it and/or because they think it neces­ sary to preserve their existential integrity. Most people are more likely to empathize with the plight of such an actor, and so treat him mercifully, than they are with a defendant who breaks the law in order to avoid the ‘suffering’ that comes from not being rich or the slight that comes from being disrespected by one’s wife, girlfriend, or peers. As should be clear from this brief discussion, conscien­ tious objection to law continues to present both those who practice it and the states they disobey with a number of difficult moral challenges.

See also: Civil Disobedience; Mercy and Forgiveness; Pacifism; Political Obligation; Professional Ethics.

Further Reading Berlinger N (2008) Conscience clauses, health care providers, and parents. In: Crowley M (ed.) From Birth to Death and Bench to Clinic: The Hastings Center Bioethics Briefing Book for Journalists, Policymakers, and Campaigns, pp. 35–40. Garrison, NY: The Hastings Center. Brock DW (2008) Conscientious refusal by physicians and pharmacists: Who is obligated to do what, and why? Theoretical Medicine and Bioethics 29(3): 187–200. Canto J and Baum K (2004) The limits of conscientious objection – May pharmacists refuse to fill prescriptions for emergency contraception? New England Journal of Medicine 351(19): 2008–2012. Childress JF (1979) Appeals to conscience. Ethics 89: 315–335. Eller C (1991) Conscientious Objectors and the Second World War. New York: Praeger.

Conscientious Objection Enoch D (2002) Some arguments against conscientious objection and civil disobedience refuted. Israel Law Review 36: 227–251. Fenton E and Lomasky L (2005) Dispensing with liberty: Conscientious refusal and the ‘morning-after pill.’ Journal of Medicine and Philosophy 30(6): 579–592. Greenawalt K (1989) Conflicts of Law and Morality. Oxford: Clarendon. Greenawalt K (2007) Moral and religious convictions as categories for special treatment: The exemption strategy. William and Mary Law Review 48: 1605–1642. Horder J (2004) Excusing Crime. Oxford: Oxford University Press. LaFollette E and LaFollette H (2007) Private conscience, public acts. Journal of Medical Ethics 33(5): 249–254. Raz J (1979) The Authority of Law. Oxford: Clarendon. Savulescu J (2006) Conscientious objection in medicine. British Medical Journal 332: 294–297. Wicclair MR (2000) Conscientious objection in medicine. Bioethics 14(3): 205–228. Walzer M (1970) Obligations: Essays on Disobedience, War, and Citizenship. Cambridge, MA: Harvard University Press.

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Biographical Sketches Joshua Kassner is Assistant Professor of Philosophy at the University of Baltimore and Research Fellow with the University of Baltimore School of Law’s Center for International and Comparative Law. He has published on democratic theory in The Journal of Political Philosophy and also writes on global justice, international political theory, and applied ethics. David Lefkowitz is Associate Professor of Philosophy and Coordinator of the Program in Philosophy, Politics, Economics and Law at the University of Richmond. He has published articles on the moral duty to obey the law and its limits in a number of journals, including Ethics, Ratio Juris, Law and Philosophy, Social Theory and Practice, and Philosophy Compass. He also writes on philosophical issues in international law, as well as the ethics of war and peace.

Consequentialism and Deontology M W Hallgarth, United States Air Force Academy, Colorado Springs, CO, USA

ª 1998 Elsevier Inc. All rights reserved.

This article is reproduced from the previous edition, volume 1, pp. 609–621, ª 1998, Academic Press.

Glossary Altruism The view that egoism is not enough for morality and that taking into account other persons’ interests, for their own sake, is a necessary condition for morality. A priori Means ‘before.’ In philosophy, the fact of knowing a proposition prior to experience, that is, without referring to experience to verify its truth. It has been hotly debated over the centuries whether a priori knowledge is even possible. Categorical imperative Kant’s phrase for an absolute moral obligation, of the unequivocal form ‘‘Do X,’’ always. He proposes three tests to ascertain what these are. Consequentialism Any ethical theory that argues fundamentally that right action is an action that produces good results or avoids bad results. Deontology Literally means the ‘science of duty.’ It refers to any moral theory that emphasizes that some actions are obligatory, irrespective of the pleasurable or painful consequences produced. Egoism The view that actions that satisfy self-interest are right. Foundational A fundamental assumption or axiom of a particular theory. A foundational assumption of Kant’s ethics is that humans are autonomous. Liberty (harm) principle Mill’s principle that utility is maximized in societies where the guiding hand of the state is restricted to intervening in one’s personal life only to prevent harm, one to another, but not to prevent you from harming yourself. It prescribes minimum limits

Introduction Consequentialism refers to any of a class of normative theories that will argue that morally right action is action that produces good results. Theories of this type are teleological, in that they assume first an empirically grounded, natural theory of human good as a prelude to deriving moral obligations. Consequential theories in var­ ious ways always subsume moral obligations under the higher umbrella of a question best answered through observation, ‘‘What, given our environment and what is obvious about human nature, is good?’’ By understanding

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to human and government sovereignty consistent with his principle of utility. Maxims What Kant calls a ‘subjective principle of action.’ These are the rules people operate by when they perform actions. Maxims that are indeed moral ones have to meet certain criteria. Prima facie On the face of it, at first glance, out of context. For example, killing human beings intentionally is prima facie wrong, although it is actually permitted in a just war. Summum bonum Latin for ‘highest good.’ A good that is an end in itself, and not a means to a higher order good. In Aristotle’s theory, health is not the summum bonum because it is a means to the summum bonum, which is eudaimonia (happiness). Teleological Emphasizing design, goals, ends, that is, purposiveness in nature. Teleological ethical theory grounds moral obligation in observations about the design, goals, ends, and purposes of human beings. All consequential moral theories are teleological. Utilitarianism An altruistic variety of consequentialism that holds that good results are results that maximize benefits and minimize harms, even if this entails selfsacrifice. Usually, ‘benefits’ is translated as ‘pleasure,’ and ‘harm’ is translated as ‘pain.’ Utility principle Foundational moral principle espoused by Mill and Bentham. Acts are right if they maximize happiness for the greatest number of people. By happiness is meant maximizing pleasure and minimizing pain; unhappiness is vice versa.

what our design suggests constitutes the ultimate goal of human action, our moral obligations logically follow as the ‘right’ way to achieve that goal. The word deontology originates from the Greek words deon (duty) and logos (science). Hence, it means the science of duty. In everyday reasoning, the notion of duty is not a particularly divisive concept. When a person makes a decision, he normally chooses based on a common-sense assessment of his interests and the interests of others in light of his other long- and short-term commitments, a job, the offices he holds, previous promises, and various other obligations. However, a theoretical approach to the

Consequentialism and Deontology

concept of duty is often very technical and the subject of much debate. Deontology refers to any of a class of moral theories, the most noteworthy of which comes from the influential philosopher Immanuel Kant, which argue that there are some moral obligations that obtain absolutely, irrespective of the consequences produced. Whereas the teleological moral theories of the ancient Greeks and the modern utilitarians emphasized the instrumentality of moral obli­ gation as conducive to individual and corporate happiness, or the good life, answering the question ‘‘What is good,’’ deontological moral theories ground moral prescriptions in terms of the question ‘‘What is right?’’ For deontological theories, the moral law is absolute and supreme. If con­ siderations for one’s well-being or the well-being of others contradict a rationally acceptable moral law, obedience to the law is obligatory and must prevail. This is doing your duty for the sake of the duty alone. Kant even went so far as to say that lying to save the life of a friend is wrong. Unlike the observationally grounded consequential theories, Kant’s position is that moral laws are understood a priori and then implemented by the practical reason humans use to regulate action. Although we can go back as far as the Stoics to see a budding concept of deontology mentioned as fundamental to the moral life (e.g., their avowed duty to live according to nature), we find our fullest, most influen­ tial spokesperson for deontological morality in the person of the eighteenth-century philosopher Immanuel Kant.

Consequentialism Variations among consequential theorists are nearly always rooted in different assessments of human nature. If, generally speaking, consequential theories argue that right action produces good results, consequentialists remain a good deal removed from consensus. Just what is the good? What is the good result we are obligated to seek? How a consequentialist answers this question depends on the different answers given to foundational teleological questions such as these: Are humans necessa­ rily selfish? Is it in their capacity to act autonomously? And, are they able to put reason above inclination? Consequential theorists posit a variety of answers to these questions, and their answers imply vastly different normative obligations, both individually and collectively. Each, however, is consequentialist in consistently ground­ ing obligations in the view that right action is that which produces good results. If there is any consensus among consequential theorists, it is a very general sort of agree­ ment, based on observation, that humans are naturally driven to live a full life, to, in some sense, flourish as a human being in a community. This flourishing is what Plato calls justice, Aristotle calls eudaimonia, Hobbes calls peace or security, and the utilitarians call happiness.

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Aristotle skillfully captures what each of these theor­ ists generally mean by the natural human drive to live a full life, to flourish. He observed that there are many human goods that people strive for, such as health, money, friendship, power, and fame. A middle-aged man cuts down on his fat intake for health reasons, a young man saves to buy a motorcycle, a rich person creates a foundation to support philanthropic causes, and a young music student diligently practices the guitar. However, Aristotle was astute enough to ask if, among all good things, there is a highest human good, or summum bonum. It would be something all people want, not as a means to other goods, but as an end in itself. This ultimate goal would be the final desire of all human striving, that is, justice, security, eudaimonia, or happiness. Each of these posited ‘ends in themselves’ serve as proposed theoretical definitions of what it means to flourish as a human being. Consequential theorists will universally agree that the summum bonum, this ultimate end of human striving, is not amenable to a priori logical proof. Nevertheless, a close observation of human behavior shows that all human pursuits are a means to, or constitutive of, living a full, flourishing life. This inability to logically prove an ulti­ mate end of human striving, is, Mill argues, the case with all questions of ultimate foundations. Foundational prin­ ciples are, at their best, generalizations inferred from empirical observation. At their worst, they are ad hoc assumptions used to derive pet obligations a particular theorist feels strongly about. So, consequential theorists generally agree that right action is that which produces good results, but disagree on the details of what the nature of this ‘good’ is because they disagree on fundamental questions about human nature. Additionally, consequential theorists disagree on a deeper practical issue concerning the good. Who’s good gets precedence when a moral agent makes deci­ sions about alternatives that each produces good results, contributing to this variously defined idea of what con­ stitutes human flourishing? Should the good of the self come first? Are we obligated to sacrifice for the sake of a greater good of the community? Are the criteria for human flourishing objective (e.g., good job, talents utilized, healthy family) or subjective (maximize plea­ sure/minimize pain)? What is the state’s proper role in creating conditions where activity that produces good results are maximized? What is the proper integration between concerns for the common good and my private good? Practical considerations like these are the source of much of the debate in consequentialist circles. Now it is time to survey the chief varieties of consequential theory. For the sake of brevity, the quintessentially famous consequential theory called ‘utilitarianism,’ championed by Jeremy Bentham and John Stuart Mill, will be most substantively addressed.

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Egoistic Consequentialism Egoistic versions of consequentialism argue that when moral agents consider courses of action, they will be or should be motivated by self-interest, irrespective of aggre­ gate consequences produced for the community, that is, unless those community consequences best satisfy selfinterest. Self-interest is the egoist consequentialist’s answer to the scope question, Who’s good counts when I have to decide between competing actions that produce good results? Notice the operative words ‘will be’ or ‘should be.’ The egoistic consequentalist who holds that agents ‘will be’ motivated by selfish considerations must defend the view that persons are motivated by self-interest, necessa­ rily. This is a descriptive theory, and normative talk about ‘should’ and ‘ought’ loses most of its moral force. On this account, it makes no sense to call for sacrifice when sacri­ fice, unless it produces something the self wants (like honor), is impossible. In this view, the only two normative issues at stake are those of method and the level of com­ munity intervention. The first suggests that agents ought to be taught to think clearly and critically so as to best calculate what the self wants and the most effective method to achieve it. This might, as Hobbes argues, entail cooperation given some assurance to personal security enforced by the state. The second issue concerns the community’s need to structure an adequate system of rewards and punishments in order to steer its citizens’ necessarily hedonistic drives in directions that effectively balance self-interest with the larger community’s interest. An egoistic consequentialist who argues that humans ‘should’ pursue personal interest admits that humans are not determined by self-interest considerations in moral decision making, but they should be. This variety of egocentric consequentialism is prescriptive about its hedonism, arguing that beneficial consequences are max­ imized for society and the individual when persons pursue their own ends, that is, mind their own business. Ayn Rand would fit in here. This view defends a belief in human autonomy but criticizes personal and social altru­ ism as more harmful than good, and hence wrong by consequential standards. The prohibition (twentieth) amendment to the U.S. Constitution serves as a good example of an idealistic and socially altruistic law that was morally wrong in contradicting the individual and hence the common good. Illegalizing liquor made more people feel oppressed on a personal level and eroded respect for law on the public level. It produced bad results. Prescriptive egoistic consequentialists have the same concerns over method and community intervention as the descriptive egoistic consequentialist, although the prescriptive variety has, in accepting a notion of human autonomy, a broader range of alternatives than personal and social conditioning.

It should be noted that egoism as a set of consequenti­ alist theories vaguely defines a range of views that might, depending on interpretation, include a large host of posi­ tions. The character-centered theories of the Greeks, most notably Plato and Aristotle, are often referred to as enlightened egoist positions, because they argue, quite well, that the path of virtue and excellence is, given human nature, the way human beings are fulfilled in this life. In Plato’s case, this virtue produces the good result of harmony of soul and harmony in the community, which Plato essentially defines as personal and corporate justice. The social contract positions of the ancient Hebrews (via Abraham), Thomas Hobbes, and lately John Rawls serve as popular religious and rational models for how the human person can achieve the good results of right rela­ tionship with God, security from the brutality of anarchy, and distributive justice. These can also be interpreted as egoistic positions, although based on diverse metaphysical assumptions about the origin of the universe and what motivates human nature and why. With each of these theories, note the agreement on the premise that right action is action that produces good results. What this good is and who’s good is most important generate the disparity in these positions.

Altruistic Consequentialism Altruistic consequentialism is really a euphemism for utilitarianism. These theories argue that in situations where self-interest and the interests of the community clash, the self is obligated to sacrifice its interests for the good of the community, assuming of course that the benefits obtained by the larger community exceed those to be gained by the self. Utilitarianism typically answers the question ‘‘What is the good?’’ as actions that promote happiness, with happiness defined as acts that maximize pleasure or minimize pain. This is a prescriptive formula­ tion with greater normative force, because it defends the human capacity to freely choose the greater good even to the detriment of self-interest. Both Bentham and Mill fall into this camp. Mill even goes so far as to say that personal sacrifice for the greater good of the community is the highest virtue that can be found in human beings. ‘‘Though it is only in a very imperfect state of the world’s arrangements that anyone can best serve the happiness of others by the absolute sacrifice of his own, yet so long as the world is in that imperfect state, I fully acknowledge that the readiness to make such a sacrifice is the highest virtue which can be found in man.’’ However, Mill argues, unless the good results are produced, the sacrifice is intrinsically worthless. ‘‘The utilitarian morality does recognize in human beings the power of sacrificing their own greatest good for the good of others. It only refuses to

Consequentialism and Deontology

admit that the sacrifice is itself a good. A sacrifice which does not increase, or tend to increase, the sum total of happiness, is considered wasted.’’ Mill insists that the need for these sacrifices is symptomatic of an imperfect world, although in the best social conditions this dilemma infre­ quently presents itself. A society properly educated and ordered according to consequentialism (his principle of utility) is to Mill the best framework for harmonizing the interests of the individual with those of society. More on how Bentham’s and Mill’s positions cash out in a moment. Idealistic Consequentialism This version of consequentialism is the brainchild of G. E. Moore. Also called ideal utilitarianism, it likewise makes good results the criteria for rightness and wrongness in moral decision making, but argues that the attempt to define what the good is is futile, because good itself is indefinable. Hence, it makes sense that Moore refuses the strivings of humanity to a specific good such as, for example, gaining pleasure and avoiding pain. He espoused instead a richer view of human consciousness in his Ethics. By Moore’s account, goodness is an intrinsi­ cally indefinable quality or property that may issue from many experiences such as contemplation, gaining new knowledge, or aesthetic enjoyment. The real debate here is whether these human experiences are actually reducible to gradations of something like pleasure and pain. For it seems Mill’s emphasis on quality in his con­ sequential scheme can and does absorb the intellectual and the aesthetic into a higher order of pleasure. One’s view on this issue depends on the efficacy of Moore’s argument for good as an indefinable quality. It has exerted considerable influence on the philosophical community. A detailed account of Moore’s position would require another article. Consequential Decision Making Let us assume for a minute that some variety of conse­ quentialism in its descriptive or prescriptive forms is true. Each theory makes some good arguments. How are moral agents to calculate the possible good results of their moral decisions so as to determine what course of action is morally right in a situation? And what is the larger com­ munity’s role in facilitating the best possible accommodation between competing claims of maximiz­ ing self-interest and maximizing the common good? To restate an earlier formulation, ‘‘If good results indeed determine what action is right, what makes those results good, and who’s good counts?’’ Jeremy Bentham and John Stuart Mill, the quintessentially famous consequential thinkers, serve as good examples to illustrate how moral obligation using a results model can be worked out. For a

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full view of different ways consequential morality is cashed out, familiarize yourself with the ancient Greeks, the social contract theorists, in addition to the following utilitarians. Bentham

As an example of disputes over consequential moral deci­ sion methodology, consider the altruistic consequentialists, that is, utilitarians, Jeremy Bentham and John Stuart Mill. Bentham was a philosopher and legal reformer interested in changing the British legal system into what he argued was a fairer model that meted out rewards and punish­ ments according to the beneficial or deleterious consequences produced by the questionable act. Bentham was frustrated by the fact that a hungry peasant in Britain would get 20 years in prison for stealing an apple from a street vendor, while a more affluent white-collar criminal (e.g., Michael Milken), who caused much greater harm to society, would get a relatively mild sentence. Bentham, like many other minds in the nineteenth century, was enamored with the accomplishments of science and held out high hopes for the scientific meth­ od’s ability to also solve moral and social problems, in addition to practical problems of health, food, and indus­ trial production. To support his self-avowed legal consequentialism, Bentham wrote Introduction on the Principles of Morals and Legislation, a carefully written guide on his method for correct consequential moral decision making. In this book, Bentham developed what he called a ‘hedonic calculus,’ a quantifiable scheme whereby levels of pleasure and pain could be rigorously and accurately assessed to determine the consequential effects for the various alternatives in a moral decision. The choice that produced the most pleasure or the least pain, as evaluated using various criteria such as intensity, duration, and propinquity, identified the correct moral course of action. Fairer laws would be established, and social rewards and punishments would be meted in pro­ portion to quantifiable results verified by this calculus. Now this might seem to be, prima facie, how we do in fact make many of our moral judgments. It seems to work in simple cases, like what game to play with friends. And yet Bentham’s method is vulnerable to criticism using some simple case situations. For example, suppose a per­ son is a compulsive peeping tom because that person enjoys voyeurism. In Bentham’s calculus, if the victims are ignorant, the agent does not get caught, and his actions generate intense pleasure, it seems the act is not only acceptable, but a moral obligation according to the calcu­ lus. Examples like these defy common-sense perceptions about justice and rights. The same difficulty would emerge in other cases as well, for example, the justifia­ bility of carefully framing an innocent person for a crime to satisfy a community’s desire for justice and, hence, to maximize corporate pleasure.

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Mill

Mill’s famous brand of consequentialism owes much of its substance to Bentham’s ideas, for Bentham knew Mill as a child and was a friend and colleague of Mill’s father. Mill figured out Bentham’s vulnerability to the aforemen­ tioned criticism and thus offered some cogent amendments to Bentham’s views, while at the same time retaining the position that consequences, in terms of levels of pleasure and pain, is nonetheless the founda­ tional principle of moral action. Mill argued that restricting pleasure to quantifiable pleasures ignored quality as a vital consideration in the moral situation. This concern for quality in the agent’s attempt to maximize personal happiness is not a novel idea. Epicurus supported a similar position in suggesting that pleasures of the mind are superior (purer) than bodily ones. They are not, as Epicurus says, ‘mixed.’ Epicurus argues that bodily pleasures are usually accompanied by associated evils as well, for example, hangovers for alco­ hol and jealousy for physical love. Regarding this quality/quantity issue, Mill asks a nowfamous question, ‘‘Is it better to be a pig satisfied than Socrates dissatisfied?’’ According to Bentham, it seems one ought to or will (Bentham seems at times to equivo­ cate between descriptive and prescriptive statements) choose the quantifiably pleasurable life of the pig, while, as Mill asserts, no one who has experienced both sides of this dilemma would choose the more vulgar existence. Figuratively speaking, only the pig would. This qualita­ tive factor has plenty of mundane practical applications, too. For example, should I read pulp fiction or a classic? Listen to Mozart or to pop music? Watch Citizen Kane or championship wrestling? If you ask people who have experienced each, who know and understand each, the higher quality pleasure is preferred. Mill puts it plainly, ‘‘Of two pleasures, if there be one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, that is the more desirable pleasure.’’ Another way the quantity/quality issue is broached in contemporary discourse is in the distinction between act utilitarianism (consequentialism), and rule utilitarianism. Bentham’s emphasis on the quantifiable assessment of acts placed him in a position to have to accept problematic examples to remain consistent. Mill tried to overcome this by arguing that a holistic determination of beneficial consequences required asking this general question: ‘‘What general types of acts, as a rule, tend to maximize beneficial consequences over time?’’ When you take counterintuitive cases like the peeping tom example and generalize them into a social norm of behavior, what, prima facie, seems at first to support the consequentialism, it turns out, thwarts it when viewed as an acceptable pattern of behavior over time. The common good is diminished. Hence, peeping tom behavior is wrong, in spite of exceptional cases.

What Mill has done through his emphasis on conse­ quence maximizing rules of behavior is to salvage the possibility of making respect for human rights consistent with consequentialism. Let us suppose that researchers are very close to discovering a cure for sudden infant death syndrome, or SIDS, and the discovery of this cure will save 10 000 infant lives per year. Also suppose that the only way this cure can finally be discovered is through painful and fatal experimentation on ten healthy newborn infants. Although Bentham, as an act consequentialist, would have to justify this experimentation, Mill, as a rule consequenti­ alist, would not. For what would a society be like if acts of this type, as a rule, were generally accepted? This rule, by ignoring a right to life, would make people insecure and afraid, perhaps rebellious, and thus, would significantly diminish the collective happiness of that society. Therefore, according to Mill’s richer, rule-oriented, quality-emphasizing consequentialism, persons should take the responsibility for developing an enlightened notion of self-interest that emphasizes seeking pleasures of quality. Likewise, the state should structure educa­ tional policy and the broader system of social rewards and benefits according to higher concerns for quality in maximizing the common good. This includes respecting rules that honor human rights in ways that cultivate the tenuous balance between personal and community happiness. Mill also amends Bentham’s consequentialism by more cogently broaching the difficult task of harmonizing per­ sonal autonomy in pursuing one’s own ends (pleasures) with the state’s mandate to maintain a civil community life (corporate pleasure). He does this through his pro­ posed ‘liberty principle,’ or ‘harm principle,’ as it is also called. Based on astute observations about what makes human beings happiest as members of a community, the harm principle places a (happiness-maximizing) limit on the autonomy that adults may exercise in pursuing their ends in a community, while at the same time limiting the state’s prerogative to intervene in the personal lives of its citizens. Persons may do anything free of government intervention to the extent that their behavior does not harm someone else. The government may not intervene in someone’s life to protect that person from himself. Mill argued that the happiness of individuals and society is maximized when persons are at liberty to partake of even potentially self-destructive behaviors. Thus, on Mill’s account, smoking should remain legal, but may be banned in restaurants. Mill articulated it this way, ‘‘Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.’’ By Mills account, this harm principle is therefore a necessary condition for harmonizing beneficial consequences for person and society.

Consequentialism and Deontology

General Criticisms Following are several general criticisms of consequential moral theory. Many more specific criticisms that apply to specific consequential theorists, that is, the Greeks, Hobbes, Rawls, Moore, and so on, deserve further study but are beyond the scope of this article. 1. A common criticism of all versions of consequenti­ alism concerns measuring levels of pleasure and pain produced in a moral decision. Exactly how do we measure it? Whether you focus on quantity or integrate quality considerations, it is still nearly impossible to accurately predict which act over time will maximize good conse­ quences. And in Mill’s argument that we should concern ourselves with act types as a rule, we at best can only claim to have a general idea as to which act types tend to produce the best results. But specifically in practice, how can I possibly determine accurately what impact my moral decision might have on, say, my yet-unborn grand­ children? To calculate, it seems I am forced to construct arbitrary boundaries on the range of calculation. At worst I am pressured by time considerations to make a decision without adequate time to make a thorough assessment. These considerations can and often do countermand the purpose of consequentialism. Mill answers this criticism merely by appealing to humankind’s expanding wisdom over time, arguing that we have had thousands of years of collective human experience to inform us as to which decisions to make. In a limited sense, this is true. 2. Another criticism of consequential morality concerns the fact that, to be consistent, it is forced to be exclusively forward looking. This is problematic. For example, suppose a criminal violates Mill’s harm principle and murders an innocent civilian in cold blood. The culprit is convicted of the crime beyond a reasonable doubt. If only consequences matter, the sole, justifiable concern of the judge sentencing the convict must be future concerns, for example, satisfying the public’s need for security from this person’s maladjust­ ment, quenching their justifiable desire for justice, or the need to make the punishment harsh enough to deter other potential felons. But what about backward-looking reasons? What about the appropriateness of punishing the culprit for some asocial behavior done in the past, such as murder? We naturally think of the past as critically relevant to the moral domain, especially in situations of this type. This problem of needing to be forward looking also works with less heinous moral issues like promise keeping. A promise made in the past is morally important despite the fact that breaking it for some future enjoyment might increase the total of pleasure. These issues demonstrate some problems consequentialists have with (intrinsically valuable?) concerns for justice. 3. In still another criticism of consequentialism, R. M. Hare, in his book Freedom and Reason, argues that the

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supposed distinction between act and rule consequentialism collapses into the act variety. In the aforementioned peeping tom example, Hare would argue that if act con­ sequentialism justifies peeping tom behavior, it follows that rule consequentialism will justify it, too. For in all situations with the same conditions, one can easily say that, as a rule, one ought to act this way. Hare argues that when rule consequentialists reject these types of excep­ tional cases, they do so by altering the parameters of the situation. In the peeping tom example, the rule conse­ quentialist would have to assume the behavior will become public knowledge with the instigation of the rule, and this redefines the situation being analyzed. If Hare is right, consequentialism’s tenuous connection to human rights remains. 4. A final criticism of consequentialism concerns the common-sense notion that motives have intrinsic moral value, something the consequentialist denies. A rule con­ sequentialist will instead extol the virtues of good motivation as an instrumentally valuable state of mind that tends, more often, to produce good results. Suppose someone is drowning in a lake at a public park. One person knows the victim to be rich and famous and hopes for both publicity and wealth from rescuing the individual. He is a good swimmer and he successfully rescues the struggling swimmer. In a similar case, suppose the victim is neither rich nor famous. In this case, a different person comes along who recognizes a duty to protect life regardless of personal gain and risk. But this person is a weak swimmer. He attempts the rescue and they both drown. In these cases, the consequentialist will ascribe greater moral value to the first scenario. To Mill, the latter rescuer’s good intentions are ‘wasted.’ There is an inherent virtue and a nobility about the latter situation that most recognize but that consequentialists must dis­ miss to remain consistent. A later contemporary of Bentham and Mill, Henry Sigwick, cogently addresses this last criticism by drawing an important distinction between notions of right and wrong and praise and blame. In the drowning example, Sidwick would argue that this agent’s action was morally right in that it pro­ duced good results. However, the agent still merits blame for acting from a blameworthy motive. Likewise, the latter agent did something wrong in not producing bene­ ficial results, though he nevertheless is of praiseworthy character for owning pure motives in the situation. The consequentialists’ reluctance to ascribe intrinsic value to motives and difficulty in accounting for criticisms based on justice and rights introduces the discussion of deonto­ logical ethical theories, a wholly different class of moral theories. They argue that obedience to moral principles is an absolute obligation, and not instrumentally contingent on the production of beneficial results.

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Deontology Kant We will confine the lion’s share of the discussion of deontology to the well-articulated, rigorously defended duty ethics of Immanuel Kant, with some time later devoted to the deontology of W. D. Ross. It was Kant’s contention that if moral obligation was going to be uni­ versally binding on humanity in the truest sense, it had to be grounded in bedrock, logically, consistent, a priori rational principles. To pull this project off, Kant works out a deontic scheme not dependent on empirical obser­ vations about human behavior or the world humans inhabit. In this way, Kant salvages, he thinks, the right to assume the truth of human autonomy.

Kant disagrees. In his deontological view, only the third person’s motives have moral worth, because they are rationally dedicated to dutiful obedience to moral princi­ ple. The second person’s motives lack moral worth because they are grounded in a contingent, behavioral law of nature, not in an autonomously chosen will. It just so happens that this second person’s particular phy­ sical constitution is susceptible to pity, which is ultimately no different than the way a lion’s particular constitution makes it inclined to ruthlessly kill and eat zebras for food. In the case of the pitiful giver and the lion, praise and blame are irrelevant, even though the constitution of the second person is, no doubt, socially useful. The second person, moved by the same predictable class of forces that motivate a serial killer or a compulsive gambler, does not give a genuine moral response.

Moral law versus the law of nature

Intentions

Why does Kant insist that genuine moral living consists of a rational dedication to do one’s duty for duty’s sake alone, independent of the consequences produced? One way to look at Kant’s thinking on this position is to elucidate his emphasis on the importance of making moral obligation something that is ontologically above the system of nature. Kant lived in the optimistic excitement following Newton’s scientific discoveries. During this period, many eminent philosophers genuinely thought it was a matter of time before science would discover the causal relationships that explain every phenomenon that occurred in the universe. To Kant, this was a troubling hypothesis for moral responsibility. Consequential mor­ ality, Kant argues, grounds moral obligation in observations about the desires, strivings, and ends of human action. If this were true, Kant showed, then moral obligation was confined to the natural order, and being confined thus, would inevitably be predictable in terms of cause and effect. If this were true, the delibera­ tions and strivings of humanity would ultimately reduce to a descriptive behaviorism, and hence destroy the dee­ per meaning of words like ‘ought’ and ‘should,’ ‘praise’ and ‘blame.’ Genuine human morality, Kant argues, must be grounded in rational principles beyond the predictable causality of laws of nature, in that an authentic, autono­ mous human will be dedicated to duty for duty’s sake, in spite of the predictable vicissitudes of natural inclination. An example will help. Envision three persons watching the Jerry Lewis Telethon. The first person watching gives money because he needs a tax deduction for that fiscal year. The second individual sees a crippled little child on the television, is moved with pity, and, in tears, sends in a donation. The last person has indifferent emotions about the need but recognizes a rational obligation to help if she can. Most people, consequentialists included, would say that the second person’s decision to give has moral value.

Kant’s contrast between the moral law and the law of nature explains why deontological morality is grounded in human motivation and not in consequences. Ascription of moral worth rests totally with the agent’s intentional state. Kant says, ‘‘There is only one thing that is good without qualification, and that thing is the good will.’’ There are many things, Kant states, that are viewed as good, for example, intelligence, good fortune, and char­ acter traits. But these things can be used for evil ends unless they are under the control of a person with the ‘good will.’ Only this is intrinsically valuable. ‘‘Considered in itself, [the good will] is to be esteemed beyond com­ parison as far higher than anything that it could ever bring about merely in order to favour some inclination or, if you like, the sum total of inclinations.’’ Kant takes this still further. Suppose the good will is ‘impotent’ and wholly incapable of bringing about whatever it tries to accom­ plish. He says that ‘‘even then it would still shine like a jewel for its own sake as something which has its full value in itself.’’ To transcend the predictable system of nature, the ‘good will’ must be autonomous and thus rationally generated, because it is reason alone that enables the human person to overcome myriad variations of inclina­ tion and desire. Good will and maxims

Kant sets humans apart as unique beings endowed with a special capacity to make genuine moral decisions grounded in a rationally governed, autonomous will obe­ dient to moral laws, irrespective of natural desires or inclinations to the contrary. But what are the true moral laws? And how does the error-prone person assess the true ones? In Kant’s terminology, reason communicates to the mind things it should do according to rules he calls max­ ims. How does this process work? To illustrate, suppose I am leaving the grocery store and I notice that an elderly lady is encumbered with a load of groceries by the store

Consequentialism and Deontology

exit. I decide it is my duty to open the door for her. In this case, Kant argues, my mind is operating according to a subjective principle of action, a maxim, of the following form: ‘‘When I infer that a person needs help and I have the capacity to help, I have a duty to help.’’ Acting according to maxims is not necessarily a conscious mental activity, although the mind is continually making such judgments about alternatives of action according to these principles for action. Naturally, not all maxims necessa­ rily cash out absolute moral laws. The aforementioned person moved by pity to give to the Jerry Lewis Telethon is acting according to a maxim of action, but the maxim is not a moral law and the intentions have no moral worth; it does not express a ‘good will.’ In this case, the person acts according to a contingent maxim grounded in a predict­ able and natural cognitive dissonance: ‘‘When something moves me with pity or sympathy, take action to assuage guilt or restore homeostasis.’’ This is not an autonomous, rational response. Categorical imperatives

Kant’s deontological morality, as you might suspect, offers a rational test the agent can use to determine whether the maxims the mind will deliberate on are in fact maxims of genuine moral worth. Maxims of supreme moral worth take the form of what Kant calls ‘categorical imperatives,’ that is, they are necessary, and of the unconditional form ‘‘Do X,’’ not of the contingent form ‘‘If you want Y, do X.’’ Human lives encounter scores of conditional maxims, too, and by not being categorical, are not necessarily wrong. These are the prudential judgments that make up most of life. For example, we know that physical fitness is desirable as conducive to a long, vigorous life. Hence, an exerciser might operate according to the hypothetical maxim, ‘‘If you want to be healthy, get some regular exercise.’’ Kant calls these types of maxims hypothetical imperatives. Thus, although we can argue with some suc­ cess that people have a duty to exercise, we cannot argue that they have an absolute moral duty to do so. Categorical imperatives, as a different species, are optionless. Kant’s criteria for determining whether a maxim for action is a genuine universal moral principle, remember, must be grounded in a priori principles to avoid begging a key question of objective rational foundations. His three criteria rely on the principle of contradiction, and each is a necessary condition to ascribing categorical moral value of the maxim at stake. 1. Universalizability: Act only on that maxim through which you can at the same time will that it should become a universal law. 2. Means/ends: Act in such a way that you always treat humanity, whether in your own person or in the per­ son of any other, never simply as a means, but always at the same time an end.

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3. Autonomy: Act so that you treat the will of every rational being as a will that makes universal law. To briefly illustrate how these criteria (tests) work, let us look at Kant’s example of promise keeping. A person in desperate need is driven to borrow money to get by. He reasons that he will promise to pay back the money with­ out ever really intending to do so. Could breaking a promise ever be a universal moral law? It would contra­ dict itself. For if every promise were broken, the purpose of the principle would become meaningless and inert, for no one would promise anything, knowing beforehand that each promise would be meaningless. Truth is, the capa­ city to break promises is patristic on the moral law of promise keeping and requires the assumption of the mor­ ality of promise keeping to sustain itself. Because breaking promises cannot be universalized without contradiction, the issue is settled. The promise must be kept because keeping one’s word is an absolute moral law. And yet when a maxim cannot be universalized with­ out contradiction, it will also fail the other criteria as well. In the breaking of a promise, the person also violates Kant’s second criterion for categorical assessment, for in the breaking of the promise, one is treating someone as a means only, and not at the same time an end. The word ‘only’ is of practical importance here, because in our many personal interactions we usually rely on other persons and groups as a means without violating a moral rule. If the destitute person were to pay back the money as promised, he nevertheless would still use the giver as a means to get out of a tough situation, but he would not be using that person as a means only. As Kant states, For then it is manifest, that a violator of the rights of man intends to use the person of others merely as a means without taking into account considerations that, as rational beings, they ought always at the same time to be rated as ends, that is, only as beings who must them­ selves be able to share in the end of the very same action.

Finally, if a maxim for action fails to meet the first two criteria for categorical imperatives, it will fail the third one also, to ‘‘treat the will of every rational being as a will which makes universal law.’’ In short, because each rational agent is an autonomous will given the capacity to know and obey moral laws, they are entitled to the respect and dignity due to a being of that type. Hence, in the case of promise breaking, the maxim contradicts itself, treats humanity as a means only, and fails to accord the dignity and respect due to the lender as a rational, auton­ omous agent. Human nature

The concept of duty as primary in deontological moral systems entails a unique view of morality in light of true facts about human nature. Kant offers a rational

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methodology to determine whether the maxims a moral agent acts upon are in fact absolute moral rules. And yet the notion of duty is important in that human beings are a species that often chooses to follow other inclinations in spite of its knowledge of moral obligations. This is an important difference between the teleological position of the consequentialists and the deontological thinkers. The Greeks and the utilitarians were concerned with understanding what, for human beings, is moral given reliable observations about their specific nature as crea­ tures. Deontological morality, as evidenced in Kant, is concerned with what is moral in spite of the nature of human beings. Genuine morality applies to all rational beings, of which humans are an imperfect and easily distractible example. The concept of duty would be unne­ cessary, in Kant’s view, for perfectly rational beings, for those beings would always understand the purely reason­ able moral law and act on it. Humans, though, as imperfectly rational beings, require the concept of duty as a practical motive for action that is necessary to sub­ ordinate conflicting human desires to the rational, autonomous, law-abiding will. This analysis again suggests why intentions (good will) are morally valuable while consequences are not. Right and wrong motivations can obtain in situations where the correct action is executed by both parties. A shopkeeper can be honest in his business practices because he wants his business to be successful, or he can be honest because he recognizes a rational obligation to dutifully obey the moral law. The first motive merely coincides with what duty requires and lacks genuine moral value, while the latter motive expresses obedience to an absolute moral maxim that expresses a good will and, hence, has genuine moral worth. Such examples are not meant to be compli­ cated, and Kant himself argued that this perspective on duty was neither original nor esoteric. Everyone, he argues, knows that doing something you are morally obligated to do and doing something you want to do are two different things. And we all know that the former is meritorious in a unique way; the latter is not. Perfect and imperfect duties

Thus far in the discussion of deontology, particularly Kant, one might think that duties are duties, period, and hence must be obeyed. This is true of categorical impera­ tives. But if you reflect a minute, you can no doubt think of situations where different duties seem to conflict and a decision must be made as to which one to fulfill. In these cases, Kant recognizes an important distinction between what he calls perfect and imperfect duties. This distinc­ tion allows us to resolve many of our moral dilemmas. In short, perfect duties are defined as negative duties, that is, associated with the moral requirement not to cause harm. In many, if not most, cases, this implies a right to redress, including many times, state intervention, if the

violation of a perfect duty harms you. Perfect duties are phrased as maxims that lend themselves easily to verifica­ tion as categorical imperatives by Kant’s three tests for moral maxims. If someone punches you in the nose for no apparent reason, they have violated a perfect, categorical duty. The rule ‘‘Everyone ought to punch anyone in the nose whenever they are so inclined’’ cannot be universa­ lized without contradiction, treats humanity as a means only, and violates the dignity and respect due to rational, autonomous moral agents. The same analysis holds for most other negative duties, such as the duty not to steal, to lie, to murder, to molest, and so on. Imperfect duties refer to positive duties, that is, pru­ dentially bringing a positive consequence to a situation. When these duties are phrased in the form of maxims, they most often do not cash out as categorical moral obligations. They are hypothetical, and hence are of the form, ‘‘If you want X, do Y.’’ With imperfect duties, we can only say with assurance something like the following: ‘‘It is praiseworthy to do acts of this type.’’ However, in specific situations, the failure to fulfill the imperfect duty does not entail a right to compliance or enforcement by the receiver. If you are driving down the highway and you notice a motorist stranded with a flat tire, do you have a categorical duty to stop and help? No, and yet it would be nice to help, and furthermore, we praise people who do acts of this type when they can. Likewise, you would laugh if the stranded motorist claimed a right to your help in fixing the flat, and expected the state to fine you if you did not stop to assist. The duty to give to charity would also classify as an imperfect duty. You can argue generally that persons should give to charity, but as a member of the Boy Scouts of America you cannot expect that any individual is categorically obligated to give to your organization, nor could you expect the police to arrest those who did not give to your cause. And yet, persons who have a ‘good will’ will help in similar ways. The virtues of Kant’s deontology

This has been a rough-and-ready recount of Kant’s com­ plicated rational scheme for the real possibility of a genuine human morality grounded in an autonomous will that is above the predictable system of nature. His views derive from an exhaustive metaphysical and epis­ temological philosophy that attempted to overcome David Hume’s incisive arguments against all attempts to demonstrate the possibility of certain knowledge. Kant’s deontology does have practical virtues that deserve mention. 1. Kant was wise to emphasize the valuable role that intention plays in the ascription of praise and blame to moral agents. 2. His desire to ground morality in an autonomous will that somehow can ‘rise above’ the predictable system of

Consequentialism and Deontology

nature is foundationally crucial to our belief in moral responsibility. This is just as important today as it was in Kant’s time. For a universe in which human behavior is reducible to merely a higher order of animal behavior minimizes morality to a need for conditioned social con­ trol and abdicates a rich view of personal accountability. 3. His view respects contemporary notions of human rights. The tests for ascertaining categorical moral rules omit any opportunity for violating the dignity and respect due all rational agents, regardless of perceived social benefit. Rational, autonomous persons who ‘can do other­ wise’ deserve the respect due to free agents who possess genuine moral responsibility. 4. His deontology correctly requires that persons never treat themselves as unique or special, deserving consideration as exceptional cases. Such a consistency requirement entails that if I have reasons for doing some­ thing categorically moral, those reasons must be adequate for anyone reasoning in that or similar cases. 5. Finally, Kant’s deontology, in defending a rich view of human freedom, lends itself to support for the classic notion of justice, that is, to get what you deserve. Moral agents who, through decisions subject to possible disci­ pline by a rational, autonomous will, forsake performing their perfect duties forfeit their rights to be treated with the dignity the categorical imperative mandates. Hence, a thief, in violating an absolute moral law, loses his right to similar treatment under that law, and may be incarcer­ ated. This perspective supports the common-sense notion that we punish people precisely for injustices they com­ mitted in the past, and not just to deter the behavior in the future. There is genuine accountability here. Criticisms of Kant

Kant’s deontology is not without its opponents. Here are some of the criticisms commonly raised. 1. One criticism of Kant’s ethics is that he ultimately assumed the freedom of the will without proof. Given our observations about the human condition, it is viewed by many as more tenable to postulate determinism over free­ dom, regardless of what that does to human morality. In Kant’s case, he seems to make a pragmatic decision that moral responsibility is so important that this justifies the assumption of human freedom. 2. Many reject Kant’s contention that genuine moral worth is grounded in a purely rational activity of the will married to an impersonally calculable logical consistency. Kant does not try to hide this. And yet his view of intentionality, though rigorous, fails to capture much of what we admire as moral motivation, such as the admira­ tion of maternal instinct judiciously applied. 3. Another criticism of Kant concerns the issue of maxims. When humans act, Kant says that we act accord­ ing to subjective principles of action called maxims. What

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he never does is argue for a consistent way to form these maxims prior to assessment via the three tests for catego­ rical imperatives. Once again, honesty serves as a good case in point. Suppose I am unemployed and tempted to steal to feed my family. If I phrase the maxim generally, ‘‘It is OK to steal,’’ I am breaking a categorical moral law by the three tests. But Kant does not really specify that I cannot phrase the maxim anyway I wish, such as ‘‘I may steal to feed my starving family when I know I will not get caught, and when I can reasonably assume that others in the same position are not doing the same.’’ Universalize this maxim, and there is no apparent practical contra­ diction. Here we seem to have a case where a maxim fails the first test but passes the second and third ones. 4. Kant insists that moral situations never, if thought out carefully, cash out as genuine dilemmas over conflict­ ing categorical imperatives. Otherwise, the status of absolute moral rules as a class would be in jeopardy. During World War II, Dutch fishermen hid Jewish fugi­ tives in their boats and ferried them to safety over in England. Often, SS patrol boats and submarines would stop these fishing boats. When Nazi captains asked the fishermen if there were Jews on board, what were the fishermen to do? If the maxims ‘‘It is wrong to lie’’ and ‘‘Permitting the murder of innocent people is wrong’’ are both viewed as categorical imperatives, as I think they must be, then we have a genuine categorical dilemma. In these cases, most Dutch captains viewed it as permissible to sacrifice absolute honesty to save innocent lives. Kant has trouble with these types of scenarios. W. D. Ross’s Twentieth-Century Deontology The persistence of problematic dilemmas for Kantian deontological thinkers is, in many respects, accounted for by the amendments made to deontological thought in the twentieth century by W. D. Ross. Consequentialist thought dominated ethical debate in the nineteenth and early twentieth centuries until Ross rearoused philoso­ phical interest in the notion of duty. An influential gadfly that prompted Ross in this area was an article by H. A. Prichard entitled ‘‘Does Moral Philosophy Rest on a Mistake?’’ ‘Plain man’ intuition

Prichard argues that this ‘mistake’ of moral thought is to base our ethical obligations on the good to be achieved as compared to alternative courses of action. As a matter of fact, Prichard argues, we do not appreciate an obligation because of arguments that support it, but merely by a sense of direct awareness of the importance of the obliga­ tion. This analysis, directed at the consequentialists, also criticizes the rational, calculative methodology of Kant. Prichard grounds obligation in human intuition, and this intuition often contradicts reasoning about results, and

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also rejects dry recourse to rational speculation based on the principle of contradiction. Ross accepts Prichard’s argument for intuition and uses it to ground his deontological morality in the prin­ ciple of prima facie duty. According to Ross, the terms ‘right’ and ‘good’ are distinct, irreducible, indefinable objective qualities, consistent with G. E. Moore’s position. An act is either right or wrong, but it is motives that are good or bad. On this account, there are four possible conclusions in assessing the moral quality of an agent’s response in a situation. Ultimately, and this is where Ross is most easily subject to criticism, a person by intuition ‘knows’ which course of action is right and which motive connotes a ‘good’ one. But because right and good are indefinable, there is no need to analyze further, as the consequentialists do in making good an instrumental quality. How does Ross’s view work in practice? Well, he argues that the ‘Plain Man’ understands his duty in a situation according to Prichard’s notion of immediate awareness. So, if a murderer stops at my front door and asks, ‘‘Is your child here? I’m going to kill him,’’ the Plain Man knows intuitively that this situation justifies a lie to save life. This is how Ross tries to overcome exceptional cases that plague the Kantian scheme. The aforemen­ tioned Dutch fishermen example is another case in point. The Plain Man or Average Joe will just ‘know’ that his duty to be truthful may be suspended for a more stringent duty, in this case to save Jews from concentra­ tion camps. Ross addresses an obvious concern closet critics should have about the nature of intuition. Obviously, many peo­ ple intuit very badly, and they often rationalize things they want into morally acceptable decisions. Ross’s answer to this is to point out that the intuition he has in mind is developmental. Hence, education and practical training are vital to molding the intuitive faculty into one that makes good moral decisions. Is this still what we would call intuition? Well, in a way, yes. Here is an example that illustrates how it should work. As a adoles­ cent, many children go through a period where they do not respect their parents (although they are good parents by all normal standards); they think their parents owe them more than they receive, or they surmise that their parents are overly conservative and have habits that are distinctly passe´. But if the parents are patient, they remain hopeful that the children will ‘grow up’ and eventually ‘understand’ why they are like they are. In the mind of the maturing adolescent, and this comes at different times for different children, it will just ‘dawn’ on the child that his parents are not as unfair, dumb, or passe´ as he thought. He will just ‘see’ it, usually as a response to understanding the good reasons behind the parent’s actions through encoun­ tering adult situations himself, such as having children of his own or working out a personal budget. In this case,

Ross would say the intuition of the maturing person has positively developed. Upon ‘understanding’ the reasons behind the parents’ actions, the adolescent might recog­ nize a prima facie duty of gratitude to his parents, perhaps even a duty of reparation for past injuries inflicted out of ignorance. Although it is true that as humans, we use reason to make moral deliberations, the point of under­ standing is intuitive in Ross’s sense. Remember how you have worked and worked to figure out a difficult math problem, only to have the whole solution just ‘dawn’ on you. This is what Ross means by intuition. Prima facie duty

Prima facie duty (duty on the face of it) refers to a duty one must perform, unless it conflicts with a more impor­ tant duty intuitively recognized. In a situation where two or more prima facie duties conflict, the one my Plain Man intuition tells me I must perform is what Ross calls the ‘actual duty.’ In the absence of a conflict of duties in a moral situation, any prima facie duty is the agent’s actual duty. Thus, in the case of the Dutch fishermen, the duty to be truthful is the actual duty in cases where no other exceptional circumstance warrants overriding it for a more important obligation, such as saving innocent life. Ross argues that there are seven prima facie duty types, and each is an obligatory actual duty unless there is a conflict with a greater prima facie duty. This list is the duty types Ross observes, though he is humble enough to say that this list could be incomplete. The seven prima facie duties are as follows: 1. 2. 3. 4. 5. 6. 7.

Fidelity: Duty to keep promises and commitments Reparation: Duty to correct past wrongs Nonmaleficence: Duty to prevent harm Beneficence: Duty to increase general pleasure Justice: Duty to prevent unfair distribution of benefits Gratitude: Duty to repay kindness Self-improvement: Duty to better oneself

In this list, Ross admitted the complexity of the moral domain in human affairs. Another example will help demonstrate how he cashes these duties out in practice. Suppose a nurse makes an appointment to give a lecture on Friday at 6 p.m. at a gathering of oncology nurses for the Nurses’ Association. En route to the engagement, she witnesses an automobile collision with life-threatening injuries. If she stops and renders assistance, she will miss her engagement, but if she makes her appointment, some­ one will likely die. Ross would say this nurse has a conflict between the duties of fidelity and nonmaleficence. Irrespective of consequences (making the engagement might create more general utility), the nurse will know intuitively that in this case the duty of nonmaleficence overrides the duty of fidelity. She has an actual duty to stop and render assistance. However, after the assistance is complete, her failure to fulfill her prima facie duty of

Consequentialism and Deontology

fidelity obligates her to a duty of reparation, that is, to call and explain the situation to the Nurse’s Association and probably offer to speak again at a later date. Likewise, the Nurse’s Association should recognize a prima facie duty of gratitude for the call and demonstrate an understanding of her predicament as a duty of beneficence. This intui­ tive weighing of our various duties, Ross, argues, is in fact how we work out our morality in practice. Though it has its weaknesses, it does offer a practical explanation for the moral complexity humans encounter day to day. Criticisms of Ross

The main criticisms of Ross are as follows: 1. An intuitive method for moral decision making is unreliable and often inconsistent. 2. Much of his notion of prima facie duty is left unde­ fined, that is, the Plain Man must figure out on his own which of the seven duties apply and which one over­ rides which. Regarding the first criticism, Ross argues that by intuition, he means self-evident in the sense in which mathematical axioms are self-evident to those familiar with them. Also, if the system of prima facie duties seems unsystematic, that is because that is how we, in fact, reason about moral issues. In this sense it is descriptive. Ross argues that though his deontology is apparently less systematized than consequen­ tialist positions, they are in reality no less precise in practice. In practice, the principle of utility is at least if not more

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difficult to cash out in actual decision situations and is based on a principle that is not how humans really think about moral issues. Besides, Ross does have a governing principle of action implicit in his deontology. An act is morally right (i.e., an actual duty) if and only if it is a prima facie duty, and no other conflicting act represents a more stringent duty. See also: Acts and Omissions; Egoism and Altruism; Kantianism; Utilitarianism.

Further Reading Abraham E, Flower E, and O’Connor F (eds.) (1989) Morality, Philosophy, and Practice: Historical and Contemporary Studies. New York: Random House. Aristotle (1925) In: Ross WD (trans.) Nicomachean Ethics. London: Oxford University Press. Bentham J and Harrison W (eds.) (1948) Introduction on the Principles of Morals and Legislation. London: Oxford University Press. Brennan JG (1973) Ethics and Morals. New York: Harper and Row. Hudlin CW (ed.) (1949) Moral Traditions in Moral Philosophy. Dubuque, IA: Kendall/Hunt. Kant I (1948) In: Paton HJ (trans. and ed.) Groundwork of the Metaphysics of Morals. London: Hutcheson & Co, Ltd. Mill JS (1947) In: Castell A (ed.) On Liberty. Arlington Heights, IL: AHM Publishing Co. Mill JS (1979) In: Sher G (ed.) Utilitarianism. Hacket Publishing. Rachels J (1993) The Elements of Moral Philosophy, 2nd edn. New York: McGraw-Hill Inc. Ross WD (1930) The Right and the Good. Oxford: Oxford University Press. Solomon RC (1984) Ethics: A Brief Introduction. New York: McGrawHill.

Consumer Rights V di Norcia, Barrie, ON, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Advertising A form of commercial rhetoric designed to favorably influence consumer perceptions of market goods; improve the seller’s image, its brands, and its products; and engender sales. Caveat emptor Buyer beware. It means that consumers should be on their guard and research products to assure themselves that the product is as good as it is claimed to be by the seller. Commodification Treating social practices and values as market commodities; at the extreme, treating human beings as commodities or slaves. Competitive markets Markets in which sellers compete to offer goods to potential buyers. Consumer right A claim to have one’s interests as a buyer in a market exchange respected by sellers and others. Consumer rights The rights to value for money; to choose the goods they want from those on offer in

Introduction Consumers are people who buy goods from businesses selling them. A consumer right is a claim to have one’s interests as a buyer in a market exchange respected by sellers and others. A right is a justified claim that others respect one’s interests, needs, and wants. This article discusses several fundamental consumer rights: to value for money, to safe products, to free choice in competitive markets, to informed choice in open markets, and to supportive government regulations. However, first one needs to distinguish today’s mass markets from neoclassi­ cal free market theory.

Mass Markets Neoclassical economics assumes that sellers compete in offering goods for buyers and prices for goods that are solely a function of supply and demand in free, selfregulating markets. The seller’s maxim is to produce cheap and sell dear, whereas the main consumer’s rule is caveat emptor or buyer beware. The social, health, and environmental impacts of markets are not regulated by markets but external to them. Economic agents are assumed to be independent rational economic agents

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the marketplace; to clear, accurate information about the price and quality of goods on offer; and to government regulations that protect their rights and ensure that markets are open, competitive, fair, and safe. Consumers People who buy goods from businesses selling them. Free markets Markets that price goods solely in relation to their supply and consumer demand and externalize all the social and environmental costs of market activities. Open markets Markets that efficiently make available commercial information to buyers and sellers. Right A justified claim that others respect one’s interests, needs, and wants. Value for money Market prices should reflect the value of goods to consumers and be competitive relative to similar goods on offer in the same market.

who maximize their self-interest. Their market choices are not only free but also rational because they are based on perfect information. The neoclassical economist postulates that self-interest serves the public interest, but Dan Ariely comments in his book, Predictably Irrational, that this postulate reflects their ‘‘deep belief that the invisible hand and the wisdom of the markets guarantee optimal behavior [and returns] under all conditions.’’ In reality, however, mass markets are large, complex, and far from perfect. Billions of consumers buy goods in mass markets from millions of seller firms in nations throughout the world. The stores in which consumers shop for goods are but the tip of the regional and inter­ national economic networks. Firms such as IBM, Microsoft, Royal Dutch Shell, Ford, and Deutsche Bank are huge multinational corporations, with thousands of employees in many divisions, offering numerous products in different nations. Many businesses moreover are them­ selves consumers. There are buyer/seller market relationships between firms and their distributors, finan­ ciers, investors, suppliers, retailers, advertising agencies, and legal, accounting, and technical advisers. No one is perfectly free, no one has perfect information, and many of the social health, safety, and environmental costs of markets are business costs that are included in the prices of goods. Rather, in such markets, uncertainty, risks,

Consumer Rights

pressures, and constraints on buyers and government regulations are the rule. It is in these complex mass markets that notions of consumer rights have arisen.

A Right to Value for Money Consumers have a right to value for money, namely that prices should reflect the value of goods on sale to con­ sumers and be competitive relative to similar goods on offer in the same market. Value for money applies to both buyers and sellers. Consumers have the right to bargain with sellers for the best price for goods on offer or for better values for the same price. Price and usefulness are the key indicators of the market value of goods on offer. In a competitive market, prices vary with market supply, consumer demand, and consumer perceptions of their usefulness. Value for money means satisfied consumers, who become loyal customers. Customer loyalty makes for successful businesses. Just as prices vary with market forces, so do value perceptions of buyers and sellers. It is the value of the whole market package that counts. ‘‘What the customer thinks he is buying,’’ Peter Drucker com­ mented in The Practice of Management, ‘‘and what he considers ‘value’ is decisive – it determines what a busi­ ness is, what it produces and whether it will prosper.’’ Quality and service can be as important to consumers as price. Differing buyers’ and sellers’ perceptions of value sug­ gest a tension between buyers and sellers. Where prices are too low for the quality of the goods on offer, consu­ mers may be satisfied but sellers cannot make a profit. Where prices are too high and quality or service too poor, consumers are not satisfied. In the first case, there are two key problems: Either consumers maximize their interest in a low price or sellers exaggerate the quality or service level. In the second, seller profit maximizing clashes with customer demands for low-priced, high-value goods. Products and services are termed goods for a reason. Value for money implies goods are safe to use – that consumers can assume that the ordinary, responsible use of products as intended by the seller does not impose unacceptable health or safety risks on them. Thus, cars, stoves, complex appliances, computers, and complex goods such as machines should be safe in normal opera­ tion. In addition, high-risk goods give companies a bad name and discourage trade. However, firms are not responsible for the consumer’s abuse or misuse of pro­ ducts. Automakers are not responsible for speeders, nor are computer manufacturers responsible for criminal hackers. Sellers in turn have as much right to benefit from market exchanges as do buyers. Indeed, they have the correlative right to set a market price for their goods, one that will allow them to meet their costs. Consumers

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also have an obligation to deal fairly with sellers. They do not have the right to prices so low that the seller loses money, cannot meet his or her costs, or faces bankruptcy. Thus, market exchanges should benefit both consumers and sellers, not harm them. In fact, many retailers com­ bine regular prices with low price sales for select goods, whereas some firms, such as Walmart, adopt an everyday low price strategy. There are also discount houses in which sales are the norm. Also, in countless small, infor­ mal local markets, consumers haggle with sellers for bargains. These are all examples of commodity markets in which sellers compete for buyers or consumers mainly on the price, usefulness, or value of the goods on offer rather than on vague preferences, meaningful brands, catchy slogans, or creative logos. Where critically unsafe goods have ended up in the markets, despite a seller’s best intentions, the seller should immediately withdraw them from sales outlets and warn consumers of the risks. This is what Johnson & Johnson did when several bottles of Tylenol in a drugstore were found to contain poison. Similarly, Procter & Gamble responded to reports of health risks with its new superabsorbent Rely tampon by immediately withdrawing it from the market and advertised widely to warn women of the risks. However, some products are inherently danger­ ous. For example, smoking causes lung cancer. Thus, there are health warnings on cigarette packages. Since the early 1970s, moreover, cigarette advertising has been banned from North American radio and TV and most magazines, and smoking is banned or restricted in many restaurants, workplaces, and public buildings. Sometimes, deceptive consumer financing is offered, especially for major purchases and capital goods such as cars, residences, buildings, and furniture. Many U.S. subprime mortgage lenders, for example, hid the usur­ iously high interest rates they charged borrowers, with payment schedules beyond borrowers’ means. Non-bank financial service firms offered low-income consumers without bank accounts services such as check cashing, tax rebates, and other remittances but charged them exorbitant fees and usurious loan interest rates ranging from 30 to 1000% a year. Unscrupulous debt collection agencies aggressively garnished the wages and attached the assets of low-income consumers, regardless of their ability to pay. Value for money includes the consumer’s rights to reasonable financial services. Interest rates should not be usurious. When credit card and loan rates exceed 20% per year for the unpaid balance, consumers have justified concerns about usury. Lenders also have a right to a reasonable return on monies lent. Muhammad Yunus, for example, created the Grameen Bank to lend Bangladeshi women small amounts of money so that they could develop their own businesses. He charged nonusurious but competitive market interest rates. More

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than 95% of the Grameen Bank’s customers pay back their loans, making it and its microfinance imitators throughout the world profitable businesses. A degree of tolerance is inherent in market exchanges, inasmuch as sellers are usually happy to sell to customers regardless of gender, ethnicity, race, or religion. Similarly, consumers have a right to products appropriate to gender, religion, culture, etc. Sometimes, such agencies impose discriminatory credit terms based on the client’s gender, race, or ethnicity rather than on his or her financial status. Such racism was a real problem for black consumers in the United States in the South and in South Africa prior to the civil rights movement in both countries. Also, the female beauty myth has led many companies to associate fashion with overpriced, uncomfortable, and inappropriate clothes. For example, women need competitively priced clothes that are comfortable as well as fashionable but often cannot find them. Many sellers have ethics codes that include respect for consumer rights. However, consumers often notice a gap between the good intentions such codes espouse and the seller’s actual business practices. Sellers, such as Enron, that do not live up to the ethical values espoused in their codes not only disappoint consumer expectations and open up opportunities for competitors but also risk cata­ strophic losses. In addition, consumers have a right to buy goods that reflect their social values. Thus, many consu­ mers are concerned about the labor practices of firms, such as the low wages paid by many discount houses and fast-food franchises. Firms such as Starbucks and the Body Shop, for example, support fair trade suppliers. Commodification refers to treating social practices and values as market commodities and, at the extreme, treat­ ing human beings as commodities, a practice that verges on slavery. So defined, commodification involves the excessive or inappropriate commercialization of social and human goods. Some believe that commercialization is an inherent property of mass markets – that we live in a consumer society dominated by markets and obsessed with shopping, selling, and trade. To the extent that many consumers are shopaholics, utterly addicted to shopping, there is point to the worry that mass markets may involve a morally unacceptable degree of commer­ cialization of human wants, desires, and choices that verges on commodification of human and social values. Sellers do not have the right to create shopaholics or treat humans as commercial goods. Notwithstanding such con­ cerns, commercial values are widely accepted in mass markets, and they are not in themselves harmful or a violation of consumer rights. Commodification rather refers to pervasive, excessive commercialization to such an extent that market values override social values and human concerns and problems are interpreted primarily in commercial terms. Commodification arises partly because markets in themselves set no limits on consumer

wants, economic growth, possessions, or affluence. On the contrary, commodification reinforces insatiable consump­ tion in which the consumer’s individual identity is confounded with or reflected in the goods he or she buys and possesses. However, at its extreme, humans are treated merely as commodities, as purely economic or commercial beings, whether as workers or consumers. To the extent that firms impose unfair, abusive, unsafe, extremely low-wage conditions on workers that verge on slavery, they violate the human rights of their employees. Certainly, consumers have no right to purchase products whose manufacture involves the exploitation of workers. Such practices instead are morally offensive.

The Right to Free Choice in Competitive Markets Consumers do have the right to choose the goods they want from those on offer in the marketplace. However, for consumers to be free in their choices, markets must be competitive. They must be open to sellers who wish to make their goods available to consumers. Modern mass markets are relatively competitive in this sense. There are countless buyers, sellers, and a great variety of goods. Where goods are not satisfactory, consumers should have the right to immediately return them, undamaged, or have them replaced by equivalent goods. Sometimes, a small service charge is imposed, especially when sellers have to prepare goods for sale. In fact, satisfactory goods or money refunded is a commonly accepted maxim in the mass market retail business. Consumers should have the choice to return unsatisfactory goods and get their money back. Consumers should also enjoy the right not to buy goods they do not want, need, or that they deem unsafe or overpriced. They should also have the option to refuse direct marketing promotions, unsolicited mailings, and sales pitches, namely by asking to be delisted from mar­ keting campaigns. Consumers also have the right to criticize and boycott goods and firms with whose values they disagree. Such boycotts have in fact arisen due to consumer concerns about sellers’ unfair labor practices or poor environmental record. Some boycotts have been commercially effective in, for example, making toys safer for children or improv­ ing firms’ labor and environmental practices in developing nations. The constant, often invasive, high-pressure marketing practices common in mass markets raise concerns about undermining consumers’ ability to freely choose the goods they need or really want. In The New Industrial State, John Kenneth Galbraith famously argued that instead of consumer sovereignty or the consumer’s ability to freely choose from goods on offer in competitive mar­ kets, ‘‘the producing firm reaches forward and controls its

Consumer Rights

markets and on beyond to manage market behavior and shape the social attitudes’’ of the consumers. Pervasive mass marketing techniques and powerful corporate oligo­ polies reduce consumer freedom of choice and decisionmaking powers. On the other hand, modern consumers are familiar with the constant stream of ads they face everyday, and they are increasingly skeptical. They switch sellers, disregard ads, fast forward TV commer­ cials, and shop for bargains. This suggests that modern consumers have some success in wading through the dense clutter of mass market advertising and promotions and manage to make relatively informed and intelligent choices.

A Right to Information in Open Markets Market choices must be informed as well as free. Consumers have the right to clear, accurate information about the price and quality of goods on offer and to other information material to their use and purchase. This includes a right to clear, written bills of sale, records of purchases, and, where appropriate, sales or service con­ tracts. They should receive the services offered by the seller for the price and under the sale, timing, and service provision conditions stated in the sales contract. A seller’s marketing and advertising claims for their goods should be clear and accurate. Firms should not misrepresent products, services, or prices, even while stressing their benefits. In sum, consumers have a right to clarity of offer from sellers. Salespersons should explain product functions, capabilities, additional operating costs, sales contracts, and financing terms to customers. The terms and costs of any loans offered to finance purchases should be fully and clearly disclosed by sellers or associated financing firms. This consumer right implies that such information is openly communicated in the marketplace and is freely made available to consumers. The consumer’s right to freely available commercial information in open markets is not, however, a right to perfect information or certainty, as implied by the neo­ classical economics requirement for perfect knowledge. An unending barrage of commercial information, adver­ tising, and marketing campaigns is directed at consumers. Not all of it is helpful, reliable, accurate, or relevant to their needs or choices at the moment. Hardly any com­ mercial actors, whether buyers or sellers, know all or even most of what the others are doing or the current prices of all the goods in all mass markets. Limited information and uncertainty are the norm in mass markets, both for buyers and for sellers. It is therefore not always possible to fore­ see all the possible impacts or misuses of a product, nor even all its uses. Good information is not always available when needed. This can make informed consumer choice difficult. Consumers need to continually reinterpret their

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needs in relation to the bewildering array of countless goods and services on offer in the mass market. Thus, consumers have good reason to question the neoclassical view that perfect or full information about goods on offer is instantaneously and costlessly available in the mass marketplace. Indeed, the very idea that com­ municating information is free or costless – and easily available where, when, and as needed – is naı¨ve and empirically false. The market reality is quite different. Finding clear, reliable information relevant to a commer­ cial decision can take a great deal of effort. Consumers often have to invest time and money to get the informa­ tion they need to make an intelligent purchase decision. Indeed, the control of commercial information is an important strategic advantage for sellers in today’s com­ petitive mass market. One cannot make a truly free choice in mass markets without obtaining information relevant to that choice because without adequate information, one cannot determine what his or her actual options are or decide which of the goods on offer best meets his or her needs. Consumers therefore must be informed and intel­ ligent, and often literate, as well as free. Most likely are, especially with regard to knowledge of the goods on offer and the sellers in their own local marketplace. ‘‘The con­ sumer isn’t a moron,’’ David Ogilvy famously said in Confessions of an Advertising Man, ‘‘she’s your wife. What the customer thinks he is buying and what he considers ‘value’ is decisive – it determines what a business is, what it produces, and whether it will prosper.’’ Prior to purchase, consumers also need to be informed of significant product risks. Sellers should provide them with easily understood information about product mate­ rials, uses, and risks. This is especially true for complex technical products such as computers, medicines, and vehicles. There should be warnings about any economic, health, safety, or environmental risks of a product or service. Such information should be clearly stated in writing and printed in legible fonts. Some products, such as knives and guns, are inherently dangerous in ordinary use. Dangerous products should not be promoted in a misleadingly attractive manner. Risks should be commu­ nicated, not downplayed. In the case of high-risk products such as tobacco, advertising has been prohibited in many places. Of course, consumers should not believe everything they read. In fact, they are increasingly concerned about inaccuracies in the credit files and reports on their beha­ vior and even their private lives that are distributed by mass market credit report agencies. Credit agency files on consumers often include stale and erroneous information, even after consumer complaints and demands to correct them. Such reports can and, in fact, have misled sellers and banks about consumer credit worthiness. The result is to prevent consumers from obtaining the financing they need, especially for major purchases, or from being

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offered good interest rates and payment terms. Affected consumers find themselves unable to resolve disputes with sellers or lenders over payment terms and loan rates. They may even be fined and their wages garnished, their goods attached, and their mortgages foreclosed. Caveat emptor especially applies to Internet com­ merce because it is not a reliable source of commercial information. Consumers should use the Internet critically and intelligently. As in any other market place, one should ask why sellers say what they say, and one should demand evidence to back up seller claims for the goods they offer, check out competing offers, and seek out information from independent sources. It is especially important in Internet commerce that consumers receive full and clear information on the price, quality, and value of the goods on offer, including all handling, delivery, and financing costs. Internet sellers should state on their websites how one can return unsatisfactory goods. Finally, Internet commerce raises questions about privacy rights – the possi­ bility that others can track your purchases and private financial and commercial and personal information – and also identity theft. On the other hand, the Internet is a good place for consumers to search for information on many products. In summary, the Internet marketplace is as com­ mercial as it is informative.

A Right to Fair, Accurate Advertising Consumers have a right to fair, accurate advertising. Advertising is a legitimate form of commercial commu­ nications. Its main aims are to favorably influence consumer perceptions of the goods on offer, improve the image of the firm and its brands and products, and engen­ der sales. Ads are also used to locate prospects, reinforce brand loyalty, stimulate demand, and get the consumer’s attention. They represent a business cost – a tool busi­ nesses use to maintain or improve their sales, revenues, and, ultimately, their profitability. They do not directly yield sales or revenue. Advertising is a form of commercial rhetoric – sales rhetoric, to be precise, which is designed to persuade people to view the firm’s message and its products favor­ ably. Selling has always involved the arts of commercial design and persuasive rhetoric. Rhetoric is as old as humanity and is a normal, expected element in advertis­ ing. It is, after all, both natural and intelligent to put one’s best image forward. Thus, commercial rhetoric is as respectable as political and legal rhetoric. Also, as com­ mercial rhetoric, ads need to communicate effectively. A seller’s commercial success in mass markets depends to some degree on the effectiveness of its advertising. In eliciting a favorable reaction from consumers, it must persuade them that its products, brands, and indeed the firm are worth the consumers’ attention, time, and money.

Persuading others to choose your products, or to agree with your views, is legitimate as long as you have a good case and you present it honestly and fairly. Therefore, the information presented in an ad must be accurate and fair. Good ads should contain significant material information about the products or services on offer, depending on the genre and media used. Advertising should be accurate and clear, and it should not disguise price or product informa­ tion. Advertisements should not be knowingly erroneous, contain inaccurate and misleading information, be inten­ tionally deceptive, or use subliminal persuasion techniques. In fact, much advertising is informative. Mail order, classifieds, catalog retail flyers, and sales advertising, for example, contain accurate price and goods information. In such cases, what ads communicate may be as important as how it is communicated. Straightforward, no-frills ads that stress product value work best in such markets. Advertising for technical goods or useful practical pro­ ducts also stresses instrumental, practical points rather than hype or image. Scientific communications, however, involve plain and clear style, media, editing, and design values, in contrast to advertising and commercial com­ munications. Technical information about commercially available complex systems or equally complex business or legal arrangements is usually directed at industrial or business or technical consumers. In such contexts, the rationalistic idea that selling involves only hard informa­ tion and plainly stated data makes sense. Media and context matter, however. You cannot send people the Bible in an e-mail or via Twitter. Ordinary mass market consumers should not therefore expect mass media adver­ tising to communicate complete or technical information about the goods they promote. Consumers should not assume, however, that commer­ cial information can be presented artlessly, without attention to the design of the message, the medium, or the information environment in which occurs. They need to be critical and stay vigilant and ever sensitive to adver­ tising and marketing tricks. A degree of exaggeration or puffery, of course, is common in marketing and advertis­ ing. Puffery usually involves vague general claims, such as ‘‘the right car for the right person.’’ Consumers generally understand that such claims are not meant to be taken literally. Advertising, warns David Ogilvy, should not insult the customer’s intelligence: You insult [the customer’s] intelligence if you assume that a mere slogan and a few vapid adjectives will per­ suade her to buy anything. She wants all the information you can give her. . . . Good products can be sold by honest advertising. If you don’t think the product is good, you have no business to be advertising it.

Indeed, consumers do have the right to expect fair and accurate information in the ads, however incomplete and

Consumer Rights

selective that information may be. Advertising that is deliberately deceptive, distorts product information, or misleads consumers crosses the line of both moral and market acceptability. Misleading sales ads are a common concern. Ads offering 40% off regular prices are decep­ tively misleading if the regular price is inflated or never demanded. Nor should sellers place a few low loss leader goods on sale to attract consumers into stores and then attempt to sell higher priced goods once the few lowpriced sale goods are gone. Stores also should not have seemingly endless liquidation sales. Endorsements should come from the people who actually use the products, and product or service limitations should be disclosed. However, the barrage of commercial information and advertising in mass markets is intense and unending. Commercial and advertising messages are so numerous that many speak of a highly cluttered information envir­ onment. Good ads therefore should involve what advertising experts term ‘clarity of offer.’ For this reason, a key aim of many mass market advertising campaigns is to develop a unique selling proposition that penetrates the chaotic barrage of information on the mass media and gets the consumer’s attention. For example, many advertising campaigns are designed merely to break through the cluttered information environment and draw the consu­ mer’s attention to the client’s product or service or differentiate it from the competition. Much mass market advertising is used merely to get the seller firm or the brand noticed and, it is hoped, to also sell the goods on offer. In such campaigns, sales of the seller’s goods are a secondary but always welcome by-product. To cut through the intense clutter of today’s mass markets often requires advertisers to use all the techni­ ques at their disposal. Effective persuasion and communication involves a variety of rhetorical skills – in editing, media, quality design and style, and effective communication. In addition, message design, style, and rhetoric change with the times, cultures, locations, pro­ ducts, target audiences, and media. Good design attracts the attention of the consumer and supports the clarity of the offer or sales pitch, without being dishonest. It gives great weight to stylistic and design values, to drawing the attention of the viewer to positive aspects of the goods being advertised, as well as to accurate product informa­ tion. Advertisers select appropriate content for the message, design the style of the message to fit the media in which it is communicated and to attract the consumer’s attention, and tailor ads to the target audience. The rela­ tive weight of design, style, and other values to the information content of an ad varies with the purpose of the message, the communications medium used, the goals of the sender, and the target audience. Advertising is so extensive in mass markets that com­ mercial brands, logos, images, and symbols pervade not only the marketplace but also social life and culture.

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They reinforce the consumer’s desire to shop for unne­ cessary products, and they can also distort social and lifestyle values. ‘‘Effective advertising,’’ Marshall McLuhan claims in The Mechanical Bride, ‘‘succeeds in part by distracting the attention of the reader from its presuppositions and by its quiet fusion with other social values and psychological affects and associations.’’ Thus, many ads tacitly associate the goods they promote with attractive, sexual, and upscale high-status social connota­ tions. Indeed, the main role of the unending mass market advertising and marketing campaigns is, as critic Naomi Klein says, to build a powerful image around a brand with multiple positive psychological associations. Promoting the brand also indirectly reinforces positive consumer feelings about the seller firms, which in mass markets usually are large multinational corporations. Thus, brands such as Nike, Benetton, Calvin Klein, Disney, Starbucks, Barbie, the Body Shop, Coca-Cola, and the Marlboro Man are loaded with soft, richly ambiguous meanings, values, and unspoken emotional associations. Lifestyle marketing associates brands and corporate and commer­ cial values with cultural values. This, in turn, replaces hard data and an economically rational focus on price and quality, or good value for money. Although advertisers do not want to offend consu­ mers, some ads do raise questions of bad taste and dubious values. What is acceptable in Hustler or Cosmopolitan may not be appropriate in a children’s magazine or on prime-time TV. Moreover, advertising should not offend human rights. Ads should avoid gender and cultural stereotyping. However, some adver­ tising uses dubious gender and racial images to promote goods. The female gender stereotype in many cosmetic ads, and media offerings, reflects the sexist beauty myth of young, attractive, powerless women, contrasted with strong powerful men. Social attitudes regarding nudity, for example, vary greatly. For example, many people found the sexually suggestive poses of adolescent youths in ads for Calvin Klein jeans and perfumes offensive. Calvin Klein himself said he did not see the ads as pornographic. In fact, sales of Klein’s jeans doubled after the ads. Furthermore, advertising directly to young, impressionable children is a morally sensitive area, as is selling them harmful products such as unsafe toys and tobacco. No matter how aggressive, competi­ tive, and tasteless some ads may be, few commercial ads come close to the harsh negative tone of much partisan political advertising, which can often involve fraudulent, ad hominem personal attacks and sometimes even McCarthyite smears labeling political opponents extremists. If a business advertised its products by using the same exaggerated, deceptive, and offensive claims as found in political ads, or failed to deliver on its solemn promises, it would not only lose consumer support but also be hauled into court. The seller firm

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and the ad agency executives would be fined or led to jail in handcuffs. Given the size, scale, and diversity of the modern marketplace, most businesses need the help of marketing and advertising agencies to communicate effectively with consumers. Most commercial ads are the product of the creative work of an advertising agency for a business client. An advertising campaign usually involves a com­ mercial market and a seller/buyer relationship between the advertising agency and its business client. The client is the agency’s customer. Clients range from business and governments to charity and interest groups. They are the buyers for the advertising and marketing goods that agen­ cies sell. Full-service agencies, such as Saatchi & Saatchi and Ogilvy & Mather, provide a wide range of services to their clients: market research, marketing campaigns, design, public relations, media consultation, and advertis­ ing. Many agencies specialize in specific services, product lines, media, or markets. In the United Kingdom, agencies are independent entities that control marketing and advertising campaigns, whereas in North America the relationship is contractual and clients have more say over advertising. Designing effective advertising in mass markets involves wide-ranging expertise in marketing research, commercial rhetoric, creative ad design, effec­ tive communications, and use of different media. These are the technical tools of mass market advertising. Learning to use these tools well is usually beyond the capabilities of most firms. That is why businesses need advertising agencies to help market, advertise, and sell their products to consumers. Advertising is a highly competitive world in which agencies compete with each other for clients. Agency/ client relations have their problems. The ad agency has to satisfy its business consumers, and clients need to respect the agency’s competence. Some clients think they are marketing geniuses and nitpick each detail of an ad cam­ paign. Others unrealistically pressure agencies to produce instant results and are so demanding that they can under­ cut the work even of a good agency. On the other hand, some creative people in agencies can be arrogant about their own expertise and neglect developing an effective campaign for the client. Agencies cannot afford to let a client pressure them into a bad campaign because it can damage their reputation and affect their business. Good ads can be used to promote social values. Social issue campaigns have in fact spawned some creative ads, from Saatchi & Saatchi’s famous pregnant man ad in support of birth control to the Harvard School of Public Health’s ‘squash it’ campaign to persuade youth to walk away from fights and violence. Benetton is especially noted for using controversial social advertising to market its clothing. Its ads have shown Nazis and Black Power advocates saluting during the Olympic medal award cere­ mony, a nun and priest kissing, an AIDS victim dying

with his family present, and a white angelic girl kissing a black boy with devil’s horns. However, social values are more a political field, the province of politics and governments.

A Right to Government Regulations Consumers have citizens’ rights to government support to protect their rights and to ensure that markets are open, competitive, fair, and safe. The idea of a consumer’s right itself requires one to ask how such a right can be realized in practice. Actual notions of consumer rights do, how­ ever, vary with national cultures and political systems. For example, Anglo-Americans tend to frame social ques­ tions in terms of individual rights, reflecting dominant free market views in their nations. In contrast, consumer group action and extensive government regulation are more legitimate in European and other nations. In fact, consumers cannot rely on businesses to regulate their own practices and markets. History has shown that regardless of good intentions, voluntary self-regulation does not work. Indeed, the market power of large multinational corporations has led critics such as John Kenneth Galbraith to claim that governments do not so much protect the individual consumer’s right to buy but ‘‘the seller’s right to manage the individual.’’ Nor have inter­ national organizations such as the International Labour Organization or United Nations been able to effectively impose international standards ensuring fair, open, com­ petitive, or even safe markets. Only governments can be relied on to effectively pro­ tect consumer rights by passing laws and regulations that require businesses to follow good business practices and by creating public agencies to regulate mass markets and ensure they are open and competitive and consumer goods are safe to use. Modern states in fact have devel­ oped numerous laws and regulations to minimize the health, safety, and environmental risks of goods; ensure open, competitive markets, product safety, food quality, and fair contracts; protect consumer privacy; ensure fair wages and conditions for workers; sanction predatory pricing and fraud; ensure openness in finance; protect intellectual property; and negotiate fair tariff and nontar­ iff rules in international trade. Consumers also need equitable, low-cost access to impartial government tribunals or agencies to deal with complaints about faulty, overpriced goods and loans, pre­ datory sales and financing practices, misleading advertising, fraud, and similar problems. Complaints should receive a fair hearing, allowing sellers full rights to defend themselves and timely redress where appropriate. In addition, consumers should have access to education on their markets and their rights. The United Kingdom’s Trading Standards Office on Consumer Rights, for

Consumer Rights

example, is a highly regarded government consumer rights agency. Its work supports a consumer’s rights to open, accurate, transparent seller claims regarding goods and prices; to protection against fraudulent description of goods on sale; to return goods and get recompense; to ask sellers to repair or replace unsatisfactory goods purchased; and to cancel a contract a short time after purchase, if the goods are not satisfactory quality or do not match the trader’s verbal or written descriptions. It also publishes excellent advisory leaflets on consumers’ problems with goods, services, and financing. As citizens, consumers have the duty to pay taxes and enjoy the right to government support of their rights. Consumers and businesses both share in enjoying public services such as health care, education, unemployment insurance, social assistance, urbanization, policing and defense, and regulations ensuring open, competitive mar­ kets. As a result, consumer affluence, mass markets, and multinational corporations have all grown and prospered.

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Miller R (2002) The Legal and E-Commerce Environment Today. Florence, KY: Thomson Learning. Nissanoff D (2006) FutureShop: How the New Auction Culture Will Revolutionize the Way We Buy, Sell and Get the Things We Really Want. Harmondsworth, UK: Penguin. Ogilvy D (1985) Confessions of an Advertising Man. New York: Atheneum. Sen A (1987) On Ethics and Economics. Oxford: Blackwell. Thurow L (1980) Zero Sum Society. Harmondsworth, UK: Penguin. Yunus M (2007) Banker to the Poor. Micro-Lending and the Battle against World Poverty. New York: PublicAffairs.

Relevant Websites http://www.consumerreports.org – Consumer Reports. http://www.consumer.ca – Consumers’ Association of Canada. http://www.consumersunion.org – Consumers Union (United States). http://www.ftc.gov – Federal Trade Commission. http://www.gov.on.ca – Ontario Government, Consumer Protection Overview. http://www.tradingstandards.gov.uk – Trading Standards Institute.

See also: Business Ethics, Overview; Economic Globalization and Ethico-Political Rights.

Biographical Sketch Further Reading Ariely D (2009) Predictably Irrational. New York: HarperCollins. Boulding K (1970) Beyond Economics. Ann Arbor: University of Michigan Press. Di Norcia V (1998) Hard Like Water – Ethics in Business. Toronto: Oxford University Press. Drucker P (1982) The Practice of Management. New York: Harper. EthicScan (2006) Shopping with a Conscience. Toronto: EthicScan. Galbraith JK (1967) The New Industrial State. New York: New American Library. Klein N (2000) No Logo. New York: Knopf. McLuhan HM (1967) The Mechanical Bride. Boston: Beacon.

Dr. Vincent di Norcia is the author of Hard Like Water – Ethics in Business. He has written articles on business ethics, technological change and philosophy, and has advised businesses on sustainability and ethics. He is University of Sudbury Emeritus Professor of Philosophy. Dr. di Norcia is a lecturer in Sustainability in the Engineering, Architecture and Science Program at the Chang School of Continuing Education, Ryerson University, Toronto, and a lecturer in Classics in the Laurentian University Partnership Center at Georgian College, Barrie. He is a part-time instructor in Sustainability in Engineering.

Contractarian Ethics P Kelly, London School of Economics, London, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Agreement motive An additional motive that contractualist theories employ to explain why individuals seek to justify themselves to others on terms that others cannot reasonably reject. Contractarian theories do not distinguish between an agreement motive and a general motive of self-preference in circumstances of competition. Consent To agree or to give assent. It is used most commonly in political contract theories to explain political obligation and the origin of sovereign power. It involves both an act of mind and an act of will. Those who consent must not be coerced and must give intellectual assent to subsequent obligations. The most famous consent theory of political obligation is that of John Locke (1632�1704), who distinguishes between express and tacit consent. The former is a clear expression of will and intent in a promise or oath. The latter is an informal agreement inferred from the enjoyment of a benefit. Impartiality The perspective of not giving preference to one’s own interests and goals over those of others in deciding moral and political rules. The perspective of impartiality is said to follow from a fundamental commitment to either fairness or equality. It differs from impersonality in that it acknowledges the irreducible significance of the person and is not merely indifferent between ends of preferences. Many philosophers inspired by Kant (1724�1804) see the perspective of impartiality as synonymous with morality. Mutual advantage An agreement that is to everyone’s benefit. This approach to contractarian ethics is most closely associated with the ideas of David Gauthier’s Morals by Agreement (1986). Mutual advantage theories use the ideas of self-interest and game theory to explain how the rules of morality emerge from the circumstances of social cooperation. Critics of mutual advantage theories claim that they do not consider the effects of unequal bargaining power on such agreements, and therefore mutual advantage theories tend to be socially conservative.

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Original Position Contemporary contract theories have avoided reference to the idea of a state of nature because it implies that the point of contract theory is to explain the origin of political authority. Furthermore, state of nature theories have been subject to a long tradition of criticism. The idea of the original position was adopted by John Rawls in his A Theory of Justice (1971) to replace the state of nature with a purely hypothetical account of the circumstances of initial agreement. Reciprocity The idea of complimentary action in return is one of the underlying ideas behind contract theory. If one party offers a benefit, then the other party in a scheme of cooperation has a reason, other things being equal, to offer the same in similar circumstances. If everyone can impose costs and burdens on each other, then if others forebear from burdening me, I have a reason to forbear from harming them. An important question in contract theories is whether reciprocity is a presupposition of contract ethics or an outcome of agreement. This idea is particularly problematic in relation to intergenerational contracts where mutual threats or harms are not possible. State of nature A feature of classical political contract theories. The state of nature is a natural condition prior to the existence of morality, society, and political authority. For Hobbes, it is the absence of all three, but for other contract theorists it involves only the absence of political authority or civil society. The circumstances of the natural condition coupled with an account of human nature are designed to explain why, in the absence of morality or political authority, individuals would create them. Veil of ignorance A device employed within Rawls’ contract theory to ensure the impartiality of the parties to the agreement on the principles of justice. The ‘veil’ denies idealized parties to the agreement specific knowledge about their identities, such as gender, race, age, and conception of the good. It also denies them all but general knowledge about the condition of the society to which the principles of justice are supposed to apply.

Contractarian Ethics

Introduction Contractarian ethics uses the idea of an agreement, con­ tract, or bargain to show us either where moral and political norms come from or why such norms are obliga­ tory and binding, irrespective of their historical origins. It is one of the oldest and versatile traditions of ethical theorizing. Versions of the tradition can be found in preSocratic Greek philosophy and in Plato’s dialogue the Crito as well as in medieval political thought. Today, as the most common form of moral and theorizing adopted by antiutilitarians and anti-realists, the contract tradition is used to do three things: explain the origin of morality, serve as a philosophical explanation of the nature of moral rightness, and address the political problem of distributive justice. In the past, it was also used to explain the origin of political power or sovereignty. No contemporary contract theory claims to offer an explanation of the rise of the state. The different modern uses of the idea of a contract all develop and expand insights derived from the history of this complex and evolving ethical tradition. In recent years, contract theory has been divided into two distinct forms, contractarianism and contractualism. The former traces its origins to the ideas of Thomas Hobbes and his account of the basis of normativity in a mutual advantage agreement between self-interested individuals. Contractualism justi­ fies moral principles on the basis of what no reasonable individual could reject. It thus draws on ideas of equal moral status and significance. This latter tradition has its roots in the works of Rousseau and Immanuel Kant. Both the contractarian and the contractualist variants are central to contemporary ethical theory. Modern con­ tractarians include David Gauthier, Jan Narveson, and James Buchanan, whereas John Rawls, T. M. Scanlon, and Brian Barry are the most influential contractualist theorists. Before presenting an overview of contemporary theories and debates, this article examines the roots of both perspectives in the ideas of Hobbes and Kant.

The Sources of Contractarian Ethics Thomas Hobbes (1588–1679) Hobbes’ greatest work, Leviathan (1651), is a response to the twin challenges of political disorder and moral skepticism. Hobbes is not a moral skeptic, although he is sometimes presented as one. He is clear that the content of moral norms is discoverable by reason; thus, he rejects the view that the content of morality is always local and relative to the particular community. Whatever reason delivers must be available to all. Thus, Hobbes claims the fundamental right of nature is to self-preservation; man is forbidden by reason to do that which is destructive of his life, or that which takes away the means of self-preservation. This right

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of self-preservation gives rise to the law of nature that Hobbes describes as a ‘theorem’ to indicate that it is not a moral law but a prudential maxim concerning the best way to secure self-preservation and freedom from fear of a violent death. Reason in Hobbes’ argument is prudential reason. Although he uses the term ‘law of nature’ to describe this theorem, he admits that as a deliverance of reason it is not a law at all. Thus, although moral laws have reason as the source of their content, they require some­ thing more to make them obligatory. Hobbes’ account of obligation is voluntarist in that he claims the lawlike quality of moral obligation that makes them action-guiding is not to be found in their content but in their source. The normativity or action-guidingness of morality depends on a supreme legislative will that requires obedience by imposing sanctions on noncompli­ ance. Moral obligations are binding because of their source and not because of their content, although Hobbes did not think the content of morality was merely arbitrary, as some commentators suggest. What, then, is the source of moral obligation’s lawlike character? Hobbes locates the source of moral obligation in the will of the sovereign legislator or Leviathan, a ‘mortal’ God, who can impose his will on his subjects. It is to account for the origin of the sovereign that Hobbes appeals to the idea of a social contract. Thus, he uses the idea to explain how moral obligation can be normative or action-guiding. The contract argument works as follows: Hobbes posits the law of self-preservation as a dictate of reason; he then constructs a pre-social state of nature as a state of war. In the absence of a sovereign, each person will act to secure his (seventeenth-century moral theory is not gen­ der neutral) own preservation. This results in conflict because each person is partial to his own advantage and will prefer himself over others. Similarly, he will come into conflict over the resources he needs in order to secure his own preservation, and because there is no moral or political authority, there can be no legitimate claims to ownership that are exclusive. Whatever you hold in your hand, I may take if I need it to preserve myself. Hobbes also posits natural equality in the natural condition. Although men are not all of equal physical power, there is no person so strong that he is not vulner­ able to the stealth of the weak when he sleeps. Differences of skill, wit, and circumstance all contribute to make men equally vulnerable in the state of nature. This natural equality leads to diffidence, or fear and suspicion of one’s neighbor. Diffidence, in turn, encourages men to attack first when they have the advantage rather than waiting until they are vulnerable or in need, and this inevitably leads to a state of constant war between every man. For Hobbes, the pre-political state is not a state of society but one of constant war and struggle ending only in death.

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Thus, prudential reason and the warlike state of nature provide men with a motive to enter an agreement with one another to create the sovereign power who will secure peace and order by imposing his will on all men alike. In making this agreement to institute the sovereign whose will makes moral and political norms possible, individuals move from a pre-social state of chaos to one of society. Hobbes uses the contract device to explain the source of obligation and not the content of morality; however, his positing of an absolute sovereign authority as the answer to the problem of the action-guiding character of morality creates a genuine problem. If sovereignty in the moral and political sphere is absolute and unconditional, then there can be no principled limit on its exercise: Potentially, the sovereign can make up any ‘moral’ obligations he pleases. This creates a problem of political legitimacy that was to preoccupy subsequent contract theorists, most notably John Locke. Hypothetical Contractarianism: Kant and Morality Although the ‘classical’ social contract tradition of the seventeenth and eighteenth centuries began with Hobbes as an attempt to explain the authority of moral norms, it quickly became a political tradition concerned with the legitimacy of sovereign authority and the grounds of political obligation. As such, it would seem far removed from the concerns of modern ethical theory. However, the contract tradition enjoys a central place in contemporary ethics; that it does so is largely the respon­ sibility of the German philosopher Immanuel Kant. As with almost every other field of philosophy in which he wrote, Kant transformed the terms of modern moral phi­ losophy. Consequently, although he contributed to the classical tradition of seventeenth- and eighteenth-century contract theory, his contribution goes way beyond the political concerns of Hobbes, Locke, and Rousseau. Kant’s contribution to the development of contract thinking is to be found most clearly in The Metaphysical Elements of Justice (1797) and The Groundwork of the Metaphysic of Morals (1785). The former work develops the idea of the contractarian device as a hypothetical thought experiment and avoids the problems of the realism or historicity of original contracts by denying that they have to take place. Political authority and moral practices have complex and diverse historical origins, often in force or in fraud. What matters is not how they came about but, rather, what could give them authority. Kant claims that the authority of moral and political norms is not derived from their being recog­ nized as the dictates of pure practical reason, and it is this process of recognition that it is claimed Kant derives from a hypothetical contractual agreement. In this,

Kant’s argument is indebted to Rousseau (1712�78) in that he claims the authority of laws and moral norms is derived from their contractual form. Unlike Rousseau, however, he does not require that this contractual form emerges from a self-legislating political community gov­ erned by the ‘General Will.’ Instead, for Kant the legitimacy of laws and moral norms is guaranteed as long as those norms are such that rational men could have consented to them as the outcome of a hypothetical agreement. This process of consent is simply the recog­ nition of the reasonableness of the moral law. In making this argument, Kant frees the contract tradition from its origins in voluntarism in that the contract is no longer seen as choice, even a hypothetical one; rather, it is a device for representing how we recognize authoritative reasons. As such, the contract device is able to serve as a thought experiment, free from the challenges of histor­ ical skeptics such as David Hume (1711�76). It is in this hypothetical guise that the contractarian device has been used in subsequent moral theory. The second significant development of the tradition that has its roots in Kant’s theory is found in his moral philosophy, particularly in The Groundwork of the Metaphysic of Morals. In this short work, Kant sets out to defend the autonomy of moral obligation and provides an account of the authority of the morality in terms of the categorical imperative: ‘‘Act only according to that maxim through which you can at the same time will that it should become a universal law.’’ Thus, the action-guiding char­ acter of morality does not depend on self-interest or mutual advantage but, rather, on the rational will, the will always to act on norms that can be willed as a uni­ versal law. The categorical imperative echoes Rousseau’s ‘general will,’ which distinguishes between the subjective will and the impartial willing of the general will. However, Kant does not suggest the categorical imperative is embo­ died in a particular form of political community; rather, it is a hypothetical test of the ‘moral obligatoriness’ of norms, not an account of where they came from. This connects with the hypothetical contractarianism of The Metaphysical Elements of Justice in that the universalizability test of the categorical imperative, with its commitment to the idea of impartiality, provides a content for the idea of reason­ ableness. Legitimate laws are those that could be characterized as resulting from a hypothetical agreement between reasonable men. The idea of reasonableness, in turn, is closely connected to the ideal of impartiality so that a reasonable agreement would be one that did not depend on advantage, inequality, or self-preference but could be justified to anyone, whatever their position. Moral justification for Kant takes the form of requiring reasonable consent, but where reasonableness is defined in terms of impartiality based on the rational will. Kant’s use of the contract as a form of impartial consent transformed the contract tradition. However, immediately

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following Kant, the contractarian method fell into abey­ ance as a result of challenges from utilitarianism, Hegelian communitarianism, and Marxism. That Kant’s theory did not have a greater immediate impact is due to the diffi­ culty in showing that men could actually be moved to act in accordance with the categorical imperative. The com­ plexity of the elaborate metaphysics of Kant’s theory of moral psychology, which became the target of Hegel and his idealist successors, does partly explain why he is often presented as the last classical contract theorist.

Contemporary Contractarian Ethics Throughout the first half of the twentieth century, as ethical theory became increasingly concerned with the analysis of moral language and less with substantive moral issues such as what rights, duties, and obligations we have, contract theory seemed increasingly irrelevant. That changed with the work of the American philosopher John Rawls. With the publication of A Theory of Justice in 1971, Rawls succeeded in reinstituting normative political philosophy as a central component of ethical theorizing. Unlike so many of his contemporaries, Rawls was not simply concerned with providing an analysis of concepts such as justice; he was concerned with what justice requires. What is especially significant about Rawls’ work is that he consciously located his theory in the contract tradition dating back through Kant, Rousseau, and Locke. Rawls’ work made contract theory a dynamic contemporary tradition of ethical theory to rival the hegemony of utilitarianism and intuitionism. Since the publication of Rawls’ A Theory of Justice, other contemporary moral philosophers have returned to the classical contract tradition for inspiration. David Gauthier’s Morals by Agreement (1986) draws on a rival version of the contract tradition to Rawls. Whereas Rawls is influenced by Kant and Rousseau, Gauthier draws on Hobbes. T. M. Scanlon has also developed a Kantian-inspired contract theory of moral obligation; however, his interest is different from Rawls, and he uses the device in a significantly different way. Most standard surveys of contemporary contractarian­ ism tend to divide the rival theories into two camps: the Hobbesian ‘mutual advantage’ contractarian theories and the Kantian ‘impartiality’ or contractualist theories. I examine both of these approaches through the dominant exemplars of David Gauthier and T. M. Scanlon. However, I begin with a separate discussion of Rawls’ use of the idea of a contract to justify his two principles of justice. Rawls deserves a separate discussion because his theory combines some features of both contractarianism and contractualism and also because his work has a speci­ fically political focus like that of Brian Barry.

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Social Justice and the Social Contract: Rawls and Barry John Rawls’ A Theory of Justice is not directly concerned with meta-ethical issues or with grounding the whole of morality on prudential rationality. Instead, his is a poli­ tical concern: the problem of social justice – that is, justifying fair terms of social cooperation between men and women who differ about fundamental ends or the good life. In other words, Rawls is concerned with the problem of reasonable disagreement about ultimate ends and values; he does not assume that such disagreement is a sign of there being no objective values at all. Consequently, a theory of distributive justice is an important component, but only one component, of a complete moral theory. The goal of fair terms of social cooperation is important because if people cannot agree on ultimate ends, they can at least consent to the poli­ tical institutions and rules that govern them as long as those rules are seen to be fair. As his metaphor for a just society, Rawls uses the idea of a social contract in its Kantian form as a reasonable agreement. He quite explicitly places his understanding of the problem of justice in the tradition of classical contract theory, by which he means Kant, Rousseau, and Locke (he deliberately excludes Hobbes from this tradi­ tion because he rightly sees Hobbes as not having a theory of consent). As well as using the contract as a metaphor for a just or fair society, Rawls also uses the contract device to legitimize the two principles of justice that he thinks will guarantee that the basic structure of society (its basic rights and institutions) will be fair and thus a legitimate basis for consent. His defense of the content of the two principles of justice is independent of the contract argu­ ment, but he is left with the problem of what special authority his two principles have rather than, for example, distributive principles derived from the principle of uti­ lity. The problem of the legitimacy of the two principles of justice – that each person is to have an equal right to the most extensive basic liberty compatible with an equal liberty for others, and that they are both to everyone’s advantage and attached to positions open to all – is solved, he claims, by showing that they are principles that would be chosen in an initial fair-choice situation. He constructs a hypothetical contract in which the participants are to choose in an original position those principles that should govern the basic structure of their society. However, this choice cannot simply be an unrestricted bargain or else the principles chosen would merely reflect the unequal bargaining power in existing societies and could not therefore be the basis of a free, uncoerced consent. To rectify this problem, Rawls introduces the ‘veil of ignorance.’ This is a constraint that denies the participants in the original position specific knowledge about their goals and life plans, knowledge about their social position,

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and all but general information about their society. The veil of ignorance has the effect of turning a rational calculation of advantage into a situation of impartiality because no one will be able to seek his advantage at the expense of others. Inequalities may well be justifiable in such an agreement, but only insofar as they are to the benefit of the worst off in that society. Rawls’ argument has been the subject of extensive criticisms and comment. Two issues in particular are relevant here: (1) whether choice behind the veil of ignorance would result in Rawls’ two principles and not some utilitarian principle, and (2) whether the contract device does any real work. The first issue has been taken up because Rawls appeals to considerations external to the original position, namely the strains of commitment argument, to preclude the choice of utilitarian distribu­ tive principles. This argument allows one to exclude principles that one would find overburdensome when one returns from the hypothetical choice situation to the real world. It is suggested that because utilitarian princi­ ples might require accepting burdens for no other reason than aggregate utility, they could not be the grounds for reasonable consent over time. The second issue is related, and it questions what work is being done by the contract in the original position. It is claimed that the whole con­ tract argument can only provide a motivation to accept the principles of justice as fair if we already have that motive, because all it does is model a fair decision proce­ dure; it does not provide us with a reason for adopting the impartial perspective when determining what rules should govern social interaction. Because the original political problem of justice is reasonable disagreement over ultimate ends, then surely must this not also extend to the commitment to impartiality? An alternative theory that has attempted to respond to and carry further Rawls’ original political project of grounding fair terms of social cooperation, but without appeal to the original position, is to be found in Brian Barry’s Justice as Impartiality (1995). Like Rawls, Barry is concerned with the problem of justice as arising from reasonable disagreement over fundamental ends and pur­ poses. However, unlike Rawls and following Scanlon, Barry argues that the impartialist solution to the problem of justice depends on the prevalence of the ‘agreement motive’ as the solution to the problem of why one should adopt the perspective of impartiality. This is precisely the issue that, it is argued, Rawls’ original position contract does not answer. Barry makes the further claim against Rawls that if the Scanlonian agreement motive does obtain (and that is an empirical matter), then there is no need for the elaborate device of the original position contract because a Scanlonian reasonable agreement will actually do all the work that Rawls wants. Barry’s argu­ ment retains the deep commitment to the social contract as the idea of a society as a fair or reasonable agreement

between people who disagree about fundamental ends. He merely replaces the elaborate device of the original position contract with a Scanlonian contractualist agree­ ment in which individuals are asked to choose only those principles to govern their affairs that no one could reason­ ably reject. Nevertheless, in its political emphasis on the problem of pluralism about ultimate ends, Barry’s argu­ ment is much closer to that of Rawls, and it demonstrates how significant the contractarian method remains to one of the fundamental problems of moral and political philosophy. Contractarianism: Gauthier The contractarian argument of David Gauthier (Morals by Agreement) offers a response to the challenge of moral skepticism: seeing moral rules as derived from rational constraints on self-interest. It is this derivation of morality from prudence that connects his theory with a Hobbesian version of the contract tradition, although strictly speak­ ing, Gauthier departs from Hobbes’ argument in that he makes the content as well as the authority of moral rules the subject of the agreement, whereas Hobbes confined the use of the agreement to explain the authority of moral norms. Gauthier argues that values are all reducible to preferences and desires, and individual actions can be most economically explained in terms of desire satisfac­ tion. Individual agents may claim to be motivated by altruism and regard for others, but the model of man as an egoistic utility maximizer remains the least metaphy­ sically demanding account of human motivation. If all that has value is individual utility maximization, then no single individual has a reason to regard as inherently wrong any action that harms another person as a consequence of pursuing his self-interest. Similarly, taken as an indivi­ dual, no one person has a reason to respect the system of private property or of the distribution of resources if it does not advantage him. Why, then, do we need morality? The reason is the simple Hobbesian one: If each person attempts to maximize his own advantage without regard to others, the result will be chaos and each person will be worse off. Morality arises from the circumstances of inter­ action between self-interested individuals. Even the strong and the wealthy will have to spend a dispropor­ tionate amount of their resources on security rather than on consumption and enjoyment. Self-interested individuals, therefore, have a reason to accept rules concerning respect for property, promise-keeping, and the rule of law as a condition of maximizing their own advantage. Thus, for Hobbesians such as Gauthier, if there can be moral rules, this must be because these rules are to the mutual advantage of those to whom they apply. (Whether such a situation can be characterized as a society is a matter of controversy.) Gauthier claims such norms can be ‘‘generated as a rational constraint from the

Contractarian Ethics

nonmoral premises of rational choice.’’ The content of the norms will also reflect the relative differences in bargain­ ing power of the participants. Because there are no moral norms prior to this rational derivation of morality, there cannot be any moral constraints on the contract as a mutual advantage bargain. Instead, the bargain or contract applies to the ‘economic surplus’ in society – that is, the difference in the economic product of a society that results from social cooperation and could not, therefore, be the result of uncoordinated individual actions. As such, the bargainers bring with them their individual property holding and, therefore (at least potentially) considerable inequalities of power and influence. This may seem to make any such bargain ‘unfair,’ but the moral value of ‘fairness’ is something that cannot be appealed to, given the skeptical premises from which the Hobbesian starts. The subtlety and originality of Gauthier’s resurrection of a Hobbesian contract has generated a considerable secondary literature. Gauthier’s argument in particular has been responsible for encouraging, along with Rawls, a greater dialogue between ethics as a branch of philoso­ phy and the related disciplines of economics and decision theory. However, his argument has also generated con­ siderable criticism. Gauthier claims to be able to derive moral norms from a minimal common rationality or the desire of individuals to maximize their own advantage. If this argument is successful, it would have considerable significance for the future of moral philosophy. However, quite naturally, many have contested this by either show­ ing that the argument does not work or showing that what it yields is not morality. Many have pointed out that if individuals are strongly motivated to maximize their own advantage, they will retain a strong incentive to ‘defect’ from morality when they can get away with it. Hobbes certainly recognized this problem, which is why he relied ultimately on the sovereign to guarantee morality. Gauthier does not follow Hobbes that far. Another criti­ cism is that Gauthier’s bargaining model of an agreement severely disadvantages children, the weak, and the handi­ capped; in fact, it disadvantages all those who are the beneficiaries of mutual cooperation but who cannot be contributors to it, and this is precisely the class of person that morality is supposed to protect. Because they have little bargaining power and often little physical power, their consent can be bought extremely cheaply in ways that do not maximize or even secure their advantage. Such problems do not necessarily prove fatal, given the skeptical position that Gauthier’s argument commences with. Reason may well deliver little but a pale imitation of our commonsense morality, but unless alternative the­ ories prove more successful in explaining the origin and obligation of moral norms, it may well be the case that Gauthier’s ‘morals by agreement’ is the only morality we can have.

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Contractualism: T. M. Scanlon Whereas Hobbesians such as Gauthier use the contract device to show how we can ground some moral norms on the basis of prudence, an alternative and less skeptical approach is adopted by T. M. Scanlon. He adopts a Kantian perspective by not starting from a position of skepticism; furthermore, unlike the Hobbesian bargaining situation, he replaces the use of natural physical equality with a conception of substantive moral equality as the ground of the agreement. The contractarian device is used to a very different effect by Scanlon. His concern is not to ground morality as such but, rather, to provide a philosophical account of the nature of moral obligation or of respect for persons. In his 1982 article, ‘Contractualism and Utilitarianism,’ Scanlon offers the contract device of a hypothetical, rea­ sonable agreement as an account of moral wrongness. This account, he argues, is better able to make sense of what we do when we judge something morally wrong. He does not offer the contract device as an account of the meaning of moral terms but, rather, as a meta-ethical theory about what wrongness consists of. His contractu­ alism is advanced as a rival to utilitarianism as a meta­ ethical principle, although he concedes that the content of moral norms justified by both theories may well converge. This has the effect of making his argument more abstract than either the ‘foundationalist’ argument of Gauthier or the more political argument of Rawls. Scanlon’s argument has implications for the questions that concern both Gauthier and Rawls, but his primary concern is different; it can best be distinguished as he describes it as a meta­ ethical rather than a substantive theory designed to tell us the content of our moral norms and obligations. Scanlon’s contractualist account of the nature of moral wrongness is best captured in his own brief formulation: ‘‘An act is wrong if its performance under the circum­ stances would be disallowed by any system of rules for the general regulation of behavior which no one could reasonably reject as a basis for informed, unforced general agreement.’’ The idea of reasonable rejection gives every­ one a potential veto and thus a ground of consent to moral norms. However, like Kant, Scanlon states that this rejec­ tion must be reasonable. One cannot ‘reasonably’ reject a rule or system of rules because it conflicts with some selfinterested objective. A Nazi cannot reasonably reject a system of equal rights because it conflicts with his desire to persecute Jews. Reasonableness for Scanlon involves the recognition of equal moral status by treating each person impartially rather than as an instrument to one’s own ends. Why should we adopt the impartialist perspective? For Scanlon, the issue can be sidestepped because he assumes a moral motivation underlies the practice of morality. For Scanlon, this motivation is simply the agreement

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motive – that is, the desire to justify one’s actions in terms that others cannot reasonably reject. This is, crudely put, an idea underlying Kant’s conception of the categorical imperative but purged of its precarious metaphysics of the self. It is a purely empirical question of how widespread this motive is; therefore, it is something that philosophers can put to one side. There remains one major ambiguity in the account I have given. Scanlon’s account of moral wrongness appeals to the ideas of impartial agreement and there­ fore reflects the Kantian form of the contract tradition. However, what does reasonable rejection consist of? Some critics insist that one cannot make sense of the idea independently of morality. Thus, for someone who regards a certain form of behavior – for example, homosexual acts – as morally repugnant, it will be claimed the criminalization of such acts is something that could not be ‘reasonably’ rejected. Scanlon attempts to get around this appeal by ‘informed’ gen­ eral agreement, where informed agreement would be epistemologically rigorous in disallowing arguments based on faith or authority or factual error. The pro­ blem with such a response is that it makes it difficult to show just when any conventional rule or system of rules might actually satisfy the philosophical test of moral wrongness. An unduly rigorous meta-ethical principle will always be subject to challenge from a simpler procedure such as that offered by utilitarian­ ism. However, the influence of Scanlon’s argument is that it has placed contractarianism and not merely substantive moral argument at the heart of meta­ ethics.

Conclusion The work of Rawls, Gauthier, Scanlon, and many others amply demonstrates the continued vitality and diversity of the contractarian tradition in modern ethics. That tradition in its Hobbesian and Kantian strands demon­ strates the vitality of insights derived from some of the greatest philosophers of the modern period. However, despite the centrality of the contract device to both moral and political strands of contemporary ethical theory, there have been signs that its significance is once again on the wane. The main challenge has been directed toward the Scanlonian-type ‘reasonable agree­ ment’ version of contractualism. It is argued that the concept of ‘reasonableness’ cannot provide a purely impartialist ground for moral or political principles because ‘reasonableness’ itself has to have a moral con­ tent, or it presupposes precisely the values it aims to justify. This is the argument of communitarian critics of contractarianism, such as Michael Sandel, Alasdair McIntyre, and Charles Taylor, as well as cognitivist

anti-realists such as Ronald Dworkin and perfectionists such as Joseph Raz. Many, although not all on this list, are in sympathy with some of the substantive conclu­ sions of Rawls-type contractarianism, but they reject the contractarian method adopted to ground moral and political principles. Although in his later work, Rawls has conceded much to such critics, others such as Barry and Scanlon have been rather more robust in defending a contractualist position. If it is the case that contract theory may be falling out of fashion among moral and political philosophers, it remains an enormously versatile and important tradition with many able defenders. Also, as its history shows, it is a theory that has never been off the center stage for very long. To write its obituary would be both premature and extremely unwise. See also: Distributive Justice, Theories of; Kantianism; Liberalism; Political Obligation; Rights Theory; Theories of Ethics, Overview; Theories of Justice, Rawls.

Further Reading Boucher D and Kelly P (eds.) (1994) The Social Contract from Hobbes to Rawls. London: Routledge. Hampton J (1986) Hobbes and the Social Contract Tradition. Cambridge, UK: Cambridge University Press. Kavka G (1986) Hobbesian Moral and Political Theory. Princeton, NJ: Princeton University Press. Kelly P (ed.) (1996) Special issue on justice as impartiality. Utilitas 8(3). Korsgaard C (1996) The Sources of Normativity. Cambridge, UK: Cambridge University Press. Kymlicka W (2002) Contemporary Political Philosophy, 2nd edn. Oxford: Clarendon. Lessnoff M (1986) Social Contract. London: Macmillan. Scanlon TM (1998) What We Owe to Each Other. Cambridge, MA: Harvard University Press. Vallentyne P (ed.) (1991) Contractarianism and Rational Choice. Cambridge, UK: Cambridge University Press.

Biographical Sketch Paul Kelly, M.A. (York) and Ph.D. (London), is Professor of Political Theory at London School of Economics, where he has taught since 1995. He previously held research and teaching posts at the University of Chicago, University College London, and the University of Wales at Swansea. He is author, editor, or co-editor of 10 books, including Utilitarianism and Distributive Justice (Oxford University Press, 1990); The Social Contract from Hobbes to Rawls (Routledge, 1994); Impartiality, Neutrality and Justice (Edinburgh University Press, 1998); British Political Science (Blackwell, 2000); Multiculturalism Reconsidered (Polity, 2002); Political Thinkers, revised second edition (Oxford University Press, 2009); Liberalism (Polity, 2004); and Locke’s Second Treatise (Continuum, 2007). He is currently working on the legal and political philosophy of Jeremy Bentham and of Ronald Dworkin and also on the development of British political philosophy in the twentieth century.

Corporate Ethics, Reputation Management J Sandberg, University of Gothenburg, Gothenburg, Sweden ª 2012 Elsevier Inc. All rights reserved.

Glossary Corporate social reporting The process of communicating the social and environmental effects of corporations’ economic actions to particular interest groups in society or to society at large. Corporate social responsibility The voluntary consideration of certain non-economic, particularly

social or environmental, values in corporate decision making. Reputation management The practices employed by corporations aimed at improving the public perception of the corporation. Stakeholder A person, group, organization, or system that affects or can be affected by a corporation’s actions.

Reputation management can be taken to refer to all the practices employed by corporations aimed at improving the public perception of the corporation or, specifically, at making key stakeholders (e.g., customers, employees, investors, communities, or potential business partners) perceive the corporation in a more positive light. Although the kind of practices most commonly associated with this obviously are certain communicative activities, such as marketing campaigns, the organizing of public relations (PR) events, and other examples of corporate ‘spin,’ a whole array of further activities on the part of modern corporations can probably be described as parts of their reputation management. Corporations typically want to be associated with quality and value and to be perceived as credible, reliable, and trustworthy; the ben­ efits they stand to gain from this include greater loyalty from consumers, being able to charge higher prices for their products, and being able to attract and retain highquality employees. The latest trend is that corporations also want to be perceived as responsible and caring – a trend sometimes referred to as the ‘corporate citizenship’ or ‘corporate social responsibility’ (CSR) movement. Although enjoying a good public reputation probably always has been important for the commercial success of certain kinds of commercial enterprises, recent years have seen a massive focus on and interest in active reputation management from corporations. Consumers are becoming increasingly aware of the social and environmental dimensions of various kinds of commercial activities, and with the innovation of modern information technol­ ogies these dimensions of corporate activity have also become much more visible. Meanwhile, ever-increasing competition in the global economy has created a need for companies to compete more aggressively for the support of consumers, investors, and communities alike. These developments have created a market for a new kind of high-profile employee, the reputation manager, who has been given increasingly more power over how corpora­ tions are run. An endless stream of books are being

published on ‘successful brand building’ and ‘how to manage your reputational capital’ by management gurus, and one of the most fashionable research topics at business schools today is measuring exactly how much money a company can make from having a good reputation. It is not difficult to understand why certain ethical issues are often discussed in relation to the reputation management practices of modern corporations. When just about all commercial companies suddenly emphasize social responsibility and boast about how much they are doing to strengthen the local community or to save the rain forests, it is easy to become cynical and have doubts about their honesty and credibility. A series of reports in the media have also revealed some of the darker side to corporate reputation management, including reports about how multinational pharmaceutical companies have tried to suppress publications about the negative side effects or lack of potency of their drugs, how very high-profile investment firms apparently have tampered with their financial accounts to give a more successful appearance, and how investment funds marketed as ‘ethi­ cal’ or ‘socially responsible’ actually have been found to hold considerable investments in the tobacco and arma­ ments industries. Many stakeholders have reacted negatively to these events, but not all of them have stood passively by and done nothing. Both consumer and shareholder advocacy groups are starting to engage more actively with corpora­ tions in efforts designed to exploit their increased focus on reputations and with the aim of persuading them to endorse more progressive social and environmental poli­ cies. The corporate reputation has thus become a central battleground for contemporary business ethics. This article outlines the main features of some of the most common points of discussion pertaining to the ethics of reputation management. The first section elaborates further on the scope of activities that reputation manage­ ment could be said to consist of, the second section

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introduces the discussion on the ethics of corporate com­ munication, and the third section addresses the more general issue of business motives in relation to contem­ porary CSR management. The final section considers the involvement by stakeholder activists in the battle over corporate reputations and some of the discussion this has given rise to.

Scope of Activities The kinds of practices most commonly associated with corporate reputation management, as noted previously, are mainly communicative activities such as marketing campaigns, the sending out of press releases, and the organizing of PR events. According to the popular view, then, reputation management is mainly about how cor­ porations put a ‘spin’ on various kinds of events or activities or how they, through effective communication and ‘countercommunication,’ try to make stakeholders perceive events in a way that is favorable to their corpo­ rate bottom line. There is really no end to the ethical controversies surrounding reputation management in this sense. We may refer to this as the narrow conception of reputation management in what follows. Because I believe this narrow conception of reputation management raises a number of interesting ethical issues on its own, I deal with these in the following section. According to most contemporary management scientists, however, effective corporate reputation man­ agement both can and should be much more than clever communication management. Contemporary manage­ ment scientists typically stress the need to build reputations ‘from the inside out’ – that is, to start by building a strong corporate identity or culture and to make reputation management an essential part of the strategic management of the company at all levels. We may call this the wide conception of reputation manage­ ment. In this view, reputation management could be said to encompass just about all kinds of strategic operations of corporations – for instance, product development, pri­ cing, accounting practices, the hiring and firing of employees, and payments to suppliers – as well as com­ municative activities. Contemporary cases of ‘stakeholder management’ and so-called ‘triple bottom line manage­ ment,’ both central parts of the CSR movement, may be examples of reputation management in this wide sense. For obvious reasons, reputation management in this wide sense raises a whole range of further ethical issues and I cannot discuss all of them in this context. However, later I will discuss the quite general issue of the ethics of the profit motive specifically in relation to this wide concep­ tion of reputation management. Perhaps the full span of types of activity in reputa­ tion management which there may be ethical reasons

to keep track of is most easily brought out by con­ sidering the ways in which corporations can combine narrow and wide reputation management – that is, how they can combine different kinds of communica­ tive activities (what they say that they do) with different kinds of underlying or noncommunicative activities (what they actually do). We may distinguish between at least four types of activity here that, at least prima facie, seem to differ somewhat in their ethical features. One type is where corporations sim­ ply cater to the needs of stakeholders, or do what they think that social responsibility requires of them, with­ out making too big of a point of this either in advertisement or in the popular press. Another is where corporations cater to the needs of stakeholders but indeed make a big point of this; perhaps they even exaggerate their true dedication to stakeholders’ needs. A suggestion regarding how these two types of activity may differ in ethical features is given later. A third type of activity is where corporations make themselves out as responsible or caring but in reality do nothing, or at least very little, to further the needs of stakeholders: we may call these cases of straightforward PR coups. Finally, a fourth type of activity is where companies portray themselves as responsible or caring while actually violating the needs of their stakeholders or failing to defend these against conspicuous external threats. We may refer to this last kind of activity as cover-up cases. A suggestion regarding how these last two kinds of cases may differ in ethical features is given in the following section. The characteristics of these kinds of activities will be further elaborated on throughout the article. The topic of the debates introduced here is obviously what to think of the ethics of the different activities in reputation manage­ ment, and whether there indeed are any interesting differences in the ethical features of the kinds of activities just mentioned.

The Ethics of Corporate Communication Reputation management in the narrow sense – or corporations’ active use of communication and countercommunication in attempts to influence public perceptions, either through an in-house PR department or through the retainment of external communication consultants – is quite often a target of ethical criticism. According to many people, both academics and members of the general public, reputation management in the nar­ row sense basically seems to be the business of lying and deceiving as effectively as possible, and corporate ‘spin doctors’ (the derogatory term used for corporate PR agents or press secretaries) are often portrayed as a fancier kind of conmen in different popular literature

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and TV series. Interestingly, then, the public perception of the group of professionals who are supposed to be experts on influencing public perception is strikingly poor. However, exactly why is corporate spin-doctoring considered unethical, and is this common view warranted? Debates on the ethics of corporate communication tend to be between proponents of two rather extreme positions. On the one hand, some writers argue that only full and accurate disclosure of all kinds of social and environmental effects of corporate activities can be accep­ table on the part of corporations, basically because the public has a right to know what corporations are doing and what they are not doing. On the other hand, others seem to suggest that just about all kinds of communicative activities by corporations can be ethically acceptable as long as they are legal and they are warranted in relation to strategic corporate purposes. To understand why the debate tends to push commentators to these extremes, consider the seemingly straightforward intuition that con­ sciously and actively lying about, for example, the risks associated with going into a certain line of business activ­ ity is morally wrong on the part of a corporation. Representatives of both of the preceding camps would typically claim adherence to this intuition – the latter camp because lying about such things quite often is illegal. However, where does lying stop and more elusive forms of deception start? Despite the public perception of corporate spin doc­ tors, it is probably not so common that corporations spread outright lies in advertisements or to the media. Some more common practices may be ‘budging the truth only so slightly’ or what could be called puffery (i.e., the exaggeration or magnification of events or activities). Corporate advertisements are obviously full of exaggera­ tions about the ‘miracle effects’ or ‘bargain price’ of this or that product and also of quite contorted uses of statistics that are supposed to show how a certain product or service is cheaper, more effective, or more widely pre­ ferred than other products and services (‘9 out of 10 prefer our brand of cola’ – 9 out of 10 what? Based on what evidence?). Now, are these practices as morally proble­ matic as outright lying? Proponents of the laissez-faire view (as we may call the latter view outlined previously) often suggest that members of the general public can be expected to know that corporations sometimes exaggerate or budge the truth a bit – after all, examples such as the preceding ones should indeed be very familiar to most us – so similar practices may really be rather innocuous. But then again, some people, including some journalists, may arguably be more naive and may therefore still be deceived by such types of communication. Most people probably think that there indeed is something morally problematic about such kinds of activity.

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Another practice sometimes employed by corporations is the spreading of misleading information, or ‘disinfor­ mation’ – that is, information that technically may be true but is irrelevant or simply taken out of its proper context. Examples of this may range from the fairly innocuous and common use of sports celebrities in TV ads for all kinds of non-sports-related products to the more malicious case of corporations spreading vast amounts of irrelevant facts and figures as ‘smoke screens’ designed to divert attention away from some public scandal or a corporate practice not well received by members of the press. Is the spreading of misleading information just as wrong as lying? Some may once again argue that members of the general public, and especially members of the press, should be able to see through similar stunts. However, most people would probably consider at least the spreading of smoke screens as a fairly conspicuous form of corporate deception. A final kind of practice sometimes employed by corporations is the deliberate absence of communicative activities. In many circumstances, corporations may actively choose to be silent about a certain set of events – for example, they may simply refrain from commenting on certain allegations from consumers or communities – even though one may think that some form of comment or statement is ethically called for. A familiar scene from the evening news is a corporate spokesperson simply saying ‘No comment’ or perhaps rambling on about something completely different in an effort to try to change the topic of conversation. This may indeed be a quite cost-efficient communicative strategy for corporations in many cases. In other cases, which have received much public scrutiny, corporations may suggest that they have nothing to report but this may simply be because they have not taken the time to find out about, for example, the effects of their activities on a certain local community or the environment. Although such scenarios clearly do not involve lying, many commentators suggest that these scenarios actually are the worst from an ethical standpoint. According to these com­ mentators, then, it seems plausible to suggest that corporations not only have the responsibility to disclose what information they already possess but also sometimes have an obligation to actively collect certain kinds of information and then disclose it. The distinctions between the various examples of corporate spin discussed here are obviously quite elusive, and this is probably part of the reason why many com­ mentators have been tempted to suggest that corporations simply have a positive obligation of full and accurate disclosure – that is, to tell ‘the whole truth and nothing but the truth.’ Although the elusiveness of the forms that corporate deception can take may make it a difficult target for direct legal regulation, the safest and most straightforward ethical route seems to be to admit no gray areas. However, this position is indeed rather extreme, and it invites certain obvious counterarguments.

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According to proponents of the Laissez-Faire view, the preceding position fails to take into account the plausible difference in obligations between the public and the pri­ vate spheres. If the general public has a right to know about certain things, it is argued, this should be an obliga­ tion on the part of governments or the media rather than on the part of commercial companies. Corporations can­ not be treated like public service organizations – after all, requiring constant dedication to both the gathering and the dissemination of all information that may be relevant to people’s choices would impose enormous costs on private companies and could therefore dampen economic growth. Furthermore, as already noted, proponents of this view suggest that members of the general public plausibly have an obligation to find out about certain thing for themselves. Proponents of the Laissez-Faire view often note that the media and the general public could be seen as accom­ plices in the growth and success of corporate spin: It is partly because of ‘how we are,’ or how the general public and the media behave, that the simple rumor spreads more easily, and often also is viewed as more interesting, than the complicated truth. It is simply because we are so easily persuaded by certain kinds of messages, then, and because we seldom take the time to engage more actively and critically with the flow of information that is out there, that we are easily seduced by fairly obvious PR stunts on the part of corporations. However, if some people are seriously misled by the commercial activities of certain companies, then this is at least to some degree their own fault. As far as corporations act within the boundaries set by law, and act prudently, they are acting within their ethical rights. Are both of these positions too extreme? Is it possible to find some middle ground between the two? Perhaps it is. Perhaps greater attention should be given to possible differences in ethical features between the different types of activities in reputation management outlined in the previous section. Calls for full and accurate disclosure are particularly commonly expressed in relation to cor­ porations involved in public scandals – for example, when piles of toxic waste are discovered near a certain corpora­ tion’s facilities or rumors are spreading about several accounts of gross misconduct among a certain company’s employees. This may be taken as an indication that coverup cases – that is, cases in which companies try to keep up appearances although they are involved in violations of stakeholders’ needs (or they are negligent of conspicuous external threats to those needs) – are the most serious in this context. In cases in which members of the general public have a justified fear that gross violations of stake­ holders’ needs may be taking (or have taken) place, corporations have an obligation of full and accurate dis­ closure simply because the stakes are so high. In other cases, however, when the stakes are not as high, it could

perhaps be permissible to budge the truth a bit, or exag­ gerate, or cite some facts and figures outside of their true context. Most straightforward PR coups, for instance, are probably rather innocuous and also easy for the general public to see through. Whether this middle position indeed makes sense, and whether it is more plausible than the two extremes out­ lined previously, is an issue I leave to the reader to decide.

‘Doing Well by Doing Good’ In the contemporary management literature, as I have noted, it is quite generally agreed that effective corporate reputation management both can and should be much more than clever communication management. Contemporary management scientists typically stress the need to strengthen the ‘culture’ of corporations or build a strong corporate ‘identity.’ Both of these concepts are generally taken to refer to a set of core values of an organization that shape both how it acts and how it communicates with the outside world. In short, then, management scientists stress the need to build reputations ‘from the inside out,’ or to make reputation management an essential part of the strategic management of the company at all levels. There are many examples of corporations embracing this wider view of reputation management, and some of them are indeed quite interesting from an ethical stand­ point. One example may be so-called ‘stakeholder management,’ a management style based on the belief that the success of a corporation ultimately depends on to what extent the different stakeholders (e.g., customers, employees, investors, and surrounding communities) are ready to interact with and support the corporation. Under a stakeholder management model, then, corporations will typically have far-reaching interaction with representa­ tives of different stakeholder groups and negotiate business strategies that are as close as possible to their needs. Another contemporary example may be so-called triple bottom line management, which builds on the idea that the social and environmental dimensions of commer­ cial activity are just as essential for the success of corporations as the economic dimension. Triple bottom line companies thus profess themselves to not just one but, rather, three ‘bottom lines’ (i.e., three ultimate objectives of the corporation) – one economic, one social, and one environmental. Many commentators suggest that the rise of these new sorts of management styles and other developments of the CSR movement are examples of clear advances in the way in which commercial companies react to contempor­ ary social and environmental problems. However, is this really correct? Has the world really become a better place with these developments? Interestingly, some commenta­ tors suggest that these developments are simply new ways

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in which corporations can re-describe – and thus to some extent obfuscate – what they are doing, and that they have not really solved the underlying problem. The point of corporate appeals to CSR is obviously to make money – that is, to create an aura of social responsibility in order to be able to reap the economic benefits that are associated with having a good public reputation. According to critics, then, although appeals to ‘the needs of stakeholders’ and ‘triple bottom line’ may look good on paper, they are generally just window dressing. A fundamental problem with reputation management in general, according to these critics, is that everything is done from the motive of looking good instead of from the motive of doing good for its own sake. The critics are probably correct in that most companies adopt these new CSR management styles mainly for the sake of reaping the economic benefits associated with having a good public reputation. The main arguments given in the management literature for why corporations need to focus on corporate identity and culture are notably instrumental. It is suggested that making CSR a fundamental part of the strategic management of the corporation lends increased credibility to the corporation’s attempts at making itself out as a socially responsible company; that is, it simply seems easier to be perceived as responsible or caring if one actually does what a respon­ sible or caring corporation is expected to do. Furthermore, it is often argued that violations of the needs of stake­ holders most often will become known, as several scandals have shown. The adage of the day – a motto used in, for example, both academic and practitioner-oriented confer­ ences on CSR throughout the world – is ‘doing well by doing good’ (i.e., exactly making money out of attention to stakeholder needs). In summary, most corporations prob­ ably adopt these new CSR management styles mainly for the sake of economic benefits. But why should this be problematic from an ethical standpoint? One interpretation of the critics’ argument is that ‘doing well by doing good’ is thought to be self-defeating as a business strategy. Some commentators have argued that most stakeholders are fully aware of the fact that corporations only integrate social and environmental con­ siderations into their management decisions in order to create an aura of respectability, and so they see through insincere corporate appeals to CSR and further values. Many commentators talk about the risk of increased cyni­ cism about corporate social responsibility, both on the part of the general public and on the part of corporate executives themselves. In this view, then, corporations employing CSR management styles for material reasons are basically wasting a lot of money and energy on some­ thing that does not work. However, whether stakeholders indeed are averse to materially motivated CSR measures remains to be seen; in fact, the dramatically increased use

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of such measures in the business world seems to contra­ dict this view. A more radical interpretation of the critics’ argument is that it simply boils down to the idea that it is unethical (or lacking in moral worth or less than fully virtuous) to act out of material interest rather than for the sake of doing good as such. This position is actually not so uncommon, neither among the general public nor among philosophers. There is a famous passage in one of Immanuel Kant’s works, for instance, in which Kant suggests that a shopkeeper who refrains from charging a small boy overprices on his goods only for the reason of safeguarding his reputation is not acting from proper moral motives, but the proper moral motive would be to refrain from doing so because this is the ethically right thing to do. Now, it should be noted that this idea is indeed quite radical. Making money is obviously a central part of what all commercial companies strive to do, even though it may not always be their only motivation for the more specific activities they engage in. If acting from a profit motive is thought to be unethical or lacking in moral worth, then most of the business world as we know it is morally corrupt. Perhaps one may once again seek to find some middle ground between two extreme positions here – that is, between the idea that all commercial activities are morally corrupt and the idea that the CSR movement basically is God’s gift to the earth. One could once again emphasize differences in ethical features between the different types of activities in reputation management outlined previously by suggesting, for example, that there is a difference between CSR practiced more or less in silence and CSR manage­ ment practiced with the aim of maximum public or media exposure. As long as corporations further the needs of their stakeholders without boasting too much about it, perhaps the issue of exactly why they do so may be less important. It is only when corporations start to boast too much about their CSR practices, and essentially dedicate resources to doing this that they instead could have used to actually do that which is in the stakeholders’ interests, that things start to become worse. Corporations should simply stop showing off about how responsible or caring they are and get back to the business of actually being responsible and caring.

The Politicization of Corporate Reputations Quite irrespective of what one may think of the ethics of corporate reputation management, it certainly seems here to stay. This is something that different kinds of stake­ holder advocacy groups are taking advantage of to an increasing extent. That is, a number of initiatives on the part of stakeholders are trying to exploit the fact that corporations want to be perceived as responsible and

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caring in efforts aimed at persuading them to endorse more progressive social and environmental policies. These advocacy campaigns can and have taken many forms: Consumers have targeted companies with protest marches and calls for public boycotts; concerned share­ holders have organized rallies outside the annual general meetings of corporations; and a number of nonprofit organizations have started to publish reviews of how companies perform on social and environmental dimen­ sions, designed specifically to raise awareness about these dimensions. Many of these campaigns seem to have been highly successful. Activists have successfully lobbied corpora­ tions to make them, for instance, strengthen the rights of employees, move out of regions dominated by corrupt regimes, and phase out the use of environmentally hazar­ dous materials in products. Indeed, the surge of interest in CSR and stakeholder management on the part of corpora­ tions is probably due in large part exactly to these kinds of campaigns organized by consumer and shareholder acti­ vists. Whether and how stakeholder activists really can create systematic and far-reaching changes in corporate conduct (or ‘business as usual’) by exploiting corpora­ tions’ interest in reputation management, however, and specifically whether governments need to play a role in this development, has been the subject of many debates among business ethicists in recent years. Stakeholder activists face many difficulties in their battle over corporate reputations and the corporate agenda. One difficulty is the informational asymmetry between stakeholders and corporations. It is simply quite difficult for stakeholder advocacy groups to gather com­ plete and accurate information about the social and environmental effects of all the activities of a large cor­ poration and specifically to obtain solid evidence in cases of corporate misconduct and deception. A second difficulty is the lack of established and effective commu­ nicative platforms on the part of stakeholders that could be used to get their message out. Few nonprofit organiza­ tions have access to the same kind of PR teams or communicative networks as the large corporations do, and this problem is obviously even greater for individual stakeholder activists. Furthermore, the communicative infrastructure of Western societies actually seems to be rigged in favor the corporations; whereas corporate advertisements and messages are broadcast continuously on most TV networks, and can be found on almost every page of newspapers and tabloids, stakeholder activists have to struggle tremendously to get just a snippet of their story in the mainstream news reporting. The general difficulty underlying most of this is obviously the salient lack of resources and power on the part of stakeholders compared to the enormous budgets and networks of influence of modern multinational cor­ porations. Although stakeholder activists may be quite

dedicated individuals or organizations with considerable social and political networks, they have a difficult time competing with the enormous economic, social, and poli­ tical influence of large corporations. In the battle over the corporate reputation, then, stakeholder activists are David and corporations are Goliath. It is not entirely unheard of that these corporations use their financial clout to put pressure on activists directly: Many stakeholder advocacy groups complain about threats of litigation, for instance, and some companies have indeed sued activists for libel and defamation as a reaction to publicly made allegations about the social and environmental effects of their activities. Some commentators argue that these all are good rea­ sons for government regulation of corporate reputation management or at least the active involvement of public authorities in this area. Public authorities could play a number of roles: They could perhaps provide the commu­ nicative platforms that stakeholder advocacy groups need, publish independent and official reviews of the social and environmental dimensions of corporate activities, or issue recommendations on standards for corporate social and environmental reporting. Opponents of government invol­ vement in these matters, however, argue that many of these suggestions would only lead to increased bureaucratization in society and also could impede competition and innova­ tion. Furthermore, it has been suggested that corporations can always find ways of working around, or actually exploiting, similar regulations or recommendations. Of the previous suggestions, the idea of common stan­ dards on corporate social and environmental reporting seems to have the most widespread support among com­ mentators, and this is probably because it combines the idea of independent standards controlled by public autho­ rities with the idea that it is entirely up to corporations whether or not they wish to adhere to these standards. Indeed, some such standards on social and environmental reporting have been issued by certain governments and powerful suprastate actors such as the United Nations and the European Union. Most widely adhered to are prob­ ably the recommendations of the Global Reporting Initiative, an industry initiative on guidelines for corpo­ rate environmental reporting affiliated with the United Nations. However, critics question the progressive nature of these voluntary standards. For instance, stakeholder acti­ vists have coined the terms ‘greenwashing’ for certain corporations’ attempts to boost sales by disingenuously portraying their products as ‘green’ or environmentally friendly (while they in fact often may contain environ­ mentally hazardous materials) and ‘bluewashing’ for similar attempts by corporations to create an aura of respectability by disingenuously stressing their adherence to the recommendations of the United Nations. Whether these developments indeed will lead to a better balance

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between corporations and stakeholders in the battle over corporate reputations remains to be seen.

Conclusion The practices of contemporary reputation management by corporations certainly raise many serious ethical issues. This article has simply been a brief elaboration on some of the most common points of discussion in relation to such practices and thus does not give the final word on any of these issues. To the extent that the reader agrees with the positions described here as the less extreme alternatives, however, an interesting conclusion seems to be that most of what is ethically problematic about reputation manage­ ment lies in what it is not rather than in what it is. That is, perhaps both corporate spin-doctoring and the contem­ porary use of integrated management models (although the former certainly is more problematic than the latter) are really relatively innocuous in and of themselves. What is most problematic about corporate reputation management is the amount of energy and resources devoted to it, which simply could have been spent on activities that benefited stakeholders more. It is obviously difficult to predict what the future holds for corporate reputation management. As I have noted, however, some stakeholders have become very active par­ ticipants in the battle over the corporate reputation; that is, stakeholder activists are starting to exploit the fact that corporations want to be perceived as responsible and caring in efforts designed to persuade them to change their ways. Irrespective of whether support from governments is needed to improve the situation, these activists certainly seem to have been rather successful so far. At least many important ethical and political issues pertaining to corpo­ rate reputation management are now being discussed. See also: Accounting and Business Ethics; Advertising; Business Ethics, Overview; Communication Ethics; Corporations, Ethics in; Corporate Responsibility; Environmental Compliance by Industry.

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Further Reading Beal A and Strauss J (2008) Radically Transparent: Monitoring and Managing Reputations Online. Indianapolis, IN: Wiley. Cooper SM and Owen DL (2007) Corporate social reporting and stakeholder accountability: The missing link. Accounting, Organizations and Society 32: 649–667. Doorley J and Garcia HF (2006) Reputation Management: The Key to Successful Public Relations and Corporate Communication. New York: Taylor & Francis. Fombrum CJ (1996) Reputation: Realizing Value from the Corporate Image. Boston: Harvard Business School Press. Henriques A (2007) Corporate Truth: The Limits to Transparency. London: Earthscan. King D (2000) Stakeholders and Spin Doctors: The Politicisation of Corporate Reputations, Hawke Institute Working Paper Series no. 5. Adelaide: University of South Australia. Laufer WS (2003) Social accountability and corporate greenwashing. Journal of Business Ethics 43: 253–261. L’Etang J and Pieczka M (eds.) (2006) Public Relations: Critical Debates and Contemporary Practice. Mahwah, NJ: Erlbaum. Parsons PJ (2004) Ethics in Public Relations: A Guide to Best Practice. London: Kogan Page. Schlegelmilch BB and Pollach I (2005) The perils and opportunities of communicating corporate ethics. Journal of Marketing Management 21: 267–290. Seib P and Fitzpatrick K (1995) Public Relations Ethics. Orlando, FL: Harcourt Brace. Standlea DM (2006) Oil, Globalization, and the War of the Arctic Refuge. Albany: State University of New York Press. Stuart H (2004) Risky business: Communicating corporate social responsibility. In: Wiley J (ed.) Proceedings of the Australian and New Zealand Marketing Academy Conference, CD-Rom. Wellington, NZ: Australian and New Zealand Marketing Academy.

Biographical Sketch Joakim Sandberg is a Research Fellow in Philosophy at University of Gothenburg, Sweden. His main academic interests are moral philosophy and applied ethics, especially business ethics. Joakim’s Ph.D. dissertation critically examined concep­ tions of so-called socially responsible investing, and he has more recently been involved in international research projects on investment regulation and microfinance. During 2009, Joakim was a Visiting Research Fellow in Global Ethics at University of Birmingham, UK. Joakim is president of the Philosophy Society at University of Gothenburg and a member of the Gothenburg Animal Research Ethics Committee.

Corporate Governance J R Boatright, Loyola University Chicago, Chicago, IL, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Bankruptcy A legal status in which an insolvent corporation, individual, or other legal entity has protection from creditors when debts cannot be paid while undergoing a process either for the partial or full repayment of debts or for a liquidation of assets to satisfy creditors’ claims. Bankruptcy may be sought either voluntarily by the entity in question in order to recover solvency or the ability to pay or involuntarily by the creditors to force full or partial repayment or liquidation. Because creditors control the process, bankruptcy may be understood as corporate governance under conditions of insolvency. Board of directors The persons elected by the shareholders of a corporation to exercise control over major decisions regarding strategy, policy, financing, leadership, and other important matters. The directors select and set the pay of the chief executive officer (CEO) and of some other high-level officers or executives. Directors are independent when they are not officers or executives of the corporation. A corporation has a unitary board structure when the chairman is the CEO or a dual structure when the chairman is an independent director. Corporations in most countries have a single board of directors, but some European countries mandate two boards, usually designated as a management board and a supervisory board. Equity capital The investment made in a corporation by the shareholders or owners, who have provided monetary resources in return for shares of stock. Equity capital is contributed for the life of the corporation in return for a claim on the residual revenues or profits of the corporation. This investment differs from debt capital, which is provided by lenders for a fixed period of time in return for a fixed claim on the nonresidual revenues of a corporation. Because equity capital providers have a claim on only the residual revenues, which are all revenues that remain after all fixed claims or debts are paid, they are residual risk bearers, who receive compensation only when a corporation is profitable, whereas providers of debt capital and all others with fixed claims must be paid as long as the corporation is solvent. Fiduciary duty The duty of a person who has been entrusted with the care of another person’s property or other valuables to exercise discretionary judgment in all matters related to this property or valuables in the

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interest of this other person, called the beneficiary, without gaining any material benefit without the knowledge and consent of the beneficiary. The standard duties of a fiduciary with regard to a beneficiary are candor, care, and loyalty. A fiduciary duty is often present in cases in which it is necessary for the beneficiary to rely on the goodwill of a fiduciary because the fiduciary possesses superior knowledge or ability that prevents the beneficiary from directing or monitoring the fiduciary. Human capital The investment made in people’s knowledge and skills to increase their productivity. This investment may be made by an individual person (by paying for an education) or by an employer or the state (by providing training or free education). Human capital is relevant to corporate governance when this investment is firm specific; that is, it is more valuable to a current employer and cannot easily be withdrawn from production, in which case employees may become residual risk bearers along with shareholders. Nexus of contracts A description of a corporation as the center or nexus of all the contracts that the various corporate constituencies make with a corporation as it engages in production. Described in this way, a corporation is dissolved as an entity and becomes merely a complex of contracts that reflect the terms on which each constituency (employees, customers, suppliers, investors, and others) is willing to participate in joint production. The terms of these contracts can be further understood economically as market choices. Residual revenues The revenues of a corporation that remain (the residue) after all debts and other obligations are paid. Also known as net income or profits, residual revenues represent the net margin that exists when all expenses of production are covered. A claim on residual revenues is a residual claim (as opposed to the fixed claim of other resource providers), and the holder of a residual claim, usually the shareholders, becomes a residual risk bearer inasmuch as such a claim need be satisfied only if a corporation has a net income or profit. Sarbanes–Oxley Act Legislation of the U.S. Congress in 2002 in response to the collapse of Enron and other corporate scandals. Aimed at correcting the main causes of these events, the focus of this act is largely on reforms in corporate governance and accounting. The impact on corporate governance includes the promotion of more independent and better informed directors.

Corporate Governance

Shareholder primacy The doctrine that shareholders rightfully control a corporation and that shareholder interests are and should be the objective of the corporation (known as shareholder wealth maximization). Shareholder primacy is the commonly accepted answer to the question of whose interest a

Introduction In its broadest sense, corporate governance is the set of legal rules that determine how decisions are made in business organizations. The shareholders of publicly held corporations and the directors, whom they elect, are commonly recognized as having de jure control, but these shareholders and directors, as well as the managers, who typically exercise de facto control, are subject to the power of many groups that, acting within their legal rights, strongly influence and often determine corporate decisions. Most notable among these groups is govern­ ment – federal, state, and local – which has the legal power to regulate and tax. In addition, auditors and accounting standard setters, securities exchanges, rating agencies, banks, the media, and society at large, along with capital markets, labor markets, commodity markets, and consumer markets, provide a multitude of constraints within which corporate decision making takes place. Finally, many decisions in business firms are made by employees at all levels as part of their role responsibilities. Viewed in this broad sense, corporate decision making is very highly dispersed among many diverse groups, and the commonly recognized corporate governance actors, namely shareholders, directors, and senior executives or officers, make comparatively few decisions. However, these decisions are among the most important ones, and it is these major decisions that are identified with the ultimate control of business organizations that is the subject of corporate governance. Corporate governance in this more common, narrower sense of the term is the set of legal rules that specify the parties that have the right to make the most important decisions in business organizations that constitute corpo­ rate control, as well as the legal rules that specify the processes and procedures by which these parties exercise this decision-making power or control. One of the most important decisions is the determination of whose inter­ ests a corporation will serve. Although a corporation may be organized for any legal purpose, the parties with con­ trol – that is, the shareholders – seek most often to operate a corporation in their own interests, thus making share­ holder wealth the standard objective of the firm. As a consequence, the specification of the group with control

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corporation should serve. The main alternative is a multi-stakeholder conception of the corporation, which holds that the interests of many stakeholder groups besides shareholders, including employees, customers, suppliers, and the community, should be served by corporations.

rights in a corporation largely determines the interests that a corporation will serve. However, the assignment of control rights, as well as the processes and procedures for exercising control, is of little importance in a corporation in which a single individual or a small group has control rights and effective day-to-day control – that is, a cor­ poration without a separation of ownership and control. The legal rules that comprise corporate governance become critical mainly when there is a large number of diverse shareholders and a separation of ownership and control. Under such conditions, conflicts over control arise among the different parties, and legal rules become necessary to protect the rights and interests of each group and ensure that decisions serve the proper corporate objective. The main groups that exercise control in the publicly held corporation are shareholders, directors, and senior executives or officers. Corporate governance can be described, then, as the legal rules that govern the roles of these three groups in decision making and their corre­ sponding rights and duties.

The Shareholder Model of Corporate Governance In a capitalist economy, large business organizations or firms are legally structured, most often, as publicly held for-profit corporations. Businesses may also be organized as sole proprietorships, partnerships, closed corporations, and the like, and many organizations are not-for-profit. Although these other forms of organization are subject to governance rules, they do not commonly involve the significant conflicts over control that characterize the publicly held corporation, and, consequently, they need not be considered further. In a publicly held corporation, the group with control is the shareholders, which, because this group has control, leads to the objective of the firm being the maximization of shareholder wealth. The main moral question about corporate governance, then, is why shareholders, morally, should have control, and why, morally, their interests should be the objective of the firm. This right of control with its corresponding role for shareholders in a firm’s objective is often expressed as the doctrine of shareholder primacy. So the main moral

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question about corporate governance can be phrased as a need for the justification of shareholder primacy. Corporate governance includes more than the doctrine of shareholder primacy, but the answers to further ques­ tions about the processes and procedures of corporate governance – for example, the specific rights of share­ holders in exercising control – follow largely from the justification for shareholder primacy. In addition to the right to control, shareholders possess another defining right, namely a claim on the residual revenues or profits of a corporation. Many groups have a claim on a corporation’s revenues. These include bond­ holders, who have claims for interest and principal payments; employees, who have claims on revenues for payment of wages; suppliers, who have claims for the payment of materials; government, which has a claim for payment of taxes; and so on. Most of the income that a corporation generates from customers and other sources is paid out to a variety of groups that have fixed claims on a firm’s revenue stream. A fixed claim is one that a corporation is legally obligated to satisfy in the specified amount as long as the firm is solvent. A firm that cannot satisfy all fixed claims is, by definition, insolvent. Whatever revenues remain after all fixed claims are satis­ fied are residual revenues, and the shareholders’ right to these residual revenues constitutes residual claims. Every claim on a corporation’s revenues is a return for some resource that is contributed for production. Thus, share­ holders, who typically finance a corporation with equity capital – as opposed to the debt capital provided by bondholders – contribute a resource and accept, in return, the residual revenues or profits of the firm. Shareholders may be defined, then, as the group that has both the right of control and a claim on profits. The justification of the shareholder model or share­ holder primacy has two sources, which reach the same conclusion by different routes. One source is public pol­ icy, which asks, in this case, what form of governance best serves the good of society. The other source is the market, which reveals the form of governance that would result from voluntary market transactions. The first of these two sources reflects the facts that corporate governance is established in law by government through the processes of legislation, regulation, and adjudication, and that public policy is a major factor guiding these processes. In creat­ ing the body of law for corporate governance, one of government’s main concerns is to ensure that business organizations serve the public good; however, govern­ ment action may also aim to protect property rights, thus leading to the market as the second source of justification. Insofar as corporations are understood to result from private contracting among individuals in the exercise of their property right, then the contracting that forms a corporation may include the assignment of decision-making

rights. In this way, the rules of corporate governance result from individual’s market transactions. Corporate law, espe­ cially in Anglo-American countries, permits incorporators great latitude in choosing forms of organization. In the United States, in which corporate law is a function of individual states, incorporators may choose to incorporate in the state with the most advantageous system. Furthermore, much state corporate law is default legislation that applies unless incorporators contract differently. The amount of mandatory legislation that must be observed is relatively small. Consequently, in Anglo-American coun­ tries especially, the market is a major factor in determining the forms of corporate governance.

Public Policy Traditionally, the law on corporate governance has been guided by two conceptions of the corporation: one con­ ception as the private property of the owners of the enterprise and the other as a right granted or conceded by the state. This property rights theory has been more closely associated with Anglo-American companies, whereas the latter – sometimes called the concession theory – is more common in continental Europe. The property rights conception still fits sole proprietorships, partnerships, and closed corporations, in which the own­ ers of business exercise day-to-day control. However, the idea that shareholders are the owners of the modern publicly held corporations whose claims are based on property rights ended with the separation of ownership and control that was observed by Adolf A. Berle, Jr., and Gardiner C. Means in their famous 1932 book The Modern Corporation and Private Property. In this book, they argued that with the separation of ownership and control, share­ holders, who have ceased to exercise the responsibility associated with property rights, had forfeited their claim to control based traditionally on ownership. They wrote, The owners of passive property, by surrendering control and responsibility over the active property, have surren­ dered the right that the corporation be operated in their sole interest – they have released the community from the obligation to protect them to the full extent implied in the doctrine of strong property rights.

Without property rights as a basis for shareholder primacy, what else could justify the claim that shareholders ought to have control of a corporation? Berle argued that without strong shareholder control, corporate management would be effectively unconstrained, and that such power would be dangerous to the economic order. It would be unwise, in Berle’s judgment, for the law to release managers from a strict accountability to shareholders, not out of respect for their property rights (for they have none) but as a matter of sound public policy. He wrote,

Corporate Governance Unchecked by present legal balances, a social–economic absolutism of corporate administrators, even if benevo­ lent, might be unsafe; and in any case it hardly affords the soundest basis on which to construct the economic com­ monwealth which industrialism seems to require.

In short, shareholder primacy is justified, as a matter of public policy, to constrain and guide management. A more powerful public policy justification for the shareholder model of corporate governance can be con­ structed by determining which group can exercise control in such a way as to operate the firm most efficiently for maximum value or wealth creation. Efficiency is both an economic and a moral value because operating a business organization efficiently – which means producing the greatest amount of output for the least input – creates greater prosperity or material well-being than operating inefficiently. Other things being equal, we should prefer more rather than fewer material goods for any given resources, and corporations ought to be governed so as to achieve this end. Therefore, if one group can exercise ultimate decision-making power with greater efficiency and wealth creation than any other group, then on the basis of public policy that group ought to have control. Although this group may receive a considerable benefit from having control, its members provide a service that makes everyone in society better off. This public policy justification of shareholder primacy is completed by arguing that under most conditions, the financiers of a corporation – that is, the investors of equity capital – can exercise control in such a way as to achieve the greatest efficiency and wealth creation. Under some conditions, this can be done best by employees or by customers or suppliers, and as a result, some firms are employee owned or are customer or supplier coopera­ tives. However, corporations are more commonly controlled by financiers or investors, and justifiably so. The main reason for this greater efficiency and wealthcreating power stems from the shareholders’ role as resi­ dual risk bearers. Given that the shareholders’ return on their contribution to production, namely equity capital, is a claim on residual revenues, only they have an incentive that a firm be maximally profitable as opposed to merely solvent. Any group with a fixed claim has an interest only in a firm being solvent (and thus able to satisfy this group’s fixed claims). If employees, for instance, had control with only fixed claims for wages, they would tend to operate the firm with a low level of risk so as to ensure their wages, even though greater risk might lead to greater wealth creation. Because the greater wealth creation would accrue disproportio­ nately to other groups, especially shareholders, employees would be disinclined to take the risks that are socially desirable. Similarly, bondholders would pre­ fer that a firm be operated at a low level of risk to avoid

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jeopardizing their fixed claims for principal and interest payments because they, like employees, would derive little benefit from maximal wealth creation. Executives, too, would be suboptimally risk averse unless they were given incentives tied to profits, which is the rationale for compensating executives with performance-based bonuses and stock options. From the standpoint of public policy, decisions in a business organization should be made by the party or group with two features: the greatest amount of relevant knowledge and the strongest incentives to operate the firm for maximum efficiency or wealth creation. Although shareholders lack much of the knowledge necessary to operate a firm and, consequently, must rely on more knowledgeable directors to exercise general oversight and competent managers to exercise day-to-day control, they alone have the right incentives to operate a firm for maximum profitability. Moreover, the decisions that share­ holders make about selecting a board of directors and approving major structural changes, such as mergers and acquisitions, are matters about which shareholders are or can become knowledgeable. Perhaps the most important decisions that shareholders make are to buy and sell stock, thereby setting a price for a company’s shares that constitutes an up-to-the-minute evaluation of a company’s performance and prospects. In practice, shareholders make very few decisions, but their central role in corporate governance derives from the knowledge and, more impor­ tant, the incentives they have to make some of the most critical decisions in the operation of a corporation. The Market In their role as financiers or investors, shareholders pro­ vide one resource needed by a business organization, namely capital. In return, they receive a payment or claim on revenues, specifically the residual revenues or profits of the firm. In this respect, shareholders are little different from other input providers, which include bond­ holders, employees, suppliers, and so on: They provide some resource and receive a payment in return. All these groups contract with a firm so that the firm itself may be viewed as a nexus of all the contracts so formed. Insofar as the return for the provision of any input is insecure, a contract is necessary to safeguard the return. In this nexus-of-contracts view, a firm ‘buys’ capital in the same way it buys labor or materials, and such a purchase is an economic transaction that takes place in a capital market, in the same way that a firm buys labor in a labor market and materials in a commodities market. Accordingly, corporate governance may be understood as the contract that a firm forms with its shareholders, who finance the firm by providing equity capital. The terms of this contract are determined, in large part, in a market through a process of negotiation by firms seeking

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capital and investors seeking to deploy their savings, with each party seeking the best deal for itself. From a moral standpoint, any agreement or contract that is formed by mutual consent between firms and investors is justified in the same way that the outcome of any market exchange is justified. The crucial task in justifying the role of shareholders in corporate govern­ ance is to understand why shareholder primacy would result from contracting between a firm and its financiers or investors. In particular, why would investors providing equity capital not only do so in return for residual reven­ ues or profits but also insist on obtaining control? Alternatively, why would a firm seeking capital offer control rights in addition to a claim on residual revenues? The answer lies in the role of shareholders as residual risk bearers. Equity capital is different from debt capital, which is obtained in loans from banks or in bonds sold to bondholders. First, equity capital is provided for the life of a firm with no provision for its return, unlike the fixed term of a loan or a bond. Second, equity capital has no fixed return, such as the specified interest on a loan or bond; rather, the return is the profits of a firm, which are variable and may even be negative. By accepting a return in the form of a claim on residual revenues, shareholders become residual risk bearers, which is a service that protects the fixed claims of other groups. Because share­ holders do not need to be paid if there are no residual revenues, a firm can suffer a loss without becoming insolvent and incurring the risk of being forced into bank­ ruptcy. By serving as residual risk bearers, shareholders thus make the fixed claims of other groups more secure. Shareholders are compensated for this service by the prospect of higher returns when a firm is profitable. The role of residual risk bearer creates special contracting problems for shareholders. The fixed claims of other groups – of employees for wages, for example, or suppliers for payments – are relatively easy to express in legally enforceable contracts. By contrast, the profitability of a firm, on which the payment to shareholders depends, cannot be mandated in a contract. In a firm without a separation of ownership and control – that is, in a firm in which shareholders operate the business – there is no problem protecting the shareholders’ return. However, once shareholders leave the task of operating a firm to professional managers, a problem arises regarding how shareholders can be assured that these managers will operate the firm for maximum profitability. The solution to this problem is for shareholders to accept the role of residual risk bearer only on the condition that they also have control. The roles of residual risk bearer and holder of control rights are conceptually distinct. In theory, these roles could be held by different groups. In practice, how­ ever, no investor is willing to become a residual risk bearer without having control. Without control rights, an investor would insist on significantly higher returns

to compensate for the greater risk, with the result that the cost of capital for firms would greatly increase. Alternatively, firms can lower their capital costs by offer­ ing control rights as well as claims on profits when they seek capital from investors. Combining risk bearing and control in the share­ holders’ role is not a complete solution to the contracting problem, however. Shareholders cannot merely order managers to operate a firm for maximum profit because what managers need to do to make a firm maximally profitable is complex and uncertain. The best shareholders can do is ask managers to exert their best effort to be profitable. This is commonly done not only by aligning managers’ interests with those of shareholders by means of bonuses and stock option but also by imposing a fiduciary duty on managers to act in all matters in the shareholders’ interests. A fiduciary duty generally is a strong, open-ended obligation to exercise loyalty, candor, and care in the service of another party whose interests the fiduciary is pledged to serve. The fiduciary duty of directors and officers is a major feature of the law of corporate governance that is designed to overcome the fact that shareholders cannot bind persons by explicit contracts that fully specify the conduct to be performed. That the fiduciary duty of management flows mainly to shareholders is often thought to privilege shareholders in some way, but it should be understood that only share­ holders benefit from being the beneficiary of managers’ fiduciary duty as a solution to their distinctive contracting problem with a firm. All other groups are better protected by other contractual means. This provides a partial explanation of why residual risk bearers would seek control, namely to protect their at-risk return for providing equity capital. Although assuming residual risk and the right of control has a cost, the benefit to shareholders for incurring this cost is greater than the benefit for any other group with only fixed claims, which can protect their claims more effec­ tively and economically by other contracting means. In short, control is worth more to residual risk bearers than to any other group, and so they are willing to pay more for it. A more complete explanation, however, is that share­ holders are able to bear the costs of residual risk bearing more economically than other groups, which reduces the cost overall. First, shareholders as equity capital providers are better able than employees, customers, suppliers, or other groups to diversify their investments in a firm. One reason why employee-owned firms, for example, are rela­ tively rare is that an employee’s whole wealth becomes tied up in the company, thus increasing that person’s overall level of risk. Second, an active market for corpo­ rate control ensures that if any group can operate a firm at lower cost or with greater efficiency or wealth creation than the current shareholders, they will do so. Like any good in a market, corporate control will be obtained

Corporate Governance

though Pareto-superior transactions by the party to whom it is worth the most, which will be the party that can operate a corporation for maximal wealth creation. In summary, corporate governance is the contract between shareholders and a firm that confers control rights on the shareholders in order to protect the claim to residual revenues that they receive as a return for providing equity capital to a firm. Unlike the contract that other input providers form, this contract is unu­ sually complex due to the special contracting problems in the relationship between shareholders and the firm. Although the terms of this contract are, to some extent, specified by law, corporations still have great flexibility to negotiate with investors in a market, and the law reflects the terms that would result from market negotiations. Thus, the law of corporate governance is determined by both public policy and the market and is justified on both grounds – that it best serves society and is the result of voluntary market transactions.

The Role of Directors and the Chief Executive Officer Although shareholders may have ultimate control of cor­ porations in accord with the shareholder model, the main locus of decision making in corporations is in director boardrooms and executive suites. Accordingly, the law of corporate governance must focus not solely on the role of shareholders but also on the roles and functions of direc­ tors and the chief officers, especially the chief executive officer (CEO). Given the scope and complexity of deci­ sion making by all the parties involved and the potential for conflicts among them, corporate governance must be defined more broadly than merely the contract between shareholders and the firm to include the relationships among shareholders, directors, and officers or senior executives, as well as with various stakeholders. It is also in these aspects of corporate governance that differences among national systems are most pronounced. Although the shareholder model of corporate governance may be characteristic of all capitalist firms, it differs from country to country mainly in the relative authority and power of the many groups involved in corporate decision making. The Role, Function, and Structure of Boards In a typical publicly held corporation, the shareholders elect a board of directors to effectively exercise control with a fiduciary duty on the part of directors to act in all matters in the interests of shareholders and the corpora­ tion. (In theory, the interests of shareholders and of the corporation are identical, but they may diverge in some instances, which creates difficult dilemmas for board members.) In a small company with only a few

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shareholders, the board may include all shareholders, but in a large corporation with a large number of share­ holders, each with small holdings, this is impractical. Thus, shareholders, of necessity, delegate the task of operating a business enterprise to professional directors and managers, who can do the job much better than they. The task of these professionals is, nevertheless, to oper­ ate the firm in the way the shareholders would themselves, with only a few decisions reserved for a shareholder vote. Because these three groups possess different information and have different incentives, a critical question of corporate governance is which deci­ sions are allotted to each group. Also, because the incentives of directors and managers are never perfectly aligned with those of shareholders, a further question is how to ensure that the decisions they make are in the shareholders’ interest – that is, are maximally efficient and hence wealth maximizing. Although the CEO and some other top officers or insiders are commonly directors, often with the CEO as the chair (known as CEO duality), boards also include outside or independent directors who have no relation­ ship with the corporation other than membership on the board. Boards of directors and, in particular, the indepen­ dent members serve four main functions. First and most important, they exercise control by selecting, monitoring, compensating, and, if necessary, replacing the CEO and the top management team; approving the overall strategy and the major policies and procedures of the corporation; determining how the corporation’s activities are financed; evaluating major restructurings, such as mergers, acquisi­ tions, and divestitures; and making recommendations on these and other matters that are submitted for a share­ holder vote. Second, boards of directors provide a service as decision makers with considerable knowledge and experience who can advise the CEO and make indepen­ dent decisions. Third, board members, who are often CEOs of other firms and usually have extended networks, expand the resources available to a corporation. Among these resources may be finance (access to institutions and markets that can provide funding), technology (access to research that may be a source of innovation), and regula­ tion (access to legislatures, industry organizations, and regulatory bodies). Fourth, boards of directors, which include many distinguished and trusted individuals, pro­ vide the level of confidence that is necessary to assure all the parties that deal with a corporation. This confidencecreating or assurance function is especially important insofar as other groups besides shareholders make firmspecific investments that could be exploited in the pursuit of the shareholders’ interests. These four functions are not wholly compatible with each other because, for example, a board that closely monitors a CEO may not develop the rapport necessary to serve as a trusted advisor. Also, a director who is selected primarily because of reputation

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to increase confidence may not be knowledgeable about the company or industry. In most countries, there is a single or unitary corporate board with both inside and outside directors. Several continental European countries, including Germany, France, Austria, and The Netherlands, have a dualboard structure. This structure involves a supervisory board composed mostly of outsiders, which exercises general oversight, and a managerial board of insiders that oversees day-to-day operations. In Germany, the supervisory board includes directors selected by share­ holders and employee representatives, whose role is part of the German system of co-determination or Mitbestimmung, in which employees have decision-making power at the shop level and the board level. Japanese corporations have a unitary board of mostly insiders, including representatives of other firms in a company’s circle of partners or keiretsu. These national differences are due, in large measure, to the patterns of shareholding in each country. The Anglo-American corporation typi­ cally has a large base of diversified, uninvolved investors with small holdings, whereas in continental Europe, com­ panies are commonly owned by a few large institutions that exert close control. Japanese corporations are char­ acterized by extensive cross-holding of shares by partners in the keiretsu, including a main bank, with few individual shareholders. The power of independent directors stands in sharp contrast to their knowledge and incentives. In the United States, much of an independent director’s knowledge is about general management of business rather than the specifics of the company in question, and some directors may be chosen to fulfill a specific function and thus lack broad expertise. In addition, independent directors gen­ erally hold little, if any, stock or have any other material interests in the company; many independent directors are CEOs of other companies and serve as director on a number of boards; and board business is usually con­ ducted in 8 or 10 meetings a year, thus making the job of director part-time. The main incentives for indepen­ dent directors are not monetary but consist mostly of their reputation and prospects for continued board service, as well as a legally imposed fiduciary duty. For these reasons, the decisions made by boards, especially in the United States, are limited to oversight of very general matters in which generic management and industry knowledge are crucial, whereas decisions about operational details that require company-specific knowledge are left to manage­ ment. Much of the emphasis on share price in the United States can be explained by the fact that shareholders and directors can evaluate board performance by this mea­ sure. In theory, the continental European and Japanese systems, with a preponderance of insiders, should produce superior decision making because of the factors of know­ ledge and incentives. However, the Anglo-American

system may still be superior, in practice, because it allows for capital to be sourced from a larger investing public.

The Role of the CEO in Corporate Governance In corporate governance, the CEO and other top execu­ tives are more the subjects of governance rather than actors. Much of corporate governance is intended to ensure that those who effectively exercise control do so in the shareholders’ interest. However, as a board member and often the chair of the board, the CEO makes many of the most important decisions in a corporation and thus effectively governs it. CEOs also have considerable influ­ ence in the selection and retention of board members so that, to some extent, they are responsible only to them­ selves. CEOs typically have the greatest amount of knowledge of any participant in corporate governance and so properly should make many decisions. The main problem concerning CEOs addressed by corporate governance is how to ensure that CEOs and other top executives have the correct incentives. This is achieved by four main means. First, like directors, officers of a corporation have a legally imposed fiduciary duty to act in all matters in the shareholders’ interest. Although this duty is legally enforceable in that officers and direc­ tors can be sued for breaches, both are protected by the business judgment rule that exempts them from suits for good faith business decisions. Moreover, successful suits for breach of fiduciary duty are generally limited to egregious acts of incompetence or self-dealing so that fiduciary duty provides a relatively weak incentive for strong performance. Second, executives’ interests can be effectively aligned with those of shareholders by a substantial ownership interest or performance-based compensation through bonuses and/or stock options. In this way, CEOs act more like shareholders because they, in fact, become significant shareholders themselves and not merely hired professional managers. Indeed, man­ agers with an ownership stake may have a greater incentive than shareholders to operate a firm profitably because their investment is less diversified than that of shareholders. Third, a competitive labor market for CEOs and other executive positions places a premium on a manager’s success in his or her current job. Even if it is relatively rare for an executive to hold multiple CEO positions, a CEO has a strong incentive to avoid dismissal, and new CEOs are drawn from the ranks of aspiring executives who have incentives to excel. Fourth, an active market for corporate control serves to discipline underperforming or self-serving management by the threat of a takeover. Although hostile takeovers are relatively rare in Europe and Japan and increasingly more difficult to wage in the United States, greater pressure by institutional investors has been successful, in many instances, in

Corporate Governance

producing the same kind of change that a hostile takeover would achieve.

Problems with the Shareholder Model The justification of the shareholder model and, along with it, the justification of the roles of shareholders, directors, and executives or officers has encountered a number of critical problems in recent years. On the practical level, many corporate scandals, such as the collapse of Enron, WorldCom, and other companies in the early 2000s, and the financial crisis beginning in 2008 have been blamed on failures in corporate governance. These events have led to many proposals for reform, including the passage of the U.S. Sarbanes–Oxley Act in 2002, which mandates, among other things, some changes in the composition and opera­ tion of boards of directors. Other concerns, such as high executive compensation, have prompted proposals to increase shareholder voice in the nomination and election procedures for directors. On the theoretical level, some of the fundamental assumptions of the shareholder model have been chal­ lenged by a transformation in corporations worldwide. Traditional corporate governance is focused almost exclusively on the role of the financiers of a corporation. The interests of other groups are neglected in corporate governance not because they are not important and deser­ ving of protection but, rather, because they are addressed by other means. This narrow focus of corporate govern­ ance is commonly justified by three assumptions that have held true until now. However, changes in the strategy and structure of corporations bring these assumptions into question. The first of these assumptions is that only shareholders bear residual risk. All other groups that contract with a firm do so for fixed claims – that is, for claims of fixed amounts that can be secured by complete, legally enforce­ able contracts. Thus, their claims are properly handled by contract law, not the law of corporate governance, which is uniquely designed to protect residual risk bearers. A second assumption is that only shareholders are affected by corporate decision making. The returns of all other groups that contract with a corporation are determined by the market prices for their inputs in the appropriate market for labor, commodities, products, and so on. These prices depend on market forces such as supply and demand, and they are unaffected by corporate deci­ sions. As long as a firm remains solvent, these claims will be honored, whereas the returns to shareholders, who have residual claims, are directly affected by corporate decisions, thus justifying their control of the corporate decision-making process. The third assumption of tradi­ tional corporate governance is that only explicit contracts form the basis of each group’s claim on corporate

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revenues. Thus, any implicit claims that a corporation may make with employees or other groups are informal matters of trust that fall outside the sphere of corporate governance. Significant changes have occurred in recent years that bring these assumptions into question. The traditional corporation, for which the prevailing systems of corporate governance have been devised, has sought to employ large fixed capital assets and realize economies of scale to reduce prices and capture market share. In such a firm, obtaining large amounts of capital at low cost is critical, and the control over other inputs, including labor, is secured by vertical integration and hierarchical command structures. Because of the high demand for capital and the high level of risk involved, it is necessary for the traditional corporation to seek outside investors and offer them control in return for their investment. Since the early 1970s, however, corporations have been forced to change from such an asset-intensive strategy that exploits economies of scale to strategies that focus on gaining the benefits of innovation, quality improvements, and globalization. New and better products, made and marketed globally, are now the keys to success instead of cheaper, more abundant, domestically made products. As a consequence, the structures of many corporations have changed from large conglomerates to small, more nimble firms; from rigid hierarchical companies to looser, flattened ones; and from vertically integrated firms to more flexible, open forms of collaborative networks. Corporations have changed their strategies and struc­ tures in recent years so that fixed tangible assets have become less important than people’s skills and knowledge. Because human capital has become more important than financial capital, corporations must focus less on their financiers and more on their truly productive assets – which are not only their own employees on the inside but also individuals and organizations outside a firm. In the process, relationships rather than transactions have become the ultimate source of organizational wealth. Under these conditions, employees and other groups become residual risk bearers because they must be induced to make firm-specific investments in order to engage in innovation and make quality improvements. Also, because these firm-specific investments could be expropriated by shareholders, these providers of human capital have a need for more protection from this possi­ bility. These non-shareholder constituencies are also more affected by corporate decisions because their return is dependent on firm performance and not merely on the price of their input in the market. Finally, it is implicit contracts that bind together a relationship-based network rather than the explicit contracts of a vertically inte­ grated, hierarchical traditional corporation. These changes in strategy and structure challenge the three critical assumptions underlying the justification of

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the shareholder model and, with it, the current systems of corporate governance. This challenge suggests that not only does the traditional allocation of decision-making rights in corporations need to be altered but also corpo­ rate governance must expand its focus from the financiers of corporations to all groups that make investments in a firm and are responsible for creating wealth. In particular, it should be the task of corporate governance to provide the conditions in which all groups can make firm-specific investments with the assurance that they will share equi­ tably in the wealth created. Although the problems with the shareholder model are evident, it is not clear what reforms are needed for corporate governance to fulfill this task. Thus, the systems of corporate governance are still evolving in ways yet to be realized. See also: Corporate Responsibility; Corporations, Ethics in; Executive Compensation; Socially Responsible Investment.

Further Reading Bainbridge SM (2008) The New Corporate Governance in Theory and Practice. New York: Oxford University Press. Berle AA and Means GC (1932) The Modern Corporation and Private Property. New York: Harcourt, Brace & World. Blair MM (1995) Ownership and Control: Rethinking Corporate Governance for the Twentieth Century. Washington, DC: Brookings Institution. Blair MM and Stout LA (1999) A team production theory of corporate law. Virginia Law Review 85: 247–328. Coase RH (1937) The nature of the firm. Economica N.S., 3: 1–44. Easterbrook FH and Fischel DR (1991) The Economic Structure of Corporate Law. Cambridge, MA: Harvard University Press. Hansmann H (1996) The Ownership of Enterprise. Cambridge, MA: Harvard University Press. Jensen MC and Meckling WH (1976) Theory of the firm: Managerial behavior, agency costs, and ownership structure. Journal of Financial Economics 3: 305–360. Macey JR (1991) An economic analysis of the various rationales for making shareholders the exclusive beneficiaries of corporate fiduciary duties. Stetson Law Review 21: 23–44. Macey JR (2008) Corporate Governance: Promises Kept, Promises Broken. Princeton, NJ: Princeton University Press. Roe MH (2003) Political Determinants of Corporate Governance: Political Context, Corporate Impact. Cambridge, MA: Harvard Law School. Romano R (ed.) (1993) Foundations of Corporate Law. New York: Foundation Press. Shleifer A and Vishny RW (1997) A survey of corporate governance. Journal of Finance 52: 737–783.

Williamson O (1984) Corporate governance. Yale Law Journal 93: 1197–1230.

Relevant Websites http://www.corpgov.net – Corporate Governance NETwork. http://www.ecgi.org – European Corporate Governance Institute. http://blogs.law.harvard.edu/corpgov – The Harvard Law School Forum on Corporate Governance and Financial Regulation. http://www.jcgf.org – Japan Corporate Governance Forum. http://www.oecd.org/topic/ 0,3373,en_2649_37439_1_1_1_1_37439,00.html – Organisation for Economic Co-operation and Development; corporate governance. http://www.lerner.udel.edu/centers/ccg – University of Delaware, John L. Weinberg Center for Corporate Governance. http://en.wikipedia.org/wiki/Board_of_directors – Wikipedia; definition of board of directors. http://en.wikipedia.org/wiki/Corporate_governance – Wikipedia; definition of corporate governance. http://www.gcgf.org – The World Bank, Global Corporate Governance Forum. http://millstein.som.yale.edu – Yale School of Management, Millstein Center for Corporate Governance and Performance.

Biographical Sketch John R. Boatright is the Raymond C. Baumhart, S.J., Professor of Business Ethics in the Graduate School of Business at Loyola University Chicago. He has served as Executive Director of the Society for Business Ethics and is a past president of the Society. He is the author of the books Ethics and the Conduct of Business and Ethics in Finance. He has contributed chapters to many books and has published widely in major journals, including Academy of Management Review, Journal of Banking and Finance, Business Ethics Quarterly, Journal of Business Ethics, Business and Society Review, American Business Law Journal, and Business and Professional Ethics Journal. He serves on the editorial boards of Business Ethics Quarterly, Journal of Business Ethics, and Business and Society Review. His research focuses on ethical issues in finance and corporate governance. He received his Ph.D. in philosophy from the University of Chicago.

Corporate Responsibility L J Brooks, University of Toronto, Toronto, ON, Canada

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Celia Wells, volume 1, pp 653–660, ª 1998, Elsevier Inc.

Glossary AA1000 assurance standard The sustainability audit procedures and techniques recommended by AccountAbility. Activist stakeholders Those prepared to take actions directly or indirectly (such as through the media) affecting corporations that are affecting those stakeholder’s interests. California effect The impact of ideas, such as those related to control of harmful environmental practices or promotion of good environmental practices (i.e., automobile pollution control or green energy subsidies) and liberal human rights policies, that later became popular in other parts of the United States and around the world. Corporate citizenship The values or programs that a corporation is to be known for. Corporate responsibility (CR) The degree to which corporations respect the interests of their stakeholders and reflect this respect in their actions and accountability to their stakeholders. This respect involves both returns to shareholders and attention to the interest of non-shareholder stakeholders. Corporate social contract The expectations for corporate performance by society and vice versa. Corporate social performance (CSP) Plans, strategies, and activities deemed by the corporation and others to satisfy a corporation’s responsibilities to society and/or its impacts on society. Corporate social responsibility (CSR) Similar to CR above, but CSR usually focuses on activities related to

What Does Corporate Responsibility Mean? Corporate responsibility (CR) is a concept that has con­ tinued to evolve since the creation of the corporate form in the early 1800s. The evolution has seen a steady increase in the number of groups or stakeholders to whom corporations are accountable, and a concurrent expansion of the nature of that accountability. Consequently the CR evolution can be interpreted as a continuing increase in the degree to which corporations

satisfying the interests of stakeholders other than shareholders, although the interests of shareholders can be satisfied indirectly if stakeholders support the company. Environmentalists Stakeholders whose interest in a corporation related to its impacts on the environment. They may be activist stakeholders. Ethical consumers Those interested in purchasing goods or services from corporations that operate in an ethical manner according to ethical principles. Ethical investors These are interested in investing in corporations that operate in an ethical manner according to ethical principles. Great Depression A financial disaster caused by inflated stock prices in 1929, which lasted until World War II began in 1939 and required massive government spending to remedy. GRI sustainability reporting framework The disclosure of a corporation’s sustainability performance factors in the form and format described in the G3 GRI Guidelines. Socially responsible investing (SRI) Investing in corporate securities based upon an assessment of the ethicality or social responsibility of the corporation’s activities. Subprime lending crisis This resulted from the collapse of the U.S. housing price bubble in 2009 that resulted from extraordinarily low cost and unethical mortgage practices and led to a worldwide credit crisis, a depression, and a worldwide bail-out of the financial community by governments.

respect the interests of their stakeholders, and reflect this respect in their actions and accountability to their stakeholders. In its earliest stages, a corporation was principally legally responsible to its owner, or to its shareholders if ownership was fragmented and evidenced by shares. There were few laws restricting corporate activity because it was presumed that the owners lived in the community and would not degrade it. As shareholders grew in number and geographic diversity, increasingly restrictive regulation has been created to enforce

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646 Corporate Responsibility

corporate accountability in the interests of specific groups within society, and to society as a whole. While this early regime of compliance accountability continues, beginning in the 1950s corporations began to see increasing value in voluntarily considering the interests of non-shareholder stakeholders in their stra­ tegic planning and decision making. Although the motivation for this change was altruistic for some, for others it was because they realized the significant posi­ tive or negative impacts that non-shareholders could have on the achievement of a corporation’s strategic objectives. This recognition was evident in the defini­ tion of stakeholders by RE Freeman: ‘‘A stakeholder is anyone who is affected by or can affect the objectives of the organization’’ (1984: 25). In fact, these impacts have generated a need to continually justify specific corporate activities and corporations, so much so that the relationship of expectations between corporation and society has come to be known as the corporate social contract. Over six decades later, it is now appar­ ent that the potential impact of non-shareholder stakeholders is so significant that it is wise for corporate directors to consider themselves and their corporation to be accountable legally to shareholders and strategi­ cally to their other stakeholders. The move toward voluntary accountability has meant that CR has migrated from a core based on complianceoriented, financial accountability to shareholders to embrace additional accountability on environmental and social impacts, and on issues relevant to specific stake­ holder groups. The form of these disclosures has also broadened beyond traditional financial statements to a wide variety of quantitative and qualitative reports. Some have become mandatory. Environmental impact reports, for example, have been mandatory in parts of Europe since the 1990s. In much of the world, CR reports are still voluntary, but interest has been so great that Corporate Social Responsibility (CSR) reports have become the norm in many industries, and efforts are being made to produce disclosure frameworks and metrics to assist with measure­ ment, content, and comparability problems. The omnibus reporting framework for economic, environmental, and social impacts, the GRI G3 Guidelines and the ISO 26000 Guidance on Social Responsibility are examples of this development. The focus on Corporate Social Performance (CSP) has become so intense that several organizations provide ratings of that performance to assist investors, consumers, and per­ sonnel in choosing which corporations to support based on their perceived ethicality. The influence of these ethical investors, ethical consumers, or ethically sensitive employ­ ees has been growing and is too important for corporate directors to wisely ignore. In response, some corporations have been arranging for their reports to be audited to add

credibility. In addition, they have added specific steps and structural responsibility to ensure that CR issues are fully considered and integrated into their activities. There is no doubt that the newly emerged face of CR will continue to change. As it does, challenges will grow, and the governance, motivation, accountabilities, and boundaries of corporations will continue to change to reflect a blend of the interests of all stakeholders. One of the more recent developments is the CR sister concept of corporate citizenship, which has to do with the roles corporations can play as a citizen within society. Although corporate citizenship issues are very closely aligned to CR issues, some executives, directors, and business people are more comfortable with the citizenship image than the ethically charged CR image. For purposes of this discussion of CR, corporate citizenship develop­ ments should be regarded as usually applicable to CR challenges.

Challenges and Unresolved Issues CR will continue to develop and change as challenges and unresolved issues are dealt with. For example, better CR measurement and disclosure will proceed when measure­ ment techniques are identified and performance models clarify what is worth measuring, and how it is to be disclosed. Secondly, the whole-hearted acceptance of CR depends upon the outcome of debates over the profit-only focus advocated for corporations as opposed to what can be called the blended-stakeholder satisfaction focus to which modern CR leads. Many directors and executives continue to believe in the profit-only focus possibly because they believe profit will fall if attention is diverted. In this regard, they adhere to the ideas of the noted economist, Milton Freidman, who wrote in 1970 that: In a free-enterprise, private property system a corporate executive . . . has [the] responsibility to make as much money as possible while conforming to the basic rules of society, both . . . in law and in ethical custom. [This is] the appropriate way to determine the allocation of scarce resources to alternative uses (pp. 32–33).

However, growing numbers of observers have come to believe that taking stakeholder interests into account will lead to greater support by those stakeholders and therefore greater likelihood of achieving the strategic goals of the company, including those related to profit. These blendedstakeholder advocates believe that a win–win situation should result. Moreover, it has also been recognized that profit is an incomplete measure of corporate impacts on society since externalities are not usually included. For example, externalities such as the pollution caused by a corporation, where the cost is born by others downstream

Corporate Responsibility

or downwind, are not included in the polluting corporation’s profit, nor would the benefits created by donations to charity or in scholarships. The point is that profit is not a perfect measure of corporate contribution, impact or performance. Consequently, it would seem that success in the continuous debate over corporate legitimacy will depend ultimately on how well a corporation satisfies the interests of a broad range of stakeholders and medium- and longer-term shareholders rather than just the short-term profit interests of current shareholders. One of the unresolved issues in leaving the profit-only or maximization of profit objective for corporate decision making is how to balance off the stakeholder interests and how to prioritize those interests in order to make appro­ priate decisions. Guidance is available in discovering those interests and in identifying their salience, based upon the relative inherent urgency and legitimacy of the claims, and the relative power of the stakeholders that hold them. But priority setting and the resolution of conflicting claims remains subjective and less likely to be optimized than appears to be available under the profit-only regime. Further research is needed to sort this out, but the choice now facing directors is whether to be precisely but possibly misdirected by a profit-only focus if they do not take adequate account of stakeholder interests. Leaving aside the process of decision making itself, it is noteworthy that some observers take the view that the only corporate decisions or actions that should be considered to the ethical credit of a corporation are those that are taken voluntarily, not those that are forced by compliance with laws or regulations. Fortunately this does not seem to be the emerging consensus. If it were, corporate performance would appear to be perniciously reduced by increases in regulatory requirements. Recent attempts to create reporting frame­ works, like the GRI guidelines, are providing a comprehensive CR reporting platform that includes volun­ tary as well as required actions.

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A Historical Perspective Under the auspices of the Centre for Ethical Business Cultures, Dr. Kenneth Goodpaster is leading a group of distinguished scholars, including Archie Carroll, Kenneth J. Lipartito, James E. Post, and Patricia H. Werhane, whose aim is to research and write U.S. and global histories of corporate responsibility. Although their target publication date is mid-2011, in an interim report to the Society of Business Ethics in August 2009, this group revealed the tentative chapter struc­ ture reproduced below for the U.S. CR history (Table 1). Corporate justification has been under constant scru­ tiny throughout the periods covered. Two concerns have recurred: 1. Whether the corporate mandate is legitimate; 2. Whether specific actions by corporations meet the expectations of stakeholders. The corporate mandate – historically to maximize profit and by so doing provide jobs – has been challenged in periods of troubled economic times because unbridled, excessive greed and/or unethical actions provided evi­ dence of the inability of corporations to govern themselves appropriately, and/or because corporations were not able to deliver profits and jobs. Massive government spending was needed to bail out corporations and restore the economy, employment, and profits. The (1) Stock Market Crash of 1929 followed by the Great Depression, (2) Enron and other scandals in 2001–2002, and (3) the Subprime Lending crisis in 2008–2009 have all triggered increased regulation and tighter governance rules. But although the basic capitalist corporate mandate – so instrumental in economic growth – continues, the public now has a jaded view of the corporation’s ability for ethical self-governance, and is more sensitized to corporate mis­ behavior than ever before.

Table 1 Tentative chapter structure for U.S. CR history Tentative chapter titles

Time interval

Content

1. Overview 2. The rise of the corporation

Stage setting Adam Smith to 1880 1880–1929 1929–1945

‘‘The Big Story’’ and key variables Deep historical background

1945–1960 1960–1973 1973–1980

Postwar business and cold war POLITICS CSR development and justice movements: Racial, gender, workers, consumers, environment Regulation and business ethics

1980–1988 1988–2001 2001–2010

The Reagan era: Markets, stakeholders, and ethics The fall of the Berlin Wall to 9/11: CSR goes global From Enron scandals to the current financial crisis

3. The growth of the corporation 4. The corporation and national crisis 5. Corporate legitimacy affirmed 6. Corporate legitimacy challenged 7. Turbulence among business frameworks 8. Ideological conflict 9. Capitalism globalizes 10. Today and beyond: A new social contract

Modern historical background Great Depression through WWII

648 Corporate Responsibility

In partial response, corporations, largely since 1960, have been paying increasing attention to issues raised by interested stakeholders and stakeholder groups such as the equitable treatment of workers, their safety and well-being, fair treatment of consumers, and the stewardship of the environment. The more pervasive of these issues have been promoted successfully by powerful, media savvy, activist stakeholders such as Greenpeace, which have engaged the public with the assistance of the media, or have gained prominence by shocking events, or have been motivated by both strong activist stakeholders and shock­ ing events. To some extent corporations have been motivated by altruism to consider and act on stakeholder interests, but by far the dominant motivation has been to react to or satisfy stakeholder interests in an attempt to garner stakeholder support or mitigate stakeholder con­ cerns, recognizing that such support is essential to achievement of corporate strategic objectives. It is also evident that corporations that interact directly with active stakeholder groups have been much more responsive than those that are one or more steps removed, such as a whole­ saler. To some degree, of course, the corporate response to stakeholder issues influences the argument over the corpo­ rate mandate and the ability of corporations to be responsibly self-governing. From an overall perspective, the concern for stakeholder interests has raised questions about the nature of corporate activity – about how ethically profit is made – and is shifting the emphasis away from just focusing on how much profit is made. A variant of the direct pressure phenomenon is known as the California effect, which refers to the pressure of envir­ onmental and other socially protective regulations enacted first in California on corporations operating within that state. California’s leading regulations promoting clean auto­ mobile exhaust and better fuel consumption, for example, have been copied in other jurisdictions and are considered useful target benchmarks for sound corporate strategy set­ ting and action by corporations around the world. Many corporations have developed programs to provide guidance to employees, suppliers, and other agents about how to take account of stakeholder inter­ ests and integrate them into strategies and daily activities. These programs are often referred to as: protection; • Environmental program; • Sustainability and safety program; • Health program (code of conduct, broad guidelines); • Ethics support; • Community • Charitable support. Such programs commonly include a champion to provide leadership, a planning and implementation mechanism, guidance documents and training, annual sign-off commit­ ments, a budget, reporting and assessment mechanisms, and the support of senior officers. Indeed the attitude and

active support of senior officers is so important that pro­ spective and appointed CEOs and CFOs are now screened to ensure that they provide appropriate ‘‘tone at the top’’ partly to ensure that the financial disasters that befell Enron, WorldCom, Tyco, Adelphia, Sunbeam, and many other corporations are avoided. Results are monitored and taken into account for pay and promotion decisions, as well as discipline and dismissal. It is well understood that the reputation of the corporation and of its products and employees can easily be lost. Unethical actions can result in: boycotts or shifting to the products of more • Consumer ethical suppliers; to hire or retain the best and brightest • Inability employees; Activist stakeholder actions to interrupt supply, and • poison media and consumer relations; Pollution, to lawsuits; • Governmentleading constraints, regulation, or noncooperation; • Crises that undermine corporate • ability to reach strategic objectives.reputation and the Not surprisingly corporations are incorporating ethics risks into their governance processes and their risk assess­ ment and management programs. Corporations have also developed disclosure formats to tell their CR story, to inform stakeholders about their CR activities, to encourage their support, and to develop an ethically responsible profile that could provide a repu­ tational cushion in the event of a CR mishap. This would give much needed tolerance, remediation time, or con­ fidence that the corporation will do the right thing. Other organizations have also been developing CR disclosure formats to shape and encourage corporate disclosures and to facilitate comparison of corporate performance. The most comprehensive CR disclosure framework is the Global Reporting Initiative Sustainability Framework and its G3 Guidelines. The GRI is a collaborative center of the UN Environment Programme and the GRI Guidelines have synergies with the UN Global Compact and the Earth Charter Initiative. The G3 Guidelines have been developed by a cross-sectional group of stakeholders including large corporations and professional accounting associations, and deal with many of the aspects necessary to the production of a highquality, comparable CR information, including: thresholds for disclosure; • Materiality Inclusiveness stakeholders and their interests; • Sustainability ofperformance and projections context; • Completeness; • Report quality factors; • Reporting impact boundary definition; • Corporate profile development including key impacts, • risks, and opportunities faced.

Corporate Responsibility

Currently the G3 Guidelines call for disclosure of the management approach to the following issue areas, as well as related governance arrangements, commitments, and engagements and performance indicators:

• Economic; • Environmental; practices and decent work; • Labor Human • Society; rights; • Product responsibility. • A summary of the Contents of the GRI Sustainability Reporting Framework G3 Guidelines is reproduced in the Table 2: While some companies use CR reporting as window dressing to convey a one-sided best view of their activities, others are serious and want their reports to be checked, certified, or audited. The GRI has a check­ ing service, and various professional organizations including professional auditing firms offer CR planning, disclosure preparation, and audit services. There has also been an assurance standard developed by AccountAbility to guide companies and those who are auditing or providing assurance on sustainability disclo­ sures. The Assurance Standard is designed to complement the GRI Reporting Guidelines and other standardized or company-specific approaches to disclosure. To comply with the Assurance Standard, reports on a corporation’s sustainability performance and the underpinning systems must adhere to an inclusivity accountability commitment for its social, environmental, and economic performance and impacts, to respond to stakeholder interests in its policies and practices, and to account to stakeholders for its decisions action and impacts. In addition, sustainability reports must adhere to three principles:

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1. Materiality – sufficient data for stakeholders to make informed judgements, decisions and actions. 2. Completeness – sufficient information to identify and understand material aspects of sustainability performance. 3. Responsiveness to stakeholder concerns, policies, and relevant standards, and adequate communication thereof. A broader reporting framework – with disclosure beyond sustainability and detailed guidance on content – was released in 2010 by the International Organization for Standardization (ISO) in the form of ISO 26000 Guidance on Social Responsibility, First Edition 2010-11-01, Figure 1, and is summarized in Table 3. ISO 26000 is the most comprehensive set of disclosure standards in existence. Areas of CR Interest A full list of CR areas of interest would be extensive since it would match or exceed the list of existing or prospective stakeholder interests. While ISO 26000 will provide a relatively comprehensive set or CR interests, further discussion of the GRI framework sections provides a useful identification of areas and issues of highest interest. The logic or reason behind these interests is explained below. In general, stakeholders have come to realize that corporations can have a significant impact on any stakeholder interests and that stakeholder groups can influence how corporations can conduct their affairs to improve those impacts and to protect or enhance the interests involved. Since the 1960s, sta­ keholders have become increasingly aware of how significant a degree of influence they possess, and

Table 2 Global Reporting Initiative Sustainability Framework: G3 Guidelines Defining report content Defining report quality Setting the report boundary Profile disclosures Management approach, goals, policy � Economic performance (EC) � Environmental performance (EP) � Labor practices and decent work (LA) � Human rights (HR) Society (SO) Product responsibility (PR) Indicator search, sector supplements � �

Materiality, stakeholder inclusiveness, context completeness Reliability, clarity, balance, comparability, accuracy, timeliness Influence, significant influence, control Strategy and analysis, organizational profile, report parameters, governance Performance indicators, organizational responsibility, training, monitoring, follow-up, contextual information Market presence, indirect impacts Materials; energy; water; biodiversity; emissions, effluents, and waste; products and services; compliance; transport UN, ILO, and Vienna declarations; employment; labor/management relations; occupational health and safety; training and education; diversity and opportunity Investment and procurement practices, nondiscrimination, freedom of association, child labor, forced and compulsory labor, security practices, indigenous rights Community, corruption, public policy, anticompetitive behavior Customer health and safety, labeling, marketing communications, customer privacy, compliance

Contents extracted November 29, 2009.

See www.globalreporting.org/ReportingFramework/G3Online/.

650 Corporate Responsibility Table 3 ISO26000 Guidance on Social Responsibility Scope Terms, definitions, abbreviations Understanding social responsibility Principles of social responsibility � Accountability � Transparency � Ethical behavior � Respect for stakeholder interests, the rule of law, international norms of behavior, and human rights � Recognizing SR and engaging stakeholders Guidance on SR core subjects � Organizational governance � Human rights � Labor practices � Environment: rationale, core issues � Fair operating practices � Consumer issues � Community involvement and development Guidance on integrating SR throughout an organization � Organization’s character and SR � Practices � Communication � Enhancing credibility � Reviewing and improving � Voluntary initiatives Source: ISO 26000 Guidance on Social Responsibility, First Edition 2010-11-01, Figure 1, www.iso.org

they have become increasingly more ready to utilize that influence. The negative reaction by consumers and employees and in stock prices in the capital markets for unexpected unethical actions anywhere in the world can be swift, thoroughly unpleasant, and seriously damaging to reputation, profit, and the interests of shareholders. Consequently, each of the following areas of interest plays an important role in the utilization-influence process.

Governance Processes and the Integration of Stakeholder Interests While it is possible for the actions of individual employ­ ees to make a difference ethically, the coordinated direction of many employees can potentially make a much greater impact, and affords a higher probability of avoiding serious unethical employee actions. The most effective way of achieving coordinated direction is to build ethical principles into the governance, strategy, policies, and reward structures of a corporation. Top management support for such principles is absolutely critical to their observance by other employees. Consequently, corporate reporting on the degree of inte­ gration of ethical principles, of the nature of these principles, and of the commitment to those principles is useful to observers who wish to gauge whether the

direction of the corporation is adequate, outstanding, or in need of change.

Economic Performance Economic performance, in the form of traditional historical cost financial statements, notes, and management discussion and analysis, has long been an expected form of accountability to shareholders, governments, and lenders. Since a corporation’s mandate is to make a profit, and its continuity is dependent on its ability to generate resources, reporting upon economic performance provides very use­ ful information for several stakeholder groups. It should be noted, however, that traditional historical cost financial reports do not report effectively on extern­ alities such as pollution caused by corporations where the impact is borne by others. Consequently, unless tradi­ tional financial reports are augmented by full benefit and cost statements that incorporate all externalities, separate reporting is required to provide a complete picture of corporate impacts and allow monitoring of performance. Environmental or Sustainability Performance Traditional financial reporting almost never captures a corporation’s environmental impacts, and even those cap­ tured are scored in historical costs, not in physical units or

Corporate Responsibility

future costs, nor are detailed plans communicated. Consequently, growing numbers of corporations are reporting separately on their environmental impacts, goals, and activities in a separate environmental impact or sustainability report. A number of organizations have developed expertise in the design and implementation of environmental or sustainability programs, and in the reporting of them. In addition, as will be discussed below, organizations that rate corporate performance in this area have emerged, and acceptably rated company shares have been identified for so-called ethical investors (those interested in invest­ ing in corporations that operate in an ethical manner according to ethical principles) to purchase.

Social Performance: Labor Practices and Decent Work Labor practices regarding: and safety issues; • health reasonable • fair wages; working conditions; • handicapped worker provisions; • elimination of discrimination; • freedom from harassment, and other similar issues • have been developing themes since the early days of the corporation. Many consumers – particularly so-called ethical consumers (who wish to buy goods or services from corporations that operate in an ethical manner according to ethical principles), employees, and suppliers do not want to be associated with corporations that do not treat workers fairly or infringe upon worker rights. Recognizing this, reporting on a corporation’s goals, achievements, and the actions taken to ensure adherence to corporate policies is particularly important in indus­ tries with hazardous products, or those operating in distant locations where poverty and unskilled labor abound, or where the prevalent vision of worker rights entitlement differs significantly from that in the major consumer or capital market regions of the world.

Social Performance: Human Rights Corporations can become involved, either passively or aggressively, in activities that ignore or undermine human rights. For example, corporations have been known to operate in regions where repressive regimes are in power. Sometimes they fund or cooperate with the repressive regime; sometimes they stand by passively and do nothing either to assist or to make the lot of the affected better. Corporations can no longer assume away such political risks using the argument that its just politics

651

and corporations should not interfere. Even Milton Friedman would not have argued for such ostrich-like behavior. Current human rights activists simply will not stand for such behavior; they expect positive helpful action from corporations if corporate activity interfaces with problem areas, activities, or affiliates. Reports are needed to clarify company policies and performance in this regard.

Social Performance: Society Corporate executives have long brought forward corporate donations or philanthropy programs for board approval since these have been regarded as an acceptable way to contribute to society beyond the traditional maximizing of profit and provision of jobs. For some executives and share­ holders, direct contributions for specific purposes are thought to represent a more expedient way of supporting society beyond just allowing governments to collect cor­ porate tax on profits and redirect it to good charitable causes. For others, including many stakeholders outside the corporate world, corporate donations are justified because the health of a corporation depends upon the health of society that it operates within. Donations can be made in cash or in kind such as the use of staff or facilities. Additionally, corporations can spearhead programs to bolster community programs or assets, or provide community support through the provision of scholarships and so on. For many stake­ holders, corporate philanthropy is an important signal of a corporation’s willingness to support society.

Product Responsibility Products or services all involve risks of not meeting the performance expectations of consumers, which may gen­ erate the concern of stakeholders beyond those directly affected. For example, a tire manufacturer that is slow to recall a faulty tire will need to answer to not only those consumers affected, but also potentially their families, their crash victims and their families, as well as taxpayers and insurers who fund health care, in addition to those members of the public (who may not buy those tires in the future) who are offended by the poor judgment and reck­ lessness of the decision makers. Consequently, a corporation’s policies on product hazards, customer com­ plaints, recalls, and the performance related to these objectives are important. The transparency of reporting on these matters will bear directly on the corporation’s reputation, as will the corporation’s willingness to take responsibility.

652 Corporate Responsibility

Activist Stakeholders: Ethical Consumers, Environmentalists, Ethical Investors, Cause-Driven The role of activist stakeholders in driving corporate responsibility cannot be underestimated. Activists, so-called ethical consumers, are offended or outraged by corporate activities and seek to purchase from ethical companies and/or change corporate behavior. When direct communications fail to produce results, indir­ ect means are used including placing derogatory comments on a blog or organizing a boycott of the products of the offending company. Examples of effective boycotts would include Nestle´ products worldwide over questionable dis­ tribution of powdered baby food in South Africa, Nike over use of foreign child labor and labor practices, Walmart over driving other businesses out of business, and Shell over the proposed sinking of the Brent Spar oil storage vessel in the North Sea. For a more complete list consult the Ethical Consumer website. As to their effectiveness, Shell report­ edly lost up to 50% of revenue in Germany due to the protest (and riots) led by Greenpeace and the Green party during the height of the boycott. Activist environmental groups may have been the most successful influencers of corporations and of the governing political processes during the last 25 years. Since 1972, Greenpeace has championed many actions against cor­ porations and countries who carelessly or strategically took advantage of the environment. A statement of what Greenpeace does and a list of their ‘‘victories’’ are available on their website. It should be noted that their methods have not always been ethical, but their interest in a problem is sufficient to cause corporations to reflect quickly on the issues in question. Other organizations such as Ceres (ori­ ginally the Sierra Club) have served well by introducing a set of principles for companies to endorse and build into their activities. Ceres is now intent on creating a sustain­ able global economy and, to that end, claims to have created the largest coalition of investors, environmental organizations, and public interest organizations in North America. Many other institutes, centers, and consulting services are also dedicated to assisting corporations to become more environmentally friendly, fully sustainable where possible, and aware and supportive of solving pro­ blems such as global warming. Full sustainability – carrying on current activities without harming the ability of future generations to do so – is a vital need but an elusive goal for society to achieve. Hopefully, activist environmentalists will continue to be effective in bringing support to the sustainability cause and to the drive for climate impact and sustainability disclosure, which is discussed below. Ethical investors, who seek to invest in ethical companies and/or change corporate behavior, have grown significantly in number and amount invested over the last 15 years until

the total thought to be invested exceeded U.S.$2.7 trillion, or greater than 10% of the total U.S. investment market­ place according to the Social Investment Forum website on November 30, 2009. Initially, the most effective activist investors were the huge pension funds of the California Public Employees Pension Fund (CalPERS) and the New York City Employees Pension Fund. In the early stages of engagement with their investee corporations, the fear was that the pension funds would sell their shares if they did not get a favorable response to their requests for changed beha­ vior. As time passed, pension funds found that selling their shares merely left the recalcitrant investee corporations free to continue doing what they wanted, arguably with some diminishment in their stock price due to lower demand. On the other hand, holding on to the shares, and continuing to try to influence the executives and directors proved to be a far more effective strategy for change. Appearances at annual meetings to ask embarrassing questions or to sponsor motions for vote, have had a significant impact on corpora­ tions, although the change in executive and director thinking and changes in corporate action have usually not been immediately evident. Stakeholder motions have included such topics as: objectives; • Sustainability Executive compensation bonus arrangements; • Say-on-pay – a shareholder • provide guidance to directors. vote on pay plans to Other ethical investors have joined the large pension funds either through their own investments or through so-called ethical mutual funds. These mutual funds have offered investors the opportunity to buy shares of a basket of stocks that the fund manager has screened so that, for example, none manufactures or sells cigarettes, or weapons, or atomic reactors, or pollutes the environment in specified ways, or engages in unfair labor or trade practices, or has operations in repressive regimes. Early attempts at screening were often superficial at best, but professional organizations have now emerged whose screening and rating of corporations is reliable, compar­ able, and insightful, including: Research & Analytics – KLD 400 U.S. companies • KLD list; Canada – Canadian companies; • EthicScan Jantzi-Sustainalytics – Canadian and worldwide • companies. Investments may be made in individual stocks, or in mutual funds or in index funds, including for example: Indexes; • KLD Dow Jones Sustainability Index; • FTSE: FTSE4Good • screened companies; Indexes of baskets of globally • Parnassus Funds.

Corporate Responsibility

For a continuing up-to-date perspective on ethical investing, reference can be made to the Social Investment Forum or to the Social Investment Organization. For a worldwide perspective on sustainability reporting and investing, consult the United Nations Principles for Responsible Investment. Some observers have drawn a helpful distinction between socially responsible investing (SRI) and normal value-based investing, which is termed responsible investing (RI). At the extremes, SRI decisions are a func­ tion of fulfillment of a corporation’s economic performance and of the social ideals of the investor, whereas RI is a function of the former. However, it is worth noting that an increasing percentage of investment decisions are based on some combination of economic performance and social ideals. In fact, given the increasing demand for risk management, even the profit-only-moti­ vated investors will see the relevance in assessing how well a corporation is fulfilling the expectations of stake­ holders other than shareholders. Cause-driven stakeholder groups have emerged over the years and have played significant roles in changing corporate behavior. There is little doubt that cause-dri­ ven groups will continue to form and be effective in the future. The advent of web communications assists this type of activism significantly. Examples of past and cur­ rent groups are listed below: trade initiatives (Pricing): see Fairtrade Labeling • Fair Organization (FLO); labor practices (sweatshops, fair or living wage, • Fair etc.): see Fair Labor Association; in repressive regimes: Sudan Divestment • Divestment Task Force; Carbon footprint disclosure: Carbon Disclosure • Project; Investor Group Climate Change Australia/ • New Zealand; Investor Network on Climate Risk. • The drive for climate impact disclosure has been a domi­ nant focus since the turn of the century and deserves further comment. While the GRI G3 Guidelines and AA1000 have been under development since the late 1990s, their application to sustainability disclosure started in 2000. The rating of corporate performance and effec­ tive use by investors started to be effective soon thereafter, as did the FTSE4Good stock trading index for socially vetted companies. In 2000, the Carbon Disclosure Project (CDP) was formed in order, according to the CDP website (https://www.cdproject.net/en-US/ WhatWeDo/Pages/overview.aspx): to collect and distribute high quality information that motivates investors, corporations and governments to take action to prevent dangerous climate change.

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2,500 organizations in some 60 countries around the world now measure and disclose their greenhouse gas emissions and climate change strategies through CDP, in order that they can set reduction targets and make performance improvements. This data is made available for use by a wide audience including institutional inves­ tors, corporations, policymakers and their advisors, public sector organizations, government bodies, academics and the public. We operate the only global climate change reporting system. Climate change is not a problem that exists within national boundaries. That is why we harmonize climate change data from organizations around the world and develop international carbon reporting standards. We act on behalf of 475 institutional investors, holding $55 trillion in assets under management and some 60 purchasing organizations such as Cadbury, PepsiCo and Walmart.

More recently, at the 2007 Annual Meeting of the World Economic Forum, the Climate Disclosure Standards Board (CDSB) was formed to sort out the specifics (i.e., measurement difficulties, time horizon, etc.) for quantitative and qualitative climate disclosures, and the Big 4 accounting firms are actively participating. The CDP acts as the Secretariat for the CDSB and is responsible for advancing the CDSB Framework, which, with its set of climate impact metrics, is in exposure draft stage (see CDSB website) at the time of writing in November 2009. The broad interest in climate problems makes climate impact disclosures of special value for investors and risk managers, which has led to the estab­ lishment of the Investor Network on Climate Risk, an ‘‘$8 trillion network of institutional investors that pro­ motes better understanding of the financial risks and opportunities posed by climate change’’. With all of this interest in the environment, the pressure being brought to bear on corporations to manage and report on their environmental plans and impact is immense, but hopefully not too late.

CR Expectation Standard Setters, Rating, and Audit Corporate responsibility will continue to change as new stakeholder expectations emerge. Standards will continue to evolve from existing standard setters such as: Reporting Initiative (GRI); • Global International for Standards (ISO); • International Organization Institute for Sustainable • AccountAbility, the AA1000 AssuranceDevelopment; Standards for • sustainability;

654 Corporate Responsibility

UN Global Compact, proposing ten principles cover­ • ing human rights, labor, the environment and

• • •

anticorruption; OECD Guidelines for Multinational Enterprises cov­ ering employment, industrial relations, human rights, environment, information disclosure, bribery, consu­ mer interests, science, competition, and taxation; Social Accountability International, for workplace safety; International Federation of Accountants (IFAC), International Standard on Assurance Engagements.

The standards themselves will be influenced by the inno­ vations developed by corporations and by researchers and research centers devoted to exploring CR. Leading research centers likely to move forward the frontiers of knowledge and practice would include: Investor Responsibility Research Centre (IRRC); • Interfaith Center on Corporate Responsibility (ICCR); • Boston College for Corporate Citizenship; • AIC Institute forCenter Corporate Citizenship. • Organizations engaged in exploring CR and in rating corporate performance will find new ways to examine and report upon corporate performance as it evolves, and audit standards will move apace. These developments are synergistic and mutually reinforcing, and they each contribute to the setting of new expectations for corporate CR performance.

The Future of CR Evidence suggests that stakeholder-driven CR perfor­ mance expectations will continue to rise, and that corporations will attempt to meet those expectations. Corporations will continue to play a very important role in society as they grapple with challenges such as integrating stakeholder interests beyond profit into deci­ sion making, setting integrated priorities, and making defensible decisions. Laws will change to weaken the primacy of short-term profit as the defining measure of corporate performance. Performance tools will abound to assist in the management of CR activities, and risk management assessment will include CR expectations fully. Corporations should become more involved in the evolutionary process, as should heretofore silent stakeholders, in order that an optimal and sustainable set of expectations does emerge. See also: Accounting and Business Ethics; Business Ethics and Gender Issues; Business Ethics, Overview; Corporate Governance; Corporate Ethics, Reputation Management; Economic Ethics, Overview; Socially Responsible Investment; Whistleblowing; Workplace

Ethics: Issues for Human Service Professionals in the New Millennium.

Further Reading AA1000 Assurance Standard (2008), Accountability, UK, 2008, downloadable from http://www.accountability.org/aa1000aps (accessed August 18, 2010) Brooks LJ and Dunn P (2010) Business and Professional Ethics for Directors, Executives & Accountants, Mason, OH: South-Western Cengage Learning. Freeman RE (1984) Strategic Management: A Stakeholder Approach. Boston: Pitman. Friedman M (1970) The Social Responsibility of Business is to Increase Profits. New York Times Magazine, September 13, pp. 32–33. Mitchell RK, Agle BR, and Wood DJ (1997) Toward a Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts. Academy of Management Review 22: 853–886.

Relevant Websites http://www.accountability.org – AccountAbility website. http://www.rotman.utoronto.ca/citizenship/ – AIC Institute for Corporate Citizenship. http://www.bcccc.net – Boston College Center for Corporate Citizenship. http://www.cdproject.net – Carbon Disclosure Project. http://www.cebcglobal.org – Center for Ethical Business Cultures. http://www.ceres.org – Ceres. http://www.cdsb-global.org/index.php?page¼reporting­ framework – Climate Disclosure Standards Board. http://www.sustainability-index.com – Dow Jones Sustainability Indexes. http://www.fairlabor.org – Fair Labor Association. http://www.fairtrade.net – Fairtrade Labelling Organizations International (FLO). http://www.ftse.com – FTSE. http://www.ethicalconsumer.org – The Ethical Consumer website. http://www.greenpeace.org – Greenpeach website. http://www.globalreporting.org – Global Reporting Initiative (GRI)GRI G3 Guidelines with references to over 500 recent reports issued. http://www.iccr.org – Interfaith Center on Corporate Responsibility (ICCR). http://www.IFAC.org – International Federation of Accountants (IFAC). http://www.iisd.org/standards/ –International Institute for Sustainable Development. http://www.iso.org – International Organization for Standards (ISO). http://www.igcc.org.au – Investor Group Climate Change Australia/New Zealand. http://www.incr.com – Investor Network on Climate Risk. http://www.irrcinstitute.org – Investor Responsibility Research Center (IRRC).

Corporate Responsibility ISO 26000 Guidance on Social Responsibility.http:// www.iso.org/iso/home.htm http://www.kld.com – KLD Indexes website. http://www.oecd.org/daf/investment/guidelines – OECD Guideline. http://www.parnassus.com – Parnassus Investments. http://www.socialinvest.org/resources/sriguide/srifacts.cfm – Social Investment Forum. http://www.sa-intl.org –Social Accountability International. http://www.socialinvestment.ca – Social Investment Organization. http://www.sudandivestment.org – Sudan Divestment Task Force. http://www.unglobalcompact.org – UN Global Compact. http://www.unpri.org – United Nations Principles for Responsible Investment.

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Biographical Sketch Leonard J. Brooks is Professor of Business Ethics and Accounting at the Joseph L. Rotman School of Business at the University of Toronto and Executive Director of its Clarkson Centre for Business Ethics and Board Effectiveness. He obtained his Bachelor of Commerce and MBA from the University of Toronto, and his Chartered Accountant (CA) designation as well as his Fellowship in Chartered Accountancy (FCA) from the Institute of Chartered Accountants of Ontario. His areas of specializa­ tion include business and professional ethics, governance, stakeholder theory, and investigative and forensic accounting.

Corporations, Ethics in J Sandberg, University of Gothenburg, Gothenburg, Sweden

ª 2012 Elsevier Inc. All rights reserved.

This article replaces the previous edition article by Francis J. Aguilar, Volume 1, pp 661–672, ª 1998, Elsevier Inc.

Glossary Corporate ethical code Formal document outlining values, ideals, and/or more concrete behavioral prescriptions for a corporation’s executives and employees. Corporate ethics program (CEP) Initiative on the part of a corporation to address its ethical climate,

Introduction A number of large corporations have recently been rocked by humiliating scandals, due in large part to flagrantly unethical or even illegal behavior on the part of their executives or employees. Well-known examples are Enron and WorldCom, where executives used fraudulent accounting practices to create a false appearance of profitability in their firms, and also the Swedish insurance company Skandia, where top managers apparently rewarded themselves with luxury apartments subsidized by the corporation. Similar scandals have incurred fines on corporations, executives have been jailed, reputations have been ruined, and pre­ viously successful companies have been brought to the verge of bankruptcy. Perhaps as a result of all this, some recent reports suggest that the general public’s confidence in cor­ porations is at a record low level – that is, an increasing number of people generally associate corporations, especially large businesses, with unethical and fraudulent behavior. In response to this and in an effort to restore the general public’s trust, many corporations have started to work more actively with what could be called the ethical climate of their organizations. Corporations are formulat­ ing formal codes of conduct for all managers and employees, giving ethical training courses or seminars, conducting internal ethical audits, and having ethical hotlines or committees. Similar activities – which we broadly may refer to as corporate ethics programs (CEPs) – are generally believed to come with a number of strategic benefits for corporations and, indeed, some larger corporations have devoted quite substantial amounts of resources to this. An increasing number of governments, professional organizations, and other stake­ holders are also calling for, supporting, or even requiring similar initiatives. According to some recent studies, as

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specifically the ethical behavior of executives and employees. Social audit Verification of a corporation’s compliance with both external and internal standards on non­ economic, typically social and environmental, issues. Stakeholder A person, group, organization, or system that affects or can be affected by a corporation’s actions.

many as 90% of large American corporations now have formal ethical codes, and this figure is also over 50% throughout Europe, Australia, and certain parts of Asia. Many of these corporations also have ethical training courses, ethical committees, and ombudsmen specifically dedicated to ethical issues in the workplace. Is the adoption of a CEP an adequate response to the general public’s concerns? If so, how should such a CEP be designed more exactly? This article outlines some of the most common points of discussion pertaining to CEPs in particular and ethics in the workplace in general. Section I outlines the basics of some of the most common CEPs adopted by contemporary corporations; Section II introduces the recent debate about whether corporations should adopt CEPs in the first place; and Section III intro­ duces the discussion about how CEPs should be designed more exactly. Finally, Section IV addresses some of the more specific values of workplace ethics typically included in contemporary CEPs.

Corporate Ethics Programs Corporations can and have addressed the ethical climate of their organizations in a number of different ways, and it may be useful to say something more about these before proceeding further. The by far most common way in which contemporary corporations have addressed their ethical climate is through the adoption of so-called ethical codes (alternatively referred to as codes of conduct, busi­ ness codes, or integrity codes), that is, through the management or board of directors of the corporation adopting a formal document outlining certain values, ideals, and/or more concrete behavioral prescriptions that executives and employees are supposed to abide by.

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The style and content of corporate ethical codes can vary tremendously and so it is not a uniform phenomenon – codes can be more or less ambitious or idealistic, their level of detail can range from simply emphasizing very general ideals to spelling out more concrete rules and recommendations, and their tone can range from simply focusing on negative restrictions to also including more positive aspirations and/or long-term goals of the cor­ poration. Although a widely disparate phenomenon, ethical codes are becoming increasingly commonplace in the business world and this has indeed given rise to an entire industry of coding consultants, courses in code writing, and academic centers for the analysis of corporate ethical codes. Some corporatins, however, have gone further than this. A fairly common supplement to ethical codes is the orga­ nization of so-called ethical training courses or ‘‘ethics seminars’’ for employees. The style of such courses can also be varied and ranges from stricter-type sessions, typi­ cally with in-depth explanations of and/or training in the ethical guidelines of the corporation, to looser and more open discussion-type sessions, where all participants are invited to share their own perspective on central ethical dilemmas in the workplace. Ethics courses are most often organized mainly for executives and higher level employ­ ees, but some corporations also invite lower level employees and some even invite the employees of the corporation’s major suppliers and/or collaborators. Some corporations have adopted more permanent sorts of CEPs, such as having in-house staff with the specific responsibility of dealing with ethical issues in the workplace. The typical scenario would be that a corporation has only one or two such members of staff, typically referred to as ethics or compliance officers or ombudsmen, but some keep a larger ethics or compliance committee with multiple members. These ethics officers and/or members of ethical committees are normally recruited from the management or board of directors – i.e., they are generally a part of the senior management of firms – and their primary responsibility is often to moni­ tor compliance with the corporation’s ethical code or to administer its ethics courses. However, some ethics offi­ cers have further responsibilities such as answering the corporation’s ethical hotline – a telephone line for urgent inquiries of ethical or semi-legal nature open to all employees – or conducting regular ethical audits of the corporation. The hiring of ethics officers has actually become so common in the United States that they have their own professional organization, the Ethics and Compliance Officer Association (ECOA). So-called ethical (or social) audits have become a fairly prominent phenomenon in the business world in recent years, and can be conducted either by in-house ethical committees or officers or by external social auditing con­ sultants or business ethics professors. The idea of an

ethical audit is basically to verify a corporation’s compli­ ance with both external and internal standards on certain social and/or environmental issues, just like financial auditors regularly verify corporations’ compliance with standards on accounting and financial reporting. Issues included in ethical audits may be employee conduct in general, compliance with laws and regulations, quality of products and services, and safety in the workplace. Most corporations primarily use the results of such audits as a basis for continued internal focus on and work with ethi­ cal and social issues, but some corporations also publish the results as a supplement to their annual financial reports. Indeed, the publication of such social responsi­ bility reports is becoming increasingly popular as they are viewed as an effective way of strengthening the corpora­ tion’s ethical or social reputation. A final way and quite radical kind of CEP should probably be noted in this context as well. In order to further strengthen the corporation’s ethical reputation or to assure compliance with its ethical code, some corpora­ tions have sought to incorporate an emphasis on ethical decision-making into their very corporate or organiza­ tional structure, that is, to make ethics built in, so to say, into the core of the corporation. Efforts of this kind have involved amending central remuneration and bonus pro­ grams for executives (for instance, to include financial incentives for more ethical behavior), changing the make-up of the board of directors (for instance, to include an ethics officer or an employee representative), and even amending the basic charter of the corporation (for instance, to express equally a firm commitment to certain social and/or environmental goals as to the economic or financial ones). This last sort of action is obviously the most radical one, and may be viewed not only as a way in which corporations have sought to address their internal ethical climate but, indeed, as the creation of an entirely new kind of business model: the socially minded corporation. I will refer to all of these ways in which corporations have addressed the ethical climate of their organizations simply as CEPs in what follows. Much of the academic discussion in the area has tended to focus exclusively on ethical codes but, as I hope will become evident through­ out the article, it really makes more sense to discuss some of the more general issues here in relation to CEPs in general. Furthermore, certain quite interesting issues are really only visible when discussing the full range of pos­ sible CEPs.

For and against Corporate Ethics Programs The most fundamental question concerning CEPs is whether corporations should adopt such programs in the

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first place, that is, whether it is really a good thing that corporations address the ethical climate of their organiza­ tions in (any of) the ways described above. It may be noted that most academic commentators have been widely enthusiastic about the proliferation of CEPs. However, some commentators have also been deeply critical, and this has recently given rise to fairly heated debates in the business ethics literature. This debate between proponents and critics of CEPs has tended to revolve around issues such as for what aim corporations have implemented CEPs in the first place, what effects CEPs have on the position of employees, and whether CEPs can really be effective in influencing employee behavior. I will further introduce these debates below. The Aim of Ethics Programs Why are so many corporations now adopting CEPs? The official story given by the corporations themselves is typically that they simply want to take a stronger respon­ sibility for the ethical climate of their organizations, and especially for the effects of the corporation’s activities on third parties. While many corporations note that adopting CEPs may also be good for their business (by, for instance, strengthening the corporation’s reputation and/or improving their relationship with stakeholders), this is seldom said to be the only reason for their adoption of CEPs. Many corporations say something like ‘‘Because we firmly believe in values such as ethics, integrity and the service of society, we are deeply committed to these values throughout our organization,’’ or they may say something like ‘‘As a world leading provider of this or that product or service, we realize that our actions have effects on both people and the environment, and for this reason we always strive for the highest degree of integrity and responsibility in all our operations.’’ But, are state­ ments like these credible? Proponents of CEPs tend to think that they are. Some of the most enthusiastic commentators suggest that the widespread adoption of CEPs by contemporary corpora­ tions represents a new kind of ethical awareness in the business world, an awareness which, among other things, consists in the important realization that there is an ethi­ cal dimension to almost all types of corporate activities, and also that this dimension needs to be taken into account in the strategic management of the corporation. Even though such talk of a new kind of ethical awareness may be slightly exaggerated, there certainly seems to be something to these comments: at least the fact that cor­ porations talk about ethics in these ways is something relatively new in the business world. Critics, however, have not been equally enthusiastic. One of the most common criticisms directed against CEPs is that they seem to be implemented for the wrong kind of reason, and that corporations simply do not care about

ethics per se. According to critics, the real reason for why corporations adopt CEPs is the profit motive – that is, corporations adopt CEPs simply because they want to make more money for their shareholders. As noted at the outset, CEPs are typically associated with a number of benefits for corporations: first and foremost, obviously, a sort of protection against the kind of scandals that have brought previously successful companies to the verge of bankruptcy. But according to critics, then, these benefits are the real reason for why so many corporations have now started to adopt CEPs. On this view, CEPs basically function as a form of window dressing for corporations, i.e, a nice front or show which they can put on in order to be perceived as responsible and caring. However, when you dig a bit deeper, critics suggest, corporations seldom care about being responsible or caring per se – the only thing that counts is exactly being perceived as responsible and caring. Critics cite a number of reasons for why profit seems to be the real motivation behind CEPs. It is often noted, for instance, how many corporations seem to have adopted CEPs as a direct response to salient concerns among the general public and/or legislators. Much of the interest in CEPs among American corporations seems to have come after the United States Sentencing Commission changed its guidelines in 1991, so that organizations that proac­ tively manage legal compliance face significantly reduced fines and sentences if their employees are caught enga­ ging in misconduct. When researchers have analyzed exactly what kinds of corporation are more likely to have adopted CEPs, furthermore, it seems like companies in consumer goods sectors such as the garments, footwear, toys, and food sectors, where brand names and corporate image are very important, are more likely to have adopted CEPs than, for example, companies in more durable goods sectors or corporations mainly operating in developing countries. These considerations are then taken to indicate that the profit motive is the real reason behind CEPs. A number of studies of the more specific content or focus of CEPs have been conducted, and critics typically suggest that the results of these studies lend further sup­ port to their views. Many content studies namely indicate that much more emphasis is given on CEPs to restricting directly illegal behavior and/or behavior that could be detrimental to the corporation as such (e.g., bribery, extortion, conflicts of interest, and the use of insider information) than to more proactive issues or the restric­ tion of behavior that could harm external stakeholders. These results have caused many commentators, not only critics, to view CEPs mainly as a form of liability preven­ tion or self-protection on the part of corporations. On top of this, some of the most radical critics argue that part of the aim of the business world’s adoption of CEPs as a measure of self-regulation in fact seems to be to

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reduce demand for external regulation – either by gov­ ernments or by international labor associations – and specifically to undermine the position of trade unions in the workplace. But external regulation and heavier invol­ vement by trade unions, these critics suggest, would probably be better for the stakeholders of these corpora­ tions – at the very least, the use of independent compliance monitoring (which very few contemporary corporations seem interested in) would make CEPs more credible. Thus, the adoption of CEPs actually wor­ sens the situation for exactly the people that were supposed to be their beneficiaries. Whether this last allegation is correct is difficult to determine. I believe it has to be contended, however, that the profit motive probably has played a rather central part in why so many corporations have chosen to adopt dif­ ferent kinds of CEPs. The profit motive is arguably a central driving force in all kinds of commercial activity, and corporations indeed seem to have much to gain by controlling the ethical behavior of their employees. Whether this is necessarily a bad thing, however, is not entirely obvious. The criticism of wrongful aims has strong affinity to Kantian moral thinking, but Kantianism is not universally supported by moral philo­ sophers and one could perhaps argue that the issue of motivation is less important as long as good things are done, i.e, as long as corporations indeed succeed in strengthening the ethical climate of their organizations. Effects on Employees Although the ultimate motivation for why so many cor­ porations have adopted CEPs to some extent may remain obscure, a central aim of these CEPs as such is obviously to influence the behavior of the corporation’s managers and employees. But what are the effects of such measures on managers and employees themselves? Proponents of CEPs sometimes suggest that similar programs actually may strengthen the position of employees in the work­ place. With a robust CEP in place, employees will know exactly what is expected of them, for instance, and they may also have certain ethical ideals or goals to aspire to which they might not have had otherwise. Even though employees ideally should behave ethically on their own accord, there is nothing wrong in giving them stronger incentives for doing so, proponents suggest, nor need there be anything wrong with showing them just a bit of direction. Furthermore, it has also been argued that employees will be able to hold their superiors accountable for the way in which they are treated, which they cannot do without a robust CEP in place: obviously, it would seem hypocritical if employees were expected to live up to more stringent ethical ideals than their superiors, and the unethical treatment of employees in firms with CEPs in place could look really bad if the press got news of it. In

a sense then, proponents argue, CEPs may be able to empower employees subjected to them. Once again, however, critics disagree. One of the harshest criticisms directed at CEPs is the idea that CEPs by necessity are disparaging to employees, or even in violation of their moral autonomy or integrity. This kind of criticism can be understood in at least two ways. One interpretation is mainly about how certain employees may react to CEPs: it has been suggested that many employees may view CEPs as a motion of noncon­ fidence in them from management or the board of directors. After all, the adoption of a CEP on the part of a corporation seems to signal a kind of moral criticism directed toward the behavior of its employees. Why would you need an ethics program if nobody is doing anything unethical? The very fact that a corporation thinks that it has to address its ethical climate may thus be seen as accusatory, demeaning, or even threatening by the people subjugated to CEPs. It is either that or, to the extent that employees will be able to see through the window-dressing nature of most CEPs, critics have argued that such programs could also lead to greater cynicism on the part of employees: cynicism about how their employers obviously mean very little by invoking such fancy words as integrity and responsibility. It is ultimately an empirical question to what extent employees indeed are likely to react in these ways to the adoption of CEPs by corporations. Unfortunately, how­ ever, critics present little empirical evidence for their allegations; in fact, as I will further explain below, the available evidence seems to contradict these allegations. There are some indications that employees in corpora­ tions with an ethical code actually perceive their workplace as more ethics friendly than do employees in corporations without such a code. But perhaps this need not mean that CEPs cannot be disparaging in a more objective sense, or when viewed from the outside. According to some of the most radical critics, typically inspired by so-called postmodernist or poststructuralist thought, CEPs are basically managerial control mechan­ isms designed to usurp or control the consciences of employees – a kind of corporate fascism or indoctrination, if you will – and the possible fact that employees them­ selves do not feel this way only goes to show how successful indoctrination sometimes can be. However, when you compare CEPs with what plausibly should be the ultimate ethical ideal – the free choice of behavior in light of an open and inspired moral discourse – these critics suggest that the indoctrinate character of CEPs should become apparent. As long as employees them­ selves are not invited to participate in the design of CEPs, such programs basically constitute an infringement on the moral autonomy of employees and may also alie­ nate employees from their own moral selves.

660 Corporations, Ethics in

This last kind of criticism directed against CEPs is indeed harsh. If it is correct, CEPs are far from ethical; in fact, the whole idea of CEPs is morally corrupt. But perhaps the critique is a bit exaggerated. To what extent one is prone to agree with this kind of criticism, I believe, may to some degree depend on one’s evaluation of the (current or possible future) content of CEPs. As long as CEPs aim for a good cause (i.e, as long as employees are made to act in more responsible and caring ways both toward each other and toward stakeholders) the issue of coercion may seem less decisive. Or do CEPs constitute an illegitimate means in the struggle for a more ethical workplace? The Effectiveness of Ethics Programs As noted above, a central aim of CEPs is obviously to influence the behavior of the corporation’s managers and employees or, more specifically, to reduce unethical and unlawful conduct in the firm. How much weight one should give to the criticisms of wrongful aim and illicit means, I have suggested, may to a certain degree depend on exactly whether they are able to do this, and also on just what kind of ethical climate they can produce. Unfortunately, however, there is no general agreement on these issues; that is, the issue of to what extent CEPs are (or can be) effective is actually a much debated issue in the contemporary literature. Proponents of CEPs typi­ cally argue that the adoption of a well-balanced mix of some of the CEPs outlined in the first section constitutes a reasonable and effective way of dealing with (the risk of) employee misconduct on the part of corporations. Formulations seen in the literature are ‘necessary,’ ‘vital,’ ‘invaluable,’ and ‘successful.’ Critics, however, argue there are many reasons for thinking that CEPs are highly ineffective: most impor­ tantly, external factors such as market competitiveness, professional education and pride, and societal culture in general are often suggested to have much greater influ­ ence on the behavior of employees than corporate codes of conduct can ever have. Furthermore, the influence of the personal characteristics of managers and employees themselves has been stressed and, while there certainly may be some employees whose personal characteristics may make them more easily susceptible to the influence of CEPs, the argument is that the managers and employ­ ees who would need it the most (i.e., the ones who are the most prone to unethical behavior) probably are the least susceptible to such influence. According to critics, then, very few CEPs can be expected to significantly influence the behavior of managers and employees, and so most of them are, in a very straightforward way, pointless. A considerable amount of empirical research has been conducted to shed light on this debate during the last couple of decades, especially on the effectiveness of

corporate ethical codes. Unfortunately, however, the results of this research are mixed: whereas some studies have found statistically significant positive effects of the existence of a code of ethics in a corporation, others have found no such effects, and yet others have actually found statistically significant negative effects. The more specific characteristics of these studies have been quite varied: as indicated above, for instance, one study found evidence that employees in corporations with a code of ethics perceive their workplace as more ethics friendly than do employees in corporations without such a code. Exactly what this entails in terms of effectiveness, however, is not clear. Other studies have found that employees in the former group are typically unable to give any more spe­ cific details of what their corporation’s code prescribes, and also to say more exactly how they believe that it has influenced their behavior. The slightly dominant group of studies actually seems to be those that show a lack of statistically significant effects. For instance, little objec­ tive evidence of behavioral changes as a result of ethical codes has been found, e.g., in terms of a reduction in the number of civil actions taken against corporations with such codes. Now, that there is little solid evidence of the effective­ ness of ethical codes certainly should not be taken to imply that they are completely ineffective. Furthermore, it should be noted that empirical research in this area is fraught with a number of difficulties; for instance, exactly how to define ‘code of ethics,’ how to measure output and corporate conduct (especially the ethical nature of such conduct), what samples of companies and countries to use, and what research methodology to apply are all highly con­ tended issues. The great variation in the results of the studies that have been conducted so far is probably due in large part exactly to these kinds of difficulty. Thus, the most reasonable thing to say is probably that we need further and more robust studies before we know with any certainty exactly how effective corporate ethical codes are. Interestingly, many studies on corporate ethical codes highlight the need for a stronger emphasis on compliance measures by corporations, or more elaborate ethics programs beyond the code document itself, which are generally thought to be necessary measures to increase the effective­ ness of the code. This could be taken to suggest that more elaborate CEPs, such as ethical training or the use of ethics officers or ethical committees, could be more effective. Unfortunately, however, too little attention has been given to these kinds of CEPs as such by empirical researchers, and so we really do not know that for sure either.

The Design of Corporate Ethics Programs So far we have only been concerned with the quite gen­ eral and abstract issue of whether corporations should

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adopt CEPs in the first place. Quite irrespective of what one may think of this issue, it is a fact that more and more corporations are now adopting CEPs. We may thus move on to the more specific issue of how CEPs should be organized and designed, given that corporations are so set on implementing them. Perhaps CEPs could be designed so as to minimize the elements that could be seen as accusatory or threatening by employees. And perhaps there are at least prima facie reasons for thinking that certain types of CEPs are more effective than others. As seen in the first section, CEPs come in a number of different variations: ethical codes, training courses, ethics officers, ethical hotlines, social audits, and more radical changes of the organizational structure of companies. Furthermore, the style and content of these CEPs may vary greatly: they can be either more ambitious or more realistic, more abstract or more concrete, more detailed or more general, mainly negative versus also positive, non­ binding versus compulsory, demanding versus nondemanding, etc. The issue of how to best design a CEP has recently been discussed by a number of academic commentators, many of whom have actually been hired by corporations to design CEPs themselves. In what fol­ lows, I will mainly focus on three of what I take to be the more central issues in this area: whether CEPs should be more than just an ethical code, whether they should focus on negative or positive recommendations, and whether they should be abstract or concrete. Beyond the Ethical Code? The kind of CEP by far most commonly adopted by contemporary corporations is the ethical code. Although, as I have said, the reasons for why so many corporations have issued ethical codes to some extent may remain obscure, one could still take this as an indica­ tion that the board of directors of most corporations seem to think that issuing an ethical code is an appropriate way of addressing the ethical climate of their organizations. Among academic commentators, however, many are critical of the fact that so many corporations only have implemented an ethical code. Many commentators stress the need for adequate compliance measures to supplement the corporate ethical code, or more straight­ forwardly the value that more elaborate CEPs, such as ethics courses, ethical committees, or changes in the organizational structure, could bring to corporations. The most common argument for moving beyond the ethical code is, as we have seen, the idea that just having an ethical code may not be sufficiently effective. Although further empirical research is needed to support their case, many commentators suggest that there are at least prima facie reasons for thinking that more elaborate CEPs, or perhaps an ethical code in combination with more elabo­ rate CEPs, will be more effective. After all, an ethical code

as such only spells out certain ideals or rules that the corporation expects its employees to abide by. However, it does not give them any more concrete incentives to do so and, furthermore, it does not necessarily tell them exactly how to do it. The latter problem could be solved by giving ethical training courses or establishing ethical hotlines to which employees could call, whereas the for­ mer could require some form of ethical committee in place or perhaps amending central remuneration and bonus programs. Many commentators are widely enthusiastic about the kind of changes to the very structure of corporations introduced toward the end of the first section. By making ethical considerations built into corporations in these kinds of more robust ways, commentators suggest that corporations will be in the best possible position to coun­ teract external pressures such as market competitiveness and the use of benchmarks, factors which (quite irrespec­ tive of whatever official documents the board of directors produce) tend to create a culture of short-termism and greed among the members of commercial organizations. Furthermore, by incorporating ethical considerations into the very core of their organization, corporations can show how serious they are about their CEP, that is, they can establish beyond reasonable doubt how their CEP is indeed motivated by more admirable aims than just liabi­ lity prevention and self-protection. Much more can probably be said for why corporations ought to move beyond just the ethical code. However, at least a couple of things can also be said against it. According to some commentators, the movement toward more elaborate CEPs will tend to involve more and more staff and resources in the CEP. But not all corporations can afford more costly ethics programs. As noted at the outset, it is indeed almost exclusively larger corporations that have adopted CEPs in the first place. Furthermore, as more and more members of staff become involved, it has also been suggested that the risk of bias and corruption in the CEP actually may increase. Although ethics officers and members of ethical committees ideally should per­ form their duties with impartiality and primary concern for the values of the organization, there is certainly the risk that they may cut corners and interpret these values in a way that ultimately favors either themselves or some other group in the organization. Different people in the ethics organization may also give conflicting advice to employees and, compared to this, simply having an ethi­ cal code that treats all members of the organization equally may constitute a both clearer and more transpar­ ent sort of CEP. The debate over just how elaborate CEPs ought to be is likely to continue among commentators. However, it remains to be seen how many corporations are really ready to spend the kind of resources needed to make

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ethical considerations a central cornerstone of their entire organization. Positive versus Negative A central issue concerning the formulation of corporate ethical codes in particular, but also the design of CEPs more generally, is whether they should simply focus on negative restrictions; or also include more positive aspira­ tions and/or long-term goals of the corporation. Since the main purpose of many CEPs seems to be liability preven­ tion or self-protection, as I have said, there may be a natural tendency on the part of corporations to make CEPs focus exclusively on negative restrictions; that is, on restraining certain types of unethical or directly illegal behavior among employees that is thought to be able to get the corporation into trouble. Restrictions on negative behavior may be explicated in an ethical code, may be the main focus of ethics courses for employees, and/or may be sanctioned in different ways either by the practices of ethical committees or by more permanent reward and sanctioning mechanisms forming part of the corporate structure. But is it reasonable and prudent for corpora­ tions to focus only on negative restrictions? Many commentators suggest that a predominantly negative focus in CEPs has actually one major advantage in terms of clarity. First of all, having a predominantly negative focus may mean actually being upfront about the corporation’s aims with the CEP, that is, that the ultimate aim of the CEP is liability prevention and protection of the firm against public scandals, which it most often is. Furthermore, a predominantly negative focus may also make the content of the CEP clearer, to both employees themselves and their superiors. With a range of negative restrictions in place, it has been suggested, employees can quite easily find out what is expected of them: they may easily determine whether using fraudulent accounting practices is sanctioned by their superiors, for instance, and they may also quickly learn that they are not allowed to reward themselves with luxury apartments subsidized by the corporation. Furthermore, ethics officers or mem­ bers of the ethical committee can quite easily monitor the ethical behavior of their staff; whether an employee is the proper object for sanctions here simply depends on whether he or she has violated the corporation’s negative ethical restrictions. A disadvantage with simply focusing on negative restrictions, however, may be that it can more easily be seen as accusatory or threatening by employees. The ethical committee’s job basically becomes that of an ‘‘in-house police department,’’ as one commentator puts it, and thus there is a risk that members of staff may feel policed, controlled, monitored, and/or basically dis­ trusted. Many commentators further note that simply focusing on negative restrictions in CEPs may make

employees associate the corporation’s talk of ethics and integrity only with previous cases of misconduct, and the effect may be a spiral of negative thinking; that is, employees may actually take to more unethical behavior as they feel that the corporation already expects it of them. As noted above, why would you need an ethics program if nobody is doing anything unethical? A stron­ ger emphasis on positive aspirations and/or the long-term goals of the corporation, on the other hand, could perhaps inspire employees to think positively and to actively do good. The alternative to a predominant focus on negative restrictions, then, is the inclusion of certain positive aspirations or long-term goals in CEPs. Such aspirations may be expressed as ideals of responsible conduct or visions of the ideal workplace in corporate ethical codes; employees may be stimulated to elaborate on their own visions in ethics courses; and positive rewards may be given to employees considered to have an outstanding track record in terms of responsible or socially beneficial behavior, either in the workplace or toward external stakeholders. What is generally thought to be the advan­ tage of a more positive focus of CEPs, as already noted, is the ability it may have to stimulate employees into posi­ tive ethical thinking, and this is sometimes said to be conducive to both a happier work environment and also a more innovative work force. On the other hand, an obvious drawback of a positive focus is that it becomes more difficult to monitor employees’ compliance with the corporation’s CEP. Furthermore, it may be more difficult for employees themselves to know exactly what is expected of them: ‘Act responsibly’ can obviously be understood in a number of ways, for example, whereas ‘Don’t cheat’ is relatively straightforward. The more ambitious or idealistic the aspirations of the CEP become, finally, perhaps the less employees can be expected to pay attention to them. In their analyses of contemporary corporations’ ethics programs, most researchers suggest that the majority actually include a combination of both positive and nega­ tive elements. And perhaps this is the most reasonable way to go. Or is there a need for more positive ethical thinking in corporations? Abstract versus Concrete The debate about whether CEPs should be positive or negative is connected to the issue of abstract versus con­ crete (i.e., whether CEPs simply should emphasize very general ideals or spell out more concrete rules and reg­ ulations). A predominant focus on negative restrictions may tend to be more detailed, whereas an inclusion of more positive aspirations and/or long-term goals typi­ cally may make things more abstract. Indeed, it is partly because positive aspirations tend to be more abstract that

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compliance with such aspirations may be more difficult to monitor. But these correlations are perhaps not necessary and, in any case, the debate of abstract versus concrete is interesting on its own. The benefit typically associated with very concrete rules is once again the clarity about expectations that such rules can give to both employees and their monitors. Fairly recently, however, a number of commentators have suggested that focusing more on abstract values or ideals in CEPs actually can have a number of perhaps unex­ pected advantages over more concrete rules. The main advantage of more abstract values is that they may serve proactively, that is, that they may encourage employees to internalize a whole way of ethical thinking rather than just a limited set of more specific behavioral recommen­ dations. While more concrete guidelines may make clearer exactly what behavior is expected of employees in the short term, the idea goes, they do little to incenti­ vize employees into thinking more strategically and long term about their ethical behavior. But an emphasis on more abstract values may do exactly that, and this may prove more effective exactly on the long term for cor­ porations – partly because it simply could prevent future liabilities at a lower cost. While part of the discussion on abstract versus con­ crete mainly concerns effectiveness and long-term strategy again, perhaps a more fundamental issue of work­ place ethics actually is at stake in this discussion as well, namely the issue of exactly what sort of employees CEPs ideally should foster. According to some commentators, the ideal of what we may call rule- (or compliance-) oriented CEPs – that is, CEPs focusing on more concrete rules – basically seems to be the careful yet unquestioning rule-follower, i.e., an employee who constantly consults the corporate ethical code to see whether he or she is behaving correctly, adjusts his or her behavior according to the exact formulations of the ethical code, and never really takes ethical initiatives on his or her own outside the realm of the corporate code. In stark contrast with this, it has been suggested that the ideal of values-oriented CEPs is a more independent kind of employee, an employee who only consults the corporate ethical code for some general direction but then develops his or her own understanding of the values laid out in the code, and then in day-to-day decisions in the workplace mainly consults his or her own conscience to decide what is right and what is wrong. An argument from proponents of values-oriented CEPs in this context is basically that employees of the latter kind are preferable to employees of the former kind, from both a moral and a strategic point of view. From a moral point of view, the independent yet conscientious employee simply seems more virtuous than the blindly rule-following employee. From a strategic point of view, furthermore, an emphasis on simple rule-following

among employees could basically be too inflexible: as one commentator puts it, there are always ways of getting around concrete rules, and there are always gray areas, that is, areas where it is not obvious exactly how a certain rule should be interpreted. Employees only interested in following rules, critics say, may have no problem of exploiting these gray areas, and they will certainly not be motivated to change their behavior in morally problematic areas that the corporate ethical code for some reason or other may have missed. But employees who seek to live up to a more abstract ethical ideal rather than to follow rigid rules may not be equally open to exploit such gray areas. Thus, the idea goes, by encouraging employees to be of the latter kind, values-oriented CEPs are more proactive than compliance-oriented CEPs. Once again, much more can probably said for making CEPs more values- than rule-oriented, but at least one thing can also be said against it. Whereas the moral autonomy or independence of employees may be sup­ ported to a greater extent in values-oriented CEPs than rule-oriented CEPs, it may be noted that even valuesoriented CEPs ultimately aim to steer the behavior of employees in a rather specific direction. But then, postmodern critics may say, even values-oriented CEPs may fail to live up to the highest ideal of moral autonomy on the part of employees. In fact, values-oriented CEPs could be said to be a worse threat to this ideal than ruleoriented CEPs: not only are employees expected to adjust their behavior to certain external rules on such programs, but they are actually expected to internalize certain more fundamental values given to them by the corporation, that is, they are expected to change their very character to better fit the corporation’s aims. But we typically take persuasion directed toward changing our very character as a more serious threat to us than persuasion directed toward our abiding by certain external rules. Ethics in the Workplace Independently of whether one favors values- or ruleoriented CEPs, the natural follow-up question is exactly what values or what rules the CEP should include. In this final section of the article, I will introduce and discuss some of the more specific values of workplace ethics typically included in contemporary CEPs. Exactly by what rationale different values ought or ought not to be included in a CEP is perhaps not entirely clear. One idea is obviously that corporations should include whatever set of values which most effectively produces the outcome that it wants, that is, that the guiding rationale should be effectiveness in relation to liability prevention or some­ thing of this sort. According to an increasing amount of commentators, however, the values of CEPs should ide­ ally also be morally justifiable – that is, a CEP ought ideally to promote behavior on the part of employees

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that is also ethical in a more objective sense. But exactly what constitutes truly ethical behavior in the workplace? This is an extremely difficult issue that I cannot treat in its entirety here, but I will at least try to say something about it.

difficult questions. However, examples like this have caused some philosophers to question whether legality in itself is ever morally important; perhaps the guiding value is simply decency or justice and one should only abide by just laws.

Legality

Loyalty

A central part of most CEPs is the fight directly against illegal behavior on the part of executives or employees. In ethical codes, this is typically expressed as the idea that ‘‘meeting legal obligations is of utmost importance in this organization’’ or that ‘‘all members of our organization will observe, both directly and indirectly, all relevant local laws and regulations.’’ In ethical training courses, much time is often devoted exactly to in-depth studies of different pieces of relevant legislation and employees are told what sanctions different kinds of illegal actions can lead to. And these are also questions that ethics officers are trained to answer; indeed, many corporations treat their ethics programs basically as an extension of their legal department. Against the background of the kind of scandals noted at the outset, it is perhaps not difficult to understand why corporations focus on legality in their ethics programs. After all, what corporations want to avoid is the kind of flagrantly unethical or illegal activity on the part of employees that could get them into trouble. As noted above, however, many commentators are critical of this part of CEPs. If CEPs are all about liability prevention, then it is simply hard to see what could be so ethical about CEPs. Furthermore, to the extent that so-called ethical codes really just reiterate what the law says, it is hard to see what such codes add over and above the law, except, of course, that they create a further appearance of a company working hard with its ethical climate. As a principle of ethics in the workplace, the idea that one always ought to stay within the confines of law might seem fairly obvious and basic, almost like a moral mini­ mum. However, a classic discussion is whether there are occasions when we are morally permitted – perhaps even obliged – to break the law. As a case in point, it may be noted that many commentators looked favorably to cor­ porations that secretly violated the laws of the apartheid regime of South Africa in the 1970s; corporations which, for instance, allowed blacks to work side by side with whites. Even though such behavior was clearly illegal, the general sentiment was that many of the laws of the apartheid regime were simply indecent or immoral. When executives or employees are confronted with laws that are just flagrantly indecent or immoral, then, strong moral reasons seem to support that they actually act in violation of those laws. Now exactly where this boundary lies and exactly what laws we are allowed to violate are

Another central part of most corporations’ CEPs is a focus on loyalty toward the corporation. This focus can take a number of forms: some ethical codes insist directly on employees’ acceptance of and/or dedication toward the ideals or goals of the corporation; they may say, for example, that ‘‘our common goal is to make this company the largest and most successful company of this or that sort in the world.’’ Others may suggest this more indir­ ectly; common employee qualities idealized in ethical codes are, for instance, quality, commitment, and enthu­ siasm. Yet again other codes appeal more loosely to good corporate citizenship or that no employee should jeopar­ dize the corporation’s reputation. Why an appeal to loyalty is a central focus in CEPs may once again not be difficult to understand, but do employees have moral reasons to abide by these appeals? A number of ways of grounding a moral obligation of loyalty on the part of employees have been suggested in the business ethics literature. It has been argued, for instance, that an obligation of loyalty follows from the contractual obligations employees accept when they start working for a corporation, and also that Kant’s categorical imperative supports employee loyalty: after all, if no employees are loyal to their corporations, corporations simply could not work. On the other hand, most business ethicists argue that the issue of corporate whistle-blowing needs to be taken very seriously, that is, they agree that there may be times when employees are morally per­ mitted, or perhaps even obliged, to act in ways that are detrimental to their employers. This may be when highlevel executives themselves are involved in unethical affairs, for instance, or when a corporation simply refuses to act on serious allegations of, for example, discrimina­ tion or harassment in the workplace. Integrity Many CEPs stress the importance of integrity on the part of executives and employees. Indeed, integrity is some­ times held out as the core ethical value that employees are expected to embrace. As we have seen, ethical codes are sometimes referred to as integrity codes, and ethical training courses are sometimes referred to as integrity training. Compared to the other ethical values discussed in this section, however, the ideal of integrity is probably the most obscure. Quite often in the context of corporate

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ethical codes, integrity simply seems to be a synonym to virtue, that is, a person with integrity is simply thought to be the kind of person who refrains from engaging in unethical behavior. But this obviously says nothing about exactly what kind of character a person of integrity would have, nor exactly what kind of behavior such a person would avoid. When integrity at times is fleshed out a bit more in contemporary CEPs, it is often connected to values such as conscientiousness, accountability, and commitment. Some commentators read this as the idea that integrity basically means moral self-governance or loyalty to one’s own moral values, perhaps even the courage to stand by one’s own values. I think this reading is interesting since the appeal to integrity then obviously seems to clash with the appeals to, for instance, legality and loyalty to the firm also expressed in many CEPs. Loyalty to one’s own moral values certainly seems to be a virtue, or perhaps a meta­ virtue (since it deals with how seriously one should take one’s other moral values), but its suitability in the corpo­ rate context could perhaps be questioned for exactly these reasons. While there may be a time and place for corpo­ rate whistle-blowing, and even the violation of flagrantly indecent or immoral laws, there may also be a limit to how far it is reasonable to follow one’s own conscience in the workplace.

Honesty and Impartiality Some more distinct values often invoked in CEPs are those of honesty and impartiality, and indeed integrity is sometimes treated as synonymous with these as well. Both of these values are typically held out as ideals primarily for how employees should relate to external stakeholders – ethical codes may say, for instance, that ‘‘we treat our customers and suppliers with honesty, fairness and respect.’’ The value of impartiality or fairness, or more particularly avoidance of personal bias, is often also con­ nected to the issues of conflicts of interest and the acceptance of gifts by suppliers or customers, issues that can obviously cause problems in many types of corpora­ tions and for many types of executives and employees. Interestingly, some recent studies suggest that the recom­ mendations concerning acceptance of gifts given by different corporations’ CEPs actually are extremely var­ ied; indeed this seems to be the issue where you can find the most variation in CEPs. Are honesty and impartiality always the ethical choice in a corporate setting? Much can obviously be said for the virtuous nature of both of these character traits, but one may wonder whether certain commercial situations do not actually warrant at least a bit of dishonesty and partiality. Few would probably castigate the salesman who exaggerates the positive characteristics of his goods

only so slightly, for instance, and many businesses indeed have trade secrets that employees are not expected to share with competitors, customers, or suppliers. Furthermore, the ideal of impartiality obviously seems to clash with the appeal to loyalty to the firm as well; it is not so that employees are normally expected to give exactly equal weight to the needs of their suppliers and customers in, for example, negotiations about prices or delivery dates. Respect A further value often invoked in CEPs is that of respect. Employees are typically urged to respect customers and suppliers, and a central part of many CEPs is also an emphasis on respect toward the other employees in the firm. Specific emphasis on respect is often given in con­ nection with formulations about respecting religious, cultural, and ethnic diversity in the workplace; ethical codes may say something like ‘‘we acknowledge that our members may come from different backgrounds – reli­ gious, cultural, racial, ethnic, etc. – but that all deserve the same respect’’ or they may say that ‘‘we consider social integration in the workplace a strategic value for building an innovative work environment.’’ Respect is an interesting ethical value that unfortu­ nately has not received that much attention by academic philosophers. But perhaps this has to do with the some­ what general or even ambiguous nature of many appeals to respect: a central obscurity, for example, seems to be exactly what treating others with respect entails. Does it entail simply leaving people alone, do you actually have to like everyone equally, or are you just expected not to act on certain prejudices that you may have toward peo­ ple who are different from you? Perhaps not all differences between people actually deserve to be respected; whereas it may make sense to respect most cultural and ideological differences in the workplace; for instance, it may not make sense to respect certain coworkers’ disrespectful treatment of women or adher­ ence to Nazism. After all, not confronting coworkers of the latter kind may have detrimental effects on both the firm and those external stakeholders with which these coworkers interact. Concern for the Environment Finally, concern or respect for the environment has recently become an extremely popular value to be included in CEPs. Inclusions of this value may take many forms: employees may simply be told to consider the environment when they commute to work or print documents, they may be taught how to recycle properly, or more elaborate directives may be designed for how

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hazardous materials are to be treated in corporations with relevant kinds of production. The latest trend is that corporations seek to be certified for their care for the environment – that is, external consultancy firms are brought in to perform audits of the environmental dimen­ sion of the corporation’s activities and then to issue recommendations for either simple or more thorough changes in its operations. Managers and employees may typically be asked to attend green seminars or some kind of training in environmental care as a part of the certifica­ tion procedure. This inclusion of concern for the environment in CEPs is certainly justified in light of the fact that large corpora­ tions stand for a massive part of, for example, the world’s emission of greenhouse gases and use of fossil fuels. However, although employees certainly could contribute by, for example, recycling and considering the environ­ mental effects of their activities more carefully, one may wonder whether all kinds of business can really become environmentally friendly just by introducing environ­ mental considerations in their CEPs. Perhaps more structural measures are needed, or perhaps certain kinds of corporate activities need to be banned altogether.

Concluding Remarks In this article, I have outlined some of the most common points of discussion pertaining to CEPs in particular and ethics in the workplace in general: whether corporations should adopt CEPs in the first place, how CEPs should be designed more exactly, and what specific values of work­ place ethics CEPs should include. Many of these issues, especially the last one, are obviously far more compli­ cated than I have been able to account for in this article, but the reader may take my notes above as a starting point for further discussion. The interest in CEPs among larger corporations around the globe is only likely to increase in the near future. And exactly how such CEPs should be organized, plus whether this is a good thing or not, will probably continue to be hot topics in the business ethics literature. See also: Codes of Ethics; Corporate Ethics, Reputation Management; Corporate Responsibility; Economic Ethics, Overview; Environmental Compliance by Industry;

Improper Payments and Gifts; Professional Ethics; Workplace Ethics: Issues for Human Service Professionals in the New Millennium.

Further Reading Audi R and Murphy PE (2006) The many faces of integrity. Business Ethics Quarterly 16(1): 3–21. Center for Business Ethics (1986) Are corporations institutionalizing ethics? Journal of Business Ethics 5: 85–91. Helin S and Sandstro¨m J (2007) An inquiry into the study of corporate codes of ethics. Journal of Business Ethics 75: 253–271. Jenkins R (2001) Corporate Codes of Conduct: Self-Regulation in a Global Economy. Geneva: United Nations Research Institute for Social Development. Kaptein M (2004) Business codes of multinational firms: What do they say? Journal of Business Ethics 50: 13–31. Kaptein M and Schwartz MS (2008) The effectiveness of business codes: A critical examination of existing studies and the development of an integrated research model. Journal of Business Ethics 77: 111–127. Kaptein M and Wempe J (1998) Twelve Gordian knots when developing an organizational code of ethics. Journal of Business Ethics 17: 853–869. Laufer WS and Robertson DC (1997) Corporate ethics initiatives as social control. Journal of Business Ethics 16: 1029–1048. Reynolds SJ and Bowie NE (2004) A Kantian perspective on the characteristics of ethics programs. Business Ethics Quarterly 14(2): 275–292. Schwartz M (2000) Why ethical codes constitute an unconscionable regression. Journal of Business Ethics 23: 173–184. Sethi SP (2003) Setting Global Standards: Guidelines for Creating Codes of Conduct in Multinational Corporations. Hoboken, NJ: John Wiley & Sons. Weaver GR and Trevin˜o LK (1999) Compliance and values oriented ethics programs: Influences on employees’ attitudes and behavior. Business Ethics Quarterly 9(2): 315–335.

Biographical Sketch Joakim Sandberg is a Research Fellow in Philosophy at University of Gothenburg, Sweden. His main academic interests are moral philosophy and applied ethics, especially business ethics. Joakim’s Ph.D. dissertation critically exam­ ined conceptions of so-called socially responsible investing, and he has more recently been involved in international research projects on investment regulation and microfinance. During 2009, Joakim was a Visiting Research Fellow in Global Ethics at University of Birmingham, UK. Joakim is president of the Philosophy Society at University of Gothenburg and a member of the Gothenburg Animal Research Ethics Committee.

Cosmetic Surgery M Latham, Manchester Metropolitan University, Manchester, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Abdominoplasty A surgical procedure designed to remove excess fat and skin from the abdominal area. Blepharoplasty A cosmetic eye surgery procedure performed to reduce the appearance of droopy, tired, or baggy eyes. Blepharoplasty can be performed on the upper eyelid, lower eyelid, or both. Face lift Also called rhytidectomy, face lift is a plastic surgery procedure used to remove facial wrinkles, sagging skin, fat deposits, or other visible signs of aging for cosmetic purposes.

Cosmetic Surgery, Plastic Surgery, and Cosmetic Medicine Cosmetic surgery has become increasingly popular across the globe. In the United States, 6.6 million cosmetic surgical procedures were carried out in 2008, and the cosmetic surgery and medicine industry in the United States is estimated at being worth $10.3 billion. The British Association of Aesthetic Plastic Surgeons reported that its members carried out 10 738 cosmetic surgery procedures in 2002 and 32 453 in 2007. There are differences between cosmetic surgery, plastic surgery, and cosmetic medicine. Essentially, these differences equate to the clinical nature of plas­ tic surgery, the aesthetic nature of cosmetic surgery, and the nonsurgical but aesthetic nature of cosmetic medicine. Plastic surgery is normally carried out fol­ lowing physical injury, congenital abnormality, disease, or previous surgery. It is generally considered to be of medical necessity in order to alleviate psychological symptoms or to reconstruct the body. Reconstructive breast surgery following mastectomy might use silicone implants for these ends. Cosmetic surgery is typically a response to a patient’s request for the aesthetic enhancement of his or her body. In terms of risk, these patients are exposed to the usual dangers associated with invasive surgery. Thus cosmetic surgical procedures such as breast implants or reduc­ tion, rhinoplasty, face lifts, and liposuction run the risk of heavy blood loss, bruising, infection, deep vein thrombosis, wound healing problems, scarring, hema­ toma, pulmonary edema, and death. There may be

Liposuction The surgical removal of fatty deposits using a suction device. Mammoplasty Altering the size and/or shape of the breasts. Rhinoplasty Performed to alter the shape and/or size of one’s nose. Tummy tuck Also known as abdominoplasty, tummy tuck is a surgical procedure designed to remove excess fat and skin from the abdominal area. Abdominal muscles may also be tightened during this procedure, which is performed to create a flatter, firmer stomach.

additional risks with cosmetic surgery, however: breast implant patients, for example, have been shown to be at a higher risk of depression and suicide. Silicone implants also risk capsule contracture (hardening of the breast). The first U.S. government hearings on silicone implant safety were in 1990. The first court case involving silicone implants was in the United States in 1991, in which patients were awarded $7.3 million in damages from the manufacturer Dow Corning for resultant immune system illnesses. Recipients also complained of chronic fatigue, rheu­ matoid arthritis, lupus, and scleroderma (hardening of skin and internal organs). The numbers of patients requesting cosmetic medi­ cine are large and increasing, but reliable statistics are hard to come by. In the United States in 2008 10.4 million such procedures were carried out. Cosmetic medicine is a term used to refer to treatments and procedures carried out superficially, usually on the exterior of the body, the skin, and soft tissue at the surface of the body. Botulinum toxin (Botox) is applied as a temporary muscle relaxant to make the facial skin appear smooth and unwrinkled. This is used by patients in an attempt to look more youthful. Dermal fillers are also applied to the skin on the face in an attempt to smooth out the skin. Both are applied by injection. Botox is actually a poison that can cause paralysis and death, thus it should be administered by a doctor or under a doctor’s supervision by a qualified cosmetic nurse trained in the process. Other cosmetic medical treat­ ments include the use of lasers to correct eyesight or to remove hair or skin blemishes.

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668 Cosmetic Surgery

Origins and History Cosmetic surgery has a history that differs from that of plastic surgery. The history of plastic surgery is often associated, for example, with plastic surgeons in the World Wars I and II such as the United Kingdom’s Harold Gillies. Though these conflicts were important for developments in surgical techniques, cosmetic sur­ geons were more likely to concentrate on aesthetic nonclinical requests for treatment. Sander Gilman details how cosmetic surgery was initially carried out to correct the disfiguring effects of infection. This gave way to procedures that, chronologically, aimed, first, to conceal ethnic identity; second, to mask aging; and, third, to trans­ form sexual anatomy. He also highlights the importance to the development of cosmetic surgery of the desire by patients to hide any resulting scars in order to pass as genuinely owning the desired characteristic. Gilman reports records of the earliest nose jobs (rhino­ plasty) in Germany in 1460, Italy in 1597, and India in 1794 using an arm flap whereby the patient’s arm is sewn to an opening on the patient’s forehead to enable a skin graft to gradually take place. These operations were usually car­ ried out to improve a patient’s appearance, as, for example, a nose with a sunken bridge indicated the shame of con­ genital syphilis. The Berlin surgeon Johann Dieffenbach (1792–1847) was a central figure in nineteenth-century facial surgery using external excisions on the nose. These operations were carried out before the wider availability of anaesthetics (introduced in 1846) or antisepsis (introduced in 1867) and were highly dangerous. Face lifts (rhytidectomy) began to be carried out at the turn of the twentieth century when the aging process began to be something that patients sought to reverse with the aid of a surgeon. A German surgeon, Eugene Hollander (1867–1932), carried out a face lift on a Polish aristocrat at this time. The first eyelid surgery (blephar­ oplasty) was also carried out in 1906 in Chicago by Charles Conrad Miller. Such procedures were also carried out in Paris. Suzanne Noel (1878–1954), who had worked as a reconstructive surgeon on French sol­ diers during World War I in France, was a well-known Parisian cosmetic surgeon who was particularly popular with female patients. Of historical importance is the relationship between ethnicity and cosmetic surgery. The first tummy tuck (abdominal apronectomy) is attributed to Howard Kelly (1858–1943) in Baltimore in 1899. The same obese woman had a breast reduction in 1896. She was referred to by her surgeon as a ‘Jewess’ at a time in the United States when the visual racial stereotype for ‘primitive’ Jewish women and African American women was of obe­ sity. In the 1880s John Orlando Roe (1848–1915) operated on noses that were deemed too small by Irish immigrants

or too large by Jewish immigrants who wanted to pass as ‘Americans.’ Edward Talbot Ely (1850–85) also operated on patients’ ears. Julius Wolff (1836–1902) also developed rhinoplasty that left no scar on the nose. Operations carried out on African American noses were illegal at the time of the ‘color bar’ Jim Crow, and miscegenation laws. Surgeons in notes and medical literature who referred to white people who did not wish to look ‘Negroid’ as a reason for requesting rhinoplasty may actually have been referring to mixed race patients hop­ ing to pass the color bar if operated on. From the 1940s in the United States small breasts became medicalized and breast augmentation became more prevalent. In magazines and films from this time actresses’ breasts also became the subject of particular emphasis and were sexualized. Silicone was used for breast augmentation in the 1950s in the form of subcuta­ neous injections. It was soon shown to have the risks of migration and infection, hematoma, and visible lines of implantation. In 1963 the U.S. surgeon Gerow developed a plastic bag containing saline that could be implanted based on the blood transfusion bag. Other technical devel­ opments led to an increase in popularity for certain procedures. Liposuction, in which blunt instruments are used to create tunnels to pass between major blood vessels to remove fat with little or no scarring, was developed in France by Yves-Gerard Illoz in 1977 and used in the United States starting in 1981.

International Differences In his historical overview of cosmetic surgery, Gilman also highlighted the influence of ethnicity on comparative national preferences for cosmetic surgery. In Arabic coun­ tries, for example, the large bumped nose is reduced to a straight, small, European nose. Only the nose is empha­ sized, as women’s bodies and faces are veiled. In Brazil the stereotypical characteristics of the African black body, such as the pendulous ‘primitive’ breast, were associated with economic deprivation and lower social status. Brazilian aesthetic surgery has been practiced for more than 150 years. Farik Hakme, a Brazilian surgeon, traces its popularity in Brazil to the mix of races leading to physical disharmonies and requests to balance out physi­ cal attributes such as the mouth, buttocks, legs, or breasts. Upper middle class families were thus found to make requests for breast reduction in Brazil for their teenage daughters in the 1990s. By 2002, however, breast augmen­ tation became the operation of choice in Brazil as a more globalized sexualized aesthetic that emphasized large breasts became more important to Brazilian girls than correcting the appearance of race. Cosmetic surgery is carried out across the world. Each country has its own cosmetic surgeons, and procedures

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can differ in popularity from country to country. But the idea of there being a global aesthetic or ideal look remains of importance. We have noted previously the attempts by Irish and Jewish immigrants to ‘pass’ as Americans by having nose surgery. With the globalization of American culture via celebrity and the film industry, the European or Western look has become iconic throughout the world. This Western look is to have a small, straight, slim nose, small mouth, defined cheekbones, a slim body, a youthful face, and for men a toned muscular body, and for women large, toned breasts. In fact, this iconic look could be said to be located even more precisely in the Northern or Central European look associated with the smart, slim, healthy, active, young, white-collar, urban or suburban, highly civilized, economically successful, educated upper middle class of New York, London, Berlin, or Paris – in short, the ‘jet set.’ The influence of this iconic image has resulted in this Western look being associated with success and high status. In the Far East, cosmetic surgery to achieve it is seen as providing a means of increasing income, improv­ ing marriageability, and increasing personal happiness. This has resulted in the popularity among both men and women of eyelid surgery that gives the appearance of a Western or European rather than Oriental eye. This is not necessarily a new phenomenon, however, and indeed was a feature of cosmetic surgery in Japan throughout the twentieth century. Plastic surgery was only recognized as a medical specialty in Japan in 1975 and cosmetic surgery only in 1978. Western influence on medicine in Japan can be traced back to the Medical Act of 1874, which demanded that all new physicians be trained in Western medicine and surgery, as traditional Japanese medicine forbade the alteration or opening of the body. Yet today in Japan, cosmetic surgery is openly practiced and accepted to the extent that procedures such as eyelid surgery are given as a gift from parents to teenage chil­ dren. In Vietnam cosmetic surgery for breasts and faces was popular before 1973 as women attempted to Americanize themselves. Cosmetic surgery is now popu­ lar there once more among men and women, with the most popular procedures being those on the nose, chin, eyes, and buttocks, but it is largely unregulated. This lack of regulation of clinics and surgeons also applies to China. Since the death of Mao Tse-tung in 1976 and the result­ ing growth in the Chinese market economy, the cosmetic surgery industry has grown, with the most popular sur­ gery being nose augmentation and blepharoplasty. Other Westernizing procedures popular in Japan and Vietnam are skin lightening and nose lengthening. Even legs are lengthened by up to 10 cm slowly and painfully through the use of external mechanical procedures. The influence of Hollywood in setting global stan­ dards of beauty should not be underestimated. It has set a standard via media coverage of celebrities and

supermodels. In the past decade particularly, television shows that follow the daily lives of ordinary people and improve their appearance have become widespread. These ‘reality TV’ ‘makeover’ programs carry out expen­ sive cosmetic surgery and medical procedures invariably on working-class women who request procedures that will make them look slimmer and younger and resemble their own country’s celebrities’ appearance.

Ethics Acceptable Surgeries Requests for surgery for rejuvenation or other cosmetic procedures are invariably seen by surgeons and regulators as being unnecessary on clinical grounds. States with health provision models such as the United Kingdom’s National Health Service (NHS) enjoy limited resources and ration the provision of medical procedures. Cosmetic surgery is one such procedure that is not available to NHS patients and has to be paid for privately. It is seen as unacceptable to this extent. In cases of body dysmorphic disorder, patients can become obsessed with only slight or apparent defects in their appearance and hence find normal life extremely difficult. They may have repeated surgeries to correct apparent defects and are left feeling ultimately dissatisfied after surgery. They might pay for expensive operations when more appropriate treatment might be counseling, medication, or psychotherapy. Questions should be asked about whether the patient was depressed, abused drugs or alcohol, had social phobias or obsessive-compulsive dis­ order, how often they thought about their appearance, and how this affected their lives. There would appear to be a graph or spectrum of acceptability where certain reasons for cosmetic surgery are deemed to be less acceptable in some medical and ethical quarters. This might include the request for breast implants for cosmetic enhancement only rather than as part of reconstruction after mastectomy. Within this spec­ trum of acceptability questions are also asked, for example, about the suitability of operating on minors, even with parental consent. We have already seen fit to regulate in a specific way in relation to minors. Tattooing a minor is unlawful under the Tattooing of Minors Act. The Genital Mutilation Act also makes specific provi­ sions to outlaw the practice of genital mutilation of a minor in the United Kingdom. The state has been extremely protective in the UK when it comes to the definition of which behaviors might be considered to be harmful. Thus a patient cannot con­ sent to being harmed or treated unnecessarily, for reasons of public policy, and any individual who inflicts harm on another person cannot say that this harm was requested, that the victim ‘consented.’ However, there is a fine line to

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be drawn between protecting the patient from the doctor (thus ensuring patient autonomy) and allowing the patient to decide for her- or himself whether she or he will be harmed. This affects cosmetic surgery patients, as they are more likely than others to request nonclinical treatment that they judge subjectively to be aesthetic and life-enhancing. Furthermore, if a private patient is to fund her or his own treatment, it is questionable whether the state should be able to prevent that patient from choosing particular treatments. This raises the question of what role the government should play in providing protection for a patient. Self-Regulation There is no single professional body in the United Kingdom that monitors cosmetic surgery and to whom a prospective patient could apply for information. However, three organizations represent the interests of cosmetic surgeons: the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), the British Association of Aesthetic Plastic Surgeons (BAAPS), and the British Association of Cosmetic Surgeons (BACS). The first two are recognized by the Surgical Royal Colleges; their members undergo 6 years of training in plastic and cosmetic surgery and are eligible to take up Consultant Appointments in Plastic Surgery in the NHS. BAAPS’ full members have had a substantive consultant post in an NHS Plastic Surgery unit and per­ formed cosmetic surgery. In the United States, surgeons are overseen by the American Society of Plastic Surgery, from which information about licensing and complaints history is available. One argument in favor of self-regulation (or no reg­ ulation) is that it takes power away from the medical gatekeepers given clinical discretion over access to treat­ ment and puts such power into the hands of patients themselves. However, this also means that a patient could be left without the protection of a statutory licen­ sing authority governing standards and qualifications. Tort law protects patients from negligent or substan­ dard treatment and enhances patient safety by requiring adequate information disclosure. Case law has highlighted the importance of fully informed consent in the encounter between the cosmetic surgeon and her or his patient (O’Keefe v. Harvey-Kemble). Cosmetic surgery patients are also protected to some degree given that the actions of all health professionals are circumscribed by criminal law. As patients of cosmetic surgery are almost always treated at private clinics in the United Kingdom, this also provides a particular context for treatment decisions that can pose additional risks. Initial consultations at these private clinics may be with a receptionist on the premises or with a cold-calling member of a sales team over the phone. This contrasts with the advice that a qualified

health professional should ideally give about the appro­ priateness to a patient of a particular treatment and its known clinical risks. Private sector advertising and mar­ keting may also raise false expectations among patients. Since patients are unlikely to have been referred by their GP, self-referral risks nondisclosure to the surgeon of important contraindications. Additionally, in private practice, there are almost always no waiting lists for treatment. This leaves the patient with less time to reflect on the treatment and, in the case of invasive surgery on nonclinical grounds, to reconsider having the treatment altogether. The majority of payments to compensate patients of cosmetic surgery who have suffered from negative out­ comes are made out of court. This makes it more difficult to monitor numbers and causes. However, a report by the Medical Defence Union published in February 2003 pro­ vided clear evidence that cosmetic surgery was certainly resulting in disfigurement and serious injury. More than 40% of successful claims were on grounds of dissatisfac­ tion with the results of operations, with scarring, at 24%, and infections, at 12%, the next biggest causes. Over a 13-year period, £7 million was paid out to 264 patients, and there were significant numbers of cases where there had been a failure to warn the patients of the risk of complications arising.

Patient Autonomy The principle that patients should be autonomous is a central tenet of medical law and ethics. Autonomy gives rise to certain interests and certain rights: the interests of self-determination and bodily integrity, and the moral and legal right to consent to and to refuse medical treat­ ment. Naturally, the autonomous cosmetic surgery patient shares this interest in self-determination and bod­ ily integrity and thus, the moral and legal right to consent to and to refuse treatment. Autonomy can be taken to refer to the ability of patients to make their own fully informed decisions about their treatment, necessitating information about choices of procedures, standards of treatments, their risks and possible outcomes, and the ability of the health professional to carry them out. A patient’s physical integ­ rity is respected in this way. The establishment of the importance of the principle of the autonomy of the person is generally attributed to Kant. Thus the autonomous patient should be able to refuse or request a particular medical treatment. To be autonomous, patients must be treated with respect, and thus should be fully informed and listened to and have their confidentiality fully respected. Of para­ mount importance is that they should give their consent voluntarily and without coercion.

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The patient should be able to refuse treatment, but how far should the doctor be able to refuse to give treat­ ment asked for? Ideas of autonomy have not only been related to the individual self-expression of the patient; indeed, they have been used to validate arguments for clinical independence and discretion. O’Neill has argued, following Kant, that autonomy goes beyond individualism and self-expression and involves the exercise of duties, obligations, and respect for other moral agents and their own rights. Stirrat and Gill contrast O’Neill’s ‘principled autonomy’ with the idea of ‘individualistic autonomy’ as advanced by John Harris, among others. Alongside fem­ inist ethicists, they advance the argument that medical ethics should always be set in the context of relationships and community. They relate principled autonomy to the idea of the doctor being able to fulfill his or her own autonomy when making treatment decisions. They argue that in some instances the doctor may have his or her own reasons for refusing to offer the requested treat­ ment such as its unlawfulness, its inappropriateness on clinical grounds in terms of treatment and risk, or its cost if on the NHS.

Treatment Abroad It has been estimated that up to 30 000 UK citizens travel abroad annually for private cosmetic surgery at reduced prices, known as health tourism. These patients are even less able to verify qualifications or to be provided with aftercare. Indeed, a number of these operations result in such serious problems that they need to be remedied in NHS hospitals through reconstructive surgery, thus incurring indirect costs. The BAPRAS reported that at least 208 patients were seen by NHS plastic surgeons in 2007 for complications arising from cosmetic surgery abroad, 26% of whom had to have emergency surgery.

Teenagers A significant number of cosmetic surgery patients are in the 13–19 age bracket. In the United States the American Society of Plastic Surgeons (ASPS) reported that 219 000 cosmetic surgery procedures had been car­ ried out on teenagers in the 13–19 age range in 2008. Exact figures for teenagers in the United Kingdom are harder to come by. The President of the BAAPS, Douglas McGeorge, argued in August 2008 that teenage cosmetic surgery numbers in the United Kingdom were very low. He reported little or no rise in enquiries from under 20s since 2003. The few surgeries that did take place were to address deformities or conditions that were having a significant impact on their quality of life, such as a considerable breast asymmetry (where one breast does not develop at the same rate as the

other, or at all), breast reduction, or, most commonly, pinning back prominent ears. Zuckerman and Abraham reported that liposuction and breast implants were the most popular cosmetic procedures with teenagers. They highlighted the lack of persuasive empirical research on the mental health ben­ efits of plastic surgery for teenagers and presented the long-term financial and health implications of implanted medical devices with a limited life span. Ethical questions have been raised about the extent to which teenagers can and should be autonomous patients. In UK legislation, the consent of a teenager over 16 is equivalent to that of an adult (Family Law Reform Act 1969, s. 8). The common law governing the autonomy of teenage patients under 16 and cosmetic surgery is largely covered by a House of Lords decision in the case of Gillick v. West Norfolk and Wisbech AHA. This means that a teenager under 16 needs to demonstrate to a surgeon that he or she is mature enough to understand what cosmetic surgery entails physically and emotionally: to understand what is being proposed, what it entails, and what it means for him or her. A Gillick competent minor has the right to confidentiality from the surgeon, but that surgeon might face a civil suit for battery or prosecution for criminal assault without parental consent in cases of extremely invasive or risky surgery. Feminist Approaches Feminist critiques of cosmetic surgery offer a framework for assessing the regulation of cosmetic surgery. However, there are important differences in emphasis between them. Some have emphasized the effects of systemic cul­ tural pressures on women to meet stereotypical gendered ideals of beauty. They are critical of a prevailing culture where patriarchal pressure and medicalization limit women’s ability to control what happens to their bodies and are consequently hostile to medical provision of cosmetic surgery per se. Feminist scholars who have been critical of the effects of systemic cultural pressures on women have been keen to discourage patients from undergoing cosmetic surgery because of what they see as an insidious Western culture that emphasizes a particular female aesthetic. Such theorists have questioned the validity of consent when women might feel under pres­ sure to conform to a certain physical ideal. In contrast, liberal feminists have argued that patriar­ chal cultural pressures are better resisted by promoting individual choice. Liberals speak up for the agency of cosmetic surgery patients as those who can make autono­ mous choices and display control and self-determination. Those who request cosmetic surgery invariably perceive these medical procedures as broadening patient choice and as no more hazardous than other surgeries. A growing number of liberal feminist writers have offered a

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perspective that attempts to understand this choice and recognize that these decisions can be made autonomously by cosmetic surgery patients. They therefore highlight the agency of cosmetic surgery patients: their ability to be selfgoverning and self-directed in their treatment decisions. Kathy Davis, for example, has pointed out that women’s use of cosmetic surgery demonstrates their objectification of their own bodies and their struggle to be inside and in control of (the image of) their own body, ‘to be embodied subjects rather than mere bodies.’ In short, women are attempting to be their own bodies and to control their own identities. Davis has been critical of feminist theory on the oppressiveness of the beauty indus­ try that portrays women as ‘cultural dopes’ and fails to acknowledge the extent to which women know the risks and limitations of body modification. Kathryn Pauly Morgan has argued that the choice women make to use cosmetic surgery does not lead to full womanly autonomy but leads instead to dependence on experts, the cosmetic surgeons, who are usually men. Kirkland and Tong, however, have argued that women can undergo cosmetic surgery for their own personal and indeed legitimate and rational reasons and underline the importance to autonomous decision making of counseling and constructive dialogue between surgeon and patient in order to ascertain whether the reasons for surgery are in fact socially constructed. In this type of encounter between patient and cosmetic surgeon, the feminist cosmetic surgeon becomes a possibility. Indeed, one of the pioneers in plastic surgery in the 1920s and one of the first surgeons to take seriously the cosmetic requests of her female patients was a French feminist activist – Dr. Suzanne Noel. A middle ground between these two polarized feminist positions could build on the common element found in the writings of liberal feminists, feminist ethicists, and those feminists who have emphasized autonomous selves and relational autonomy. What they each appear to emphasize in relation to cosmetic surgery regulation is the importance of constructive dialogue between patient and surgeon. This dialogue would enable a more fully informed consent to be given where the true risks of treatment to that particular patient are fully explained by the surgeon. In addition, this would encompass femin­ ist counseling. What is important perhaps is to recognize that ‘others’ in many different types of relationships may perform a valuable role that can in fact enhance auton­ omy. Social support networks, communities, friends, and family are all examples of such relationships. A way for­ ward is perhaps to see the encounter between patient and surgeon or counselor as not necessarily hierarchical or antagonistic. The type of autonomy that could serve as a useful principle of regulation is one that entails fully informed consent, constructive dialogue and counseling that build self-trust and recognize structural oppression,

professional self-awareness, and ideally an institutional commitment to work against damaging social and cultural pressures.

Regulation In England and Wales, regulation of the private cosmetic surgery sector has been part of a more general schema of reforms of the health-care professions, namely, the Care Standards Act 2000 and the Health and Social Care (Community Health and Standards) Act 2003. The cos­ metic surgery sector is also governed by the National Health Service Act 2006 and the Health and Social Care Act 2008. The supervision of this regulation remains largely in the hands of private surgeons and clinics them­ selves and operates within a regime of self-regulation. Regulators have focused on enhancing standards within this regime of self-regulation, and have advocated clinic inspection and the monitoring of professional qualifications. In relation to questions of autonomy, under the Care Standards Act 2000 patients are to be interviewed pre­ operatively by the consultant surgeon and provided with written and verbal information about results and risks. They are also to be offered counseling and a 2-week ‘cooling-off’ period before treatment. Another theme that runs through criticisms of the industry and its regulation, and through statutory responses to these, is that of the risk to cosmetic surgery patients from unqualified surgeons and from private health establishments of a low clinical standard. As early as June 1994, a 10-min rule bill, the Regulation of Cosmetic Surgery Bill, was introduced by Ann Clwyd MP to estab­ lish registration procedures for cosmetic surgeons in order to set minimum standards of training and practice. The Care Standards Act itself was a wide-ranging statute that set out to regulate private and voluntary health and social care and replaced the Registered Homes Act 1984. The Health and Social Care Act 2008 establishes a new body called the Care Quality Commission that is to be respon­ sible for the registration, review, and inspection of certain health and social care services in England and replaces the CHAI and CSCI, established under the Health and Social Care (Community Health and Standards) Act 2003. The Act creates a system of registration for providers and managers of health care, which a person will not be able to deliver unless that person is registered to do so, with the threat of sanctions such as penalty notices for non­ compliance and the power to suspend registration. The commission is also given powers of entry and inspection of premises. This offers an opportunity for government officials to ensure that standards are high enough to optimize patient safety, as well as their autonomy.

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The ideal amount of information for cosmetic surgery patients provided by an independent body might be the following: the amount of experience a surgeon has had in each particular procedure, whether rhinoplasty, face lifts, or breast augmentation; contact details of appropriate counselors of varying types, with access to feminist coun­ selors; and testaments from patients as to their opinion of the clinic or surgeon, positive and negative. This is the minimum that a government agency such as the Department of Health should expect to provide to patients. This might go further than the current UK legislation on cosmetic surgery in terms of balancing the risks run by patients and their autonomy.

The Future This use of technology to create the perfect body can be taken further, feminists have argued, to create the ‘cyber­ woman.’ These new imagined individuals, part human, part machine, challenge binary and oppositional discourses such as male/female, human/machine, and human/animal. Donna Haraway’s ‘Manifesto for Cyborgs’ is seen as the precursor of this debate. In her manifesto, Haraway saw the cyborg as the solution to problems produced by gender inequality. Feminist theorists would not find a time or place where structural inequality was not the norm. There was no Garden of Eden, no mythical organic natural place. The cyborg was an example of technoscience, and it was this that had the ability to address and redraw bound­ aries between human beings, animals, and machines – between natural and artificial, natural bodies and artificial bodies, and natural humans and artificial humans. As a cyborg a woman could be anything she wanted. The cyborg or cyberwoman would enable women to reinvent the category of woman, to question the limits put on the definition of womanhood by society. This was a prospect for the future, not the past. Technologies we are already using include the pace­ maker – in use for at least 30 years now – and other mechanical prosthetics. Their effects on society do not appear to be serious. We are also much closer to using techniques such as xenotransplantation and embryo stem cell therapy. All of these might be used in the future for cosmetic purposes such as rejuvenation. Is it too close to science fiction to look at cosmetic gene therapy of surgery in utero? Other future possibilities for cosmetic surgery might be the incorporation of genetic medicine or nanomedicine to alter the body from within. This might enable physical, even psychological, cosmetic alterations for the patient. Cosmetic surgery is already an area fraught with present and as yet unknown ramifications for the individual and for society. Whether any of these or other cosmetic possibilities can be contained is unclear in the face of patient demand and the development of new technologies, but the

importance of obtaining the right balance between risk and autonomy in this area will remain fundamentally important to ethicists, regulators, and patients. See also: Cyborgs; Feminist Ethics.

Further Reading American Society of Plastic Surgeons (2009) Report: National Clearinghouse of Plastic Surgery Statistics. Dobke M, Chung C, and Takabe K (2006) Facial aesthetic preferences among Asian women: Are all Oriental Asians the same? Aesthetic Plastic Surgery 30(3): 342–347. Dyson R (2006) Cosmetic surgery tourism. Financial Mail,13 June. www.thisismoney.co.uk Gilman SL (2000) Making the Body Beautiful: A Cultural History of Aesthetic Surgery. Princeton, PA: Princeton University Press. Gimlin D (2000) Cosmetic surgery: Beauty as commodity. Qualitative Sociology 23(1): 77–98. Haraway DJ (1991) Simians, Cyborgs and Women: The Reinvention of Nature. London: Free Association Books. Koot VCM et al. (2003) Total and cause specific mortality among Swedish women with cosmetic breast implants: Prospective study. British Medical Journal 326: 527. Latham M (2008) The shape of things to come: Feminism, regulation and cosmetic surgery. Medical Law Review 16(3): 437–457. Medical Defence Union (2003) Review of Claims from Plastic and Reconstructive Surgery, 6 February. National Institute for Health and Clinical Excellence (2005) Obsessivecompulsive disorder: Core interventions in the treatment of obsessive-compulsive disorder and body dysmorphic disorder. November 2005. Nightingale K and Kay S (2002) Cosmetic surgery receives a face lift. Law Society Gazette 99. O’Neill O (2002) Autonomy and Trust in Bioethics. Cambridge: Cambridge University Press. Sheldon S and Thomson M (eds.) (1998) Feminist Perspectives on Health Care Law. London: Cavendish Publishing Ltd. Stirrat GM and Gill R (2005) Autonomy in medical ethics after O’Neill. Journal of Medical Ethics 31: 127–130. Zuckerman D and Abraham A (2008) Teenagers and cosmetic surgery: Focus on breast augmentation and liposuction. Journal of Adolescent Health 43(4): 318–324.

Relevant Website http://www.baaps.org.uk – The British Association of Aesthetic Plastic Surgeons.

Biographical Sketch Dr. Melanie Latham is a Reader in Law at Manchester Metropolitan University School of Law. She has published widely on reproductive rights, particularly in relation to gender, includ­ ing the monograph Regulating Reproduction: A Century of Conflict in Britain and France (MUP, 2002). She currently researches and publishes in the area of cosmetic surgery. In 2004–05 she received funding from the Arts and Humanities Research Council to compare British and French attitudes to body modification. More recent publications have considered cosmetic surgery in relation to feminist theory, UK regulation, and nanomedicine, including atham (2008). Throughout this time, themes running through her research have been those of gender, the body, auton­ omy, state regulation, and more recently aesthetics.

Cosmopolitanism S van Hooft, Deakin University, Burwood, VIC, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Agency That quality of human beings by virtue of which they are able to consider and decide on their own course of action and put such decisions into effect. Autonomy That quality of human beings by virtue of which their agency is not interfered with by social or political pressures so as to violate their right to live their own lives. In moral theory, the term is also used to designate the ability that all moral agents have to decide for themselves the moral principles under which they will act. Citizenship That status of human beings, based on membership of a given nation-state, by virtue of which they have rights, privileges, and responsibilities related to that state. These include political rights such as the franchise and social rights such as income support when unemployed. Communitarianism A set of philosophical views that sees itself opposed to individualism and universalism. Its central tenet is that moral values are acquired through upbringing in the community and that, therefore, people owe their first allegiance to that community and its moral norms. Humanitarian intervention Involvement on the part of one nation-state in the internal affairs of another, usually but not exclusively military, for the purpose of protecting human rights or delivering humanitarian aid in the affected state. International law Statutes, agreements, and treaties that bind nation-states and reduce their sovereignty. In the absence of an international policing power, adherence to international law is voluntary but can be backed by sanctions affecting trade and international cooperation. Multiculturalism Policies within states that allow cultural, religious, and linguistic minority communities within those states to practice their way of life within the constraints of national law. It is opposed to policies of assimilation. Nationalism A set of attitudes and practices that accords high normative value to the nation-state and that can lead to irrational degrees of allegiance to the

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domestic and foreign policies – especially military – of that state. Naturalism A set of philosophical beliefs that explains the world in terms of the natural processes and laws of physics theorized by science and rejects metaphysical explanations or the salience of any supernatural agents. In moral theory, naturalism rejects any sourcing of morality in God’s command or any other metaphysical entity. Patriotism Allegiance to one’s ‘people,’ understood as the ethnic, religious, linguistic, or cultural community of which one is a part. This grouping is often aligned with that of the nation-state in which one resides, but there is no necessary link between the two. Peace Minimally, an absence of armed conflict between nation-states, but more fully, a state of cooperation and friendship between states. In this age of terrorism, it can also be defined as an absence of violence resulting from the rule of law within states. Refugees People crossing national borders because they are fleeing real or threatened persecution or extreme economic hardship in their countries of origin. Sovereignty The right of nation-states to conduct their own internal affairs without outside interference and to defend their borders against intrusion from others. State Also referred to as ‘nation-state’; a legal entity with territorial boundaries and a defined population and the rights of sovereignty. Supererogatory Ethically laudable but not required by the norms of morality. Tolerance An attitude of acceptance of people with different linguistic, religious, and cultural traditions from those of oneself; central to the practice of multiculturalism. Values pluralism The view that nation-states and the entire world comprise peoples and individuals with differing moral, cultural, and religious views, where those views cannot be rationally reconciled or reduced to a common core of values or doctrines.

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Introduction The philosopher Diogenes the Cynic, in the fourth cen­ tury BCE, was the first person known to have described himself as a cosmopolitan. Asked where he came from and where he felt he belonged, he answered that he was a ‘‘citizen of the world’’ (kosmopoliteˆs). There are many dimensions to being a citizen of the world and many ways to realize such a stance. Accordingly, the term ‘cosmopolitanism’ has been used to designate a variety of positions. We can distinguish at least three kinds of cosmopolitanism: lifestyle cosmopolitanism, political cos­ mopolitanism, and ethical cosmopolitanism.

Lifestyle Cosmopolitanism Contemporary forms of lifestyle cosmopolitanism involve an interest in world cultures and religions, artistic pro­ ductions from throughout the world, travel, and crosscultural urban lifestyles. In an era of globalization, the whole world becomes available to people in economically developed societies through their television screens, newspapers, and the Internet. Sophisticated people enjoy world music, foreign films, and entertainments drawn from throughout the world. Although traditionally the novel has been seen as articulating national identity, globalization is currently prompting the emergence of a new subgenre of the novel that is adept at imagining global community and the travails of ethnic diasporas. The very notion of national identity has become fluid as people live in multicultural societies, enjoy the cultural productions of immigrant communities, and travel to all areas of the world in order to participate – even as fleeting outsiders – in forms of life very different from their own. In past times, people with such international outlooks were often deemed as footloose and insufficiently embedded in their own national cultures and forms of identity. Like Jews and Gypsies, they were seen as having an insufficient sense of loyalty to the nation-state. If nationalism was a cultural development especially strong in the Europe of the nineteenth century, cosmopolitanism was seen as its undesirable obverse. However, with a combination of dismay at the horrors perpetrated in the name of nationalism in the two World Wars of the twen­ tieth century and an embrace of the international outlook required by economic globalization, cosmopolitanism has become, in the twenty-first century, a position that can be deemed ethically positive – one that embraces the cul­ tures of others in a spirit of tolerance and dialogue and that accepts cultural and even moral pluralism through­ out the world and refuses to impose its own value perspectives onto the lives of distant others. Lifestyle cosmopolitans are not afraid or dismissive of the

difference of others. They do not, like missionaries, seek to replace exotic cultures and practices with their own, and they do not, like some executives of multinational corporations, see the world simply as a borderless arena for exploitation. Rather, they are sensitive to, and seek to preserve, the ways of life of exotic, indigenous, and distant peoples. However, there continues to be tension between such a global outlook and the claims of local belonging. The latter claims are today made in the name of communitar­ ianism. If the nation-state is not always the appropriate object of loyalty for communitarians, one’s ethnicity, one’s religious community, one’s language community, or whatever other grouping might help to define one’s identity certainly is appropriate. Communitarians stress the embeddedness of individual persons in their identityforming communities and argue that just as one’s values flow from these community contexts, so one’s loyalty and solidarity should be primarily directed upon them. However, although many cosmopolitans can acknowl­ edge these more local affiliations, they also embrace forms of identity, normativity, and loyalty that are more universal in scope. Later, we explore the practical impli­ cations of this stance more fully.

Political Cosmopolitanism Political cosmopolitanism applies the international out­ looks just described to the context of international relations and global politics. There is a fundamental con­ tradiction among the moral concepts that apply to international relations. The treaty of Westphalia of 1648 brought the Thirty Years’ War in Europe to an end by defining the rights of rulers over states and limiting their rights in relation to other states. It established the notion of a nation-state as a political entity with the right to rule itself in whatever way it saw fit and to defend its territor­ ial and national integrity against other, competing states. European powers spread this concept to the rest of the world through colonization and conquest, and it has become firmly entrenched in international law and in the charter of the United Nations (UN) as the concept of the sovereignty of states. For many political theorists, especially those of a realist persuasion, this notion of state sovereignty is the bedrock of international law and licenses any diplomatic, military, and even commercial activities that extend the state’s influence and power and enhance its national interest. In this outlook, readiness for war becomes an inescapable stance for nation-states that wish to preserve their identity and capacity for self-deter­ mination in a hostile world. Moreover, national governments are justified in rejecting as violations of their sovereignty any interference in their internal affairs

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on the part of other nation-states or other outside agen­ cies such as non-governmental organizations (NGOs). This assertion of sovereignty, however, is called into question by the Universal Declaration of Human Rights (UDHR) propagated by the UN in 1948. Not only does this declaration list a significant number of rights that it says are held by all human beings just by virtue of their being human beings but also it gives to all nations of the world the responsibility to defend and uphold those rights. This suggests, and subsequent declarations by the UN confirm, that states have a responsibility to defend and honor the human rights of not only their own citizens but also the citizens of other states in the event that the governments of those states do not themselves defend those rights. If a tyrant oppresses his own people or a minority group within his country, the defense of uni­ versal human rights can license what has come to be known as humanitarian intervention. Such interventions may range from the provision of food aid for starving populations to military invasion in order to remove a government that violates the rights of its people. In this way, the rights of state sovereignty come into conflict with the universal human rights of individuals. The central premise of political cosmopolitanism is that in this conflict, preference should be given to the rights of individuals rather than the rights of states. We return to the practical implications of this position when we discuss ethical cosmopolitanism. Closely linked to this stance is the realization that many international wars (as opposed to civil wars, rebel­ lions, and wars of national liberation) are based on the need to project the power of the nation-state onto the world in pursuit of its national interest and sovereignty. Accordingly, cosmopolitans argue that the ideal of lasting international peace requires a reduction of the rights associated with sovereignty and of the autonomy of states. The specific proposals that flow from this stance will vary. At one end of the range of possibilities will be advocacy of world government. Just as Thomas Hobbes argued that a civil society could only emerge from a violent state of nature if a Leviathan with absolute power ruled such a society, so it is argued that global peace and the preservation of human rights can only be achieved if the analogous state of nature that exists in a world occupied by mutually aggressive nation-states were transformed into a global society bound by international laws that could be imposed and policed by a supreme power. However, even Immanuel Kant, who was possibly the first modern philosopher to advocate this idea, quickly came to realize that the potential for global tyranny in such a proposal was too great to be acceptable. Without any countervailing force to contain the power of such a global authority, the risk of oppression and exploitation imposed by a political elite on a global scale is simply too great for any liberal-minded political theorist to accept. Of

course, if you consider that you are possessed of all the requisite knowledge and insight to rule the world justly, you will not adopt such an apprehensive position. Advocates of Platonic philosopher-kings, the universal rule of Christendom, a worldwide Caliphate, or the inter­ national dictatorship of the proletariat feel no such inhibition. Another argument against global government points to the practical and instrumental necessity of states. It is argued that there need to be territorially based legal jurisdictions with the prerogatives and duties of states in order to secure the rights of citizens and just distributions of social goods, and that these duties could not practicably be performed by a global government. Just as we need municipal authorities to clean the city drains and dispose of garbage, and provincial governments to administer schools and hospitals, so we need national government to police laws (many of which will be based on traditions and norms that are not applicable universally), gather taxes and distribute social goods in light of local concep­ tions of the good life, regulate and defend the property rights of local corporations, and secure human rights in forms that are acknowledged in the relevant regions. Although many of the norms that governments ought to apply have universal validity, their articulation and appli­ cation will be locally colored. In addition, claimants of human rights need local authorities to appeal to in the event that their rights are violated. Moreover, it is argued that no matter what internationally binding laws and instruments are put in place that might limit state sover­ eignty or even establish a global government, it is only the governments of nation-states that are empowered to enter into such agreements. For his part, Kant advocated a worldwide federation of sovereign states in which states would bind themselves to a number of basic rules of international cooperation, including rules for the proper conduct of war, in order to secure lasting peace between them. Central to his prescriptions was the idea that democratic states are more likely to live at peace with each other than absolute monarchies. Peoples capable of democratic self-determi­ nation would be less likely to go to war with other peoples because they would know that they themselves would suffer the costs of doing so. Whereas monarchs can usually protect themselves from these costs, ordinary people cannot. This link between international cooperation and forms of government has been elaborated by John Rawls in his book, The Law of Peoples, in which he argues that if the representatives of peoples were to gather together to design an international system of coopera­ tion, they would endorse a set of principles that would embrace both sovereignty and any limitations upon such sovereignty as would guarantee lasting peace between them and the protection of human rights. Rawls did not

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think it necessary that all peoples entering into such a compact would need to be governed democratically. Even if their governments were despotic, it would be enough to secure peace and cooperation if their repre­ sentatives were reasonable in their approach to the imagined global contract. Many cosmopolitan thinkers have criticized Rawls’s account on the ground that it is still statist in form. It gives too much credence to the alleged values of national sovereignty and to the pre­ rogatives of ruling elites and thereby gives insufficient weight to the full range of human rights expounded in the UDHR. However, what is valuable about Rawls’s contribution to the debate is his recognition of global values pluralism. Not only does the world contain gov­ ernments of many forms – many of them despotic and illiberal – but also the world contains many political philosophies, including theocratic, autocratic, and lib­ eral. Some illiberal governments may yet be decent in that they provide for a minimal set of basic human rights for their citizens. A peaceful world must be one in which there is tolerance and coexistence despite these differ­ ences. Kant’s federation of democratic states would not cover much of the earth’s surface. A genuine world community cannot be based on the assumption or global imposition of Western liberal values. Political cosmopo­ litanism should not be seen as liberalism become imperialistic. Whatever the quandaries that cosmopolitanism poses for political theory, however, the fact is that the world community has evolved in such a way that state sovereignty is, in fact, being reduced. In the context of globalization, there is an ever greater need for international law and other binding forms of coop­ eration. Even if it is merely to protect property rights in cross-border commercial transactions, all countries have to respect international legal jurisdictions. Newly emerging global needs such as those relating to the protection of the environment, the sustainability of ocean fisheries, standards of interconnectivity in com­ munications and technology, along with the regulation of international financial arrangements have led to an acceptance of global institutions such as the UN, the World Bank, the General Agreement on Tariffs and Trade (GATT), agreements on the control of nuclear arms, and so forth, which all serve to reduce the scope of state sovereignty. If advocacy of global government is one end of the spectrum of possibilities within political cosmopolitan­ ism, then advocacy of global democracy is the other. What is envisaged here is that delegates to such international institutions as mentioned previously should not be appointed by the political elites that rule the countries from which they come but, rather, should be elected by the peoples that they represent. If bodies such as the UN could include a people’s

chamber to which delegates are directly elected by the world’s peoples, a new level of responsiveness to democratically formed global political agendas could be shown by these bodies. The European Parliament is often offered as an example of what might be possible along these lines. Whether this proposal is feasible in the context of current global politics is not a question that political philosophers of a more utopian bent allow themselves to be deflected by.

Ethical Cosmopolitanism It is clear that moral concepts and ethical considerations hover on the horizons of the issues central to political cosmopolitanism. The most central of these is the concept of human rights. This concept, in turn, expresses a central tenet of ethical cosmopolitanism – that all human beings are of equal moral value irrespective of nationality, eth­ nicity, religion, gender, or race. Ethical cosmopolitanism demands of every individual throughout the world that they take the rights of all other individuals in the world into consideration in every one of their morally signifi­ cant decisions. Ethical cosmopolitanism is a form of global moral egalitarianism that forbids any form of discrimina­ tion on the basis of nationality, ethnicity, religion, or race except where such discrimination could be justified on globally valid principles of justice. Ethical cosmopolitan­ ism is more than a set of globally valid norms, however. It is also evinced in a typical set of attitudes. Against Nationalism Cosmopolitans are suspicious of nationalism, all forms of chauvinism, and even patriotism. They criticize the insu­ larity of many education systems in which the history, geography, and culture of the students’ own country are taught almost to the exclusion of those of other countries. Ignorance of other peoples is identified as a source of nationalistic chauvinism. To see oneself as a citizen of the world requires that one be knowledgeable about that world. Whereas many ethicists, especially those of a com­ munitarian persuasion, regard patriotism – understood as love of one’s country – as an important virtue, cosmopo­ litans argue that it leads too often to an uncritical admiration of one’s country and an aggressive or even militaristic pursuit of one’s country’s goals at the expense of the valid aspirations of others. Although it is an impor­ tant and valuable psychological fact about most people that they develop a love of the land of their birth (or the land they have adopted if they are immigrants) and a respect for its national symbols and historical milestones, this should be seen as a formation of one’s identity rather than as an object of moral commitment. A sense of belong­ ing to one’s country or one’s people seems to be valuable

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among more traditional peoples, whereas sociologists describe the contemporary sensibilities of people in developed and multicultural societies as rather more fluid. In such modern societies, loyalty to land and people had to be manufactured in the form of nationalism through the creation of national myths. However, national myths are an ideological pastiche of traditional and ethnic loyalties. Ethical cosmopolitanism argues that neither traditions nor myths should be accepted without moral scrutiny. All forms of loyalty to people, land, or nation should be tested against the demands of universal human rights and of global justice. It may be existentially valu­ able to identify oneself with one’s country, to take pride in its achievements, and to share in its language, culture, and traditions, but it does not follow that one is morally obliged to give preference to one’s country’s interests without evaluating the moral quality of those interests, or that one is obliged to discriminate in any way in favor of one’s compatriots. One problem that is often missed in debates about nationalism and patriotism is that the notion of ‘country’ as it appears in these debates is ambivalent. It may refer to the land, history, or clan with which one identifies – along with its language, religion, and folkways – or it may refer to the nation-state of which one is a citizen. However, the people to which one believes one belongs and the state of which one is a citizen seldom correspond. National bor­ ders are notoriously arbitrary. National citizenship is preeminently a legal, pragmatic, and instrumental matter. One’s nationality as specified on one’s passport will not by itself have the same kind of emotional importance as one’s identification with one’s people. It merely identifies the legal jurisdiction to which one is bound and the state that is obliged to protect one’s rights and privileges. However, it does establish moral duties. On the basis of the notion of a social contract, one can derive civic obligations from the existence of benefits and advantages provided by the state to which one has those obligations. The basis of these obligations is not any specific cultural tradition or set of communitarian values such as are inherent in patriotism. Rather, the basis of such obligations is to be found in the very concepts of human rights and global justice, which are justifiable universal. Accordingly, cosmopolitans reject the views of nationalists, who view the national economic and military interests of their country as more important than global values such as human rights, global justice, and the protection of the global environment, and they refuse to give their co-nationals any priority in their concerns or responsibilities at the expense of others. If there is tension in political cosmopolitanism between the right to state sovereignty and the duty to protect human rights globally, there is also tension between ethical cosmopolitanism’s stress on the individual as the relevant rights bearer and its respect for the rights of groups that shape the identity of individuals. The individualism

espoused by ethical cosmopolitanism is manifest in its distrust of nationalism and the sovereignty claims of nation-states. Although it can acknowledge the values of community, it prefers to view individuals as the bearers of human rights. If groups have rights – for example, to maintain a traditional way of life within a modern multi­ cultural society – it will only be if the rights of individuals within those groups are protected by such a way of life. In the event that a group’s way of life involved the denial of the individual rights of any of its members – as often happens to women in patriarchal traditions – the latter should be pursued at the expense of the former. However, cosmopolitans also pursue the rights of groups to their identity and the rights of peoples to self-determi­ nation. Although the tensions within these positions cannot be easily resolved, one solution at the political level is to confine the pursuit of self-determination on the part of a people to institutional forms that fall short of statehood. If every self-defined or indigenous ethnic group in the world sought and obtained statehood, the world community would consist of many thousands of small and possibly nonviable nation-states, whereas if such groups sought a limited degree of political autonomy within the constitu­ tional framework of larger federated nation-states, such an absurd outcome could be avoided. However, in cases in which groups seek self-determination in response to exploitation or oppression on the part of the larger national community, or in response to well-founded fear of such persecution, then it may be necessary to protect the indi­ vidual and group rights of that community by providing it with the rights and protections of statehood. As long as the basic rationale is that of protecting individual human rights, cosmopolitans would have no objection to such forms of nationalism. Human Rights Given that cosmopolitans respect basic human rights, view them as universally normative, and acknowledge the moral equality of all peoples and individuals, they will be con­ cerned to justify the universal validity of the concept of human rights. However, they acknowledge that most phi­ losophical justifications of human rights depend on metaphysical views or cultural outlooks specific to parti­ cular peoples and traditions. Thus, in the West, the concept has some links to Christianity with its doctrine that all human beings are created equal in the sight of God, whereas in the Confucian traditions that stem from China, for example, the stress is on obligations that each person has toward his or her kin and superiors. These obligations, in turn, will establish expectations in those kin and superiors, and these expectations will be articu­ lated in terms that might be analogous to rights claims. Given these cultural differences, most cosmopolitans seek to ground human rights in such a way as to attract

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acceptance on the part of any reasonable person anywhere rather than by mounting arguments that depend on the metaphysical assumptions of specific peoples. One approach has been to speak of human agency. It is suggested that irrespective of cultural traditions, all human beings experience themselves as agents. They make deci­ sions, act upon rational considerations, and pursue goals that they can justify to those around them who share their outlook. They are not programmed robots who merely fulfill the intentions of others. Accordingly, the living of a human life with dignity requires conditions that enhance the possibilities of agency. The first and most obvious of these is freedom. Enslavement is a denial of agency in that it robs individuals of that degree of freedom that allows them to live their own lives. However, the negative free­ dom of being left alone to take one’s own initiatives is not enough. To exercise agency with any degree of effective­ ness or dignity requires education, basic subsistence and health care, security of property and person, economic and social opportunity, a sense of cultural belonging and com­ munity participation, and many more conditions. These conditions have been variously articulated as positive free­ doms or as capabilities that everyone should be allowed to enjoy and activate in ways suited to their circumstances. To live life with human dignity is not just to not be enslaved but to be able to exercise a range of capabilities that fulfill one’s needs and potentials in community with others. Accordingly, anyone should be able to claim such conditions as a right. The crucial feature of this form of argument is that it is empirically rather than metaphysically based. There are no claims about a basic or god-given human nature or about the contents of an ancient and venerable tradition. There are merely observations about how people live and about the needs that are manifest in what they strive for. There is an assumption that the people of the world are basically similar and united by reason, sociability, and a common humanity, and that there is a globally acceptable, naturalistic concept of human dignity. However, this assumption may be deemed to be based on common sense rather than on metaphysics (even though it is an assumption that racists and some nationalists do not share). Nor are there any claims based on assumptions that only Western liberals might make. Although the term ‘autonomy’ is sometimes used in these discussions – a term that suggests a high degree of control over one’s own life and an ability to plan it in light of one’s own individual values – such a concept imports too many liberal assumptions. A decent society may not accord all of its members full autonomy in that sense and yet give them the opportunity to exercise a range of capabilities that are sufficient for a fulfilling and dignified human life. The details of these judgments will remain contentious, but the broad outline of what all individuals in all areas of the world need in order to live lives of basic human

dignity will be clear enough. It is this outline that can ground universal claims for human rights. Everyone has a right to exercise those basic individual and social capabil­ ities that are required for what any reasonable person would recognize is a dignified human life. Not only can human rights be justified in this way but they can also be legitimated. What this means is that just as a legal positivist will say that certain ordinances are law insofar as they have been enacted in the legally required manner, so we can say that human rights are normative just because they have been declared as such by a legally constituted global body – namely the UN. The UDHR was drafted by a committee that contained members of, and sought input from, all the major cultural and religious traditions of the world. Although there was some dissension on the part of a few nations, an overwhelming majority of the nations that then constituted the UN supported the declaration. This formal acceptance is enough to give it the status of a global norm. Subsequent elaborations and con­ ventions on the part of the UN have gone on to give the concept of human rights a legal status sufficient to ground instruments and institutions that seek to secure adherence of those norms on the part of the world’s nations. Whatever their justification, human rights claims have been declared to be legitimate. As such, they provide the moral touch­ stone against which the actions of governments and other organizations, such as NGOs and multinational corpora­ tions, are judged by cosmopolitans. Global Justice Cosmopolitans demonstrate benevolence to all others irrespective of race, caste, nationality, religion, ethnicity, or location and are willing to come to the aid of those suffering from natural or man-made disasters, including extreme poverty. The classic argument for such a position has been articulated by Peter Singer. Singer asks us to imagine coming across a young child lying face down in a pond. It would be physically easy for us to save the child albeit that we would ruin our fine shoes in doing so. Our intuition, nevertheless, is that we would be obliged to do so. If we can save the child without sacrificing anything of comparable moral significance, such as our shoes, we have an obligation to save the child. However, says Singer, well-off people in the West are in this kind of situation all the time. There is extreme poverty in many areas of the world, with children dying from avoidable disease and malnutrition or from natural disasters that could be ame­ liorated if the countries in question were not so poor. We may not be confronting a child that is directly before us in a pond, but there are children in other areas of the world who are dying and whose death could be prevented if we made some contribution to international aid agencies. Accordingly, the analogy with the child in the pond applies. If I have an obligation to save the child in the

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pond because the cost to me of my shoes is of no compar­ able moral significance, I also have an obligation to save a child dying in a distant place if the cost to me of doing so is not of comparable moral significance. The central purpose of this argument is to show that my relation to that distant child is one of obligation rather than of charity. Charity is too readily thought of as some­ thing that is optional or supererogatory such that it would be a fine and morally admirable thing to contribute to the needs of the poor and starving, but without its being a strict moral requirement. Singer’s argument shows that it is. We have a duty to help the starving poor wherever they are in the world. There has been some discussion in the literature regarding whether this argument is too demanding, however. Once we have given what it is our obligation to give in order to save the life of one child – an amount that is calculated to be relatively small – we are left in the same moral position as before. There is another child whose life could be saved, and I have an obligation to save it. The wealthier I am, the more obligations I have because every amount I give to save one child leaves me with enough to save others. I do not attain release from obligation until I have reached a point at which my giving more would leave me in a worse condition than that of the child I could save. One solution to this problem is to re-think the action I might take to save lives. Rather than giving money to aid organizations, I might lobby governments to increase their aid budgets, or I might join aid organizations in order to contribute more directly. However, the demandingness of the obligation remains a problem, and a way must be found to live with it. The principle of humanity – understood as our obligation to help those who are in need simply because they are fellow human beings who are in need – can be unrelenting. It has also been suggested that the principle of human­ ity is not what is at issue here. Rather, it is the principle of justice. The main proponent of this view is Thomas Pogge, who has argued that the obligation to help those who suffer extreme poverty in the developing world should be seen not, as Singer does, as a positive obligation to help those who are in need but, rather, as a negative obligation. A negative obligation is an obligation not to harm another person. For example, we are obliged not to kill other people or not to steal from them. This is a more stringent obligation than the obligation to help them if they are in need. However, says Pogge, we in the West are constantly harming, killing, and stealing from people in the developing world. We may not be aware of this and we may not be doing it intentionally, but we are benefit­ ing from a global economic order in which rich nations and their citizens get rich at the expense of poor nations and their citizens. We appropriate their natural resources without adequate compensation, we exploit their cheap

labor in order to acquire affordable consumer goods, and we set up trade agreements and local subsidies that dis­ advantage their primary producers. Moreover, these arrangements are a legacy of past colonial conquests and subjugations and are still maintained under threat of overt or covert military interventions. The world economic order is unjust. Insofar as we participate in it and benefit from it, we are violating the negative duty not to harm, kill or defraud others. Pogge’s solution is also more radical than that of Singer. Rather than just giving aid to suitable aid organi­ zations, we should strive to change the world economic order. Nothing short of institutional reform on a global scale can wind back the injustices that colonialism and neo-colonialism have foisted upon the world. In this way, the program of ethical cosmopolitanism dovetails with that of political cosmopolitanism. To argue for this position, Pogge makes use of the theory of justice developed by John Rawls. Rawls had assumed that nation-states were systems of cooperation in which institutions and social arrangements should be designed to fulfill the criteria of justice. He imagined people gathered to create these institutions and the prin­ ciples on which they should operate but did so without knowing what positions they would hold in the new society. In these circumstances, they would regard as fair only arrangements that would secure a decent life for the worse-off – namely those that would guarantee maximum freedom for all, provide unhindered access to economic and social opportunity for all, and secure increasing benefits for the least well-off through the increasing wealth of the better-off. Pogge criticizes Rawls for confining these criteria of justice to economic systems based on nation-states. Even in his later work, Rawls envisages that the framers of the Law of Peoples are the representatives of state-like entities. Accordingly, when thinking about global poverty, the principle of nonintervention that such representatives would insist upon leaves Rawls with only the option of describing the help that rich nations might give to poor ones as charity to overcome disasters or as confined to creating improvements in the governance of those poorer nations. Rawls assumes that poverty is caused by internal factors in poor countries – factors such as corrupt governments or regressive traditions – and that even poor nations have the potential to drag themselves out of poverty. Accordingly, their poverty is not in any way caused by the actions of other countries. Pogge will have none of this. He envisages a Rawlsian scenario in which people gather to design a global system of cooperation without knowing where in the world they would end up, and he argues that the principles of justice that Rawls had defined in his earlier work should apply globally irrespective of national borders. Economic systems transcend borders and so sys­ tems of cooperation, with all the mutual obligations and

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principles of justice that they establish, should apply globally also. Just as it is unjust for the rich to be getting richer at the expense of the increasing poverty of the already destitute within national economies, so this is also unjust on a global scale. There is continuing debate over this issue. Some argue that our moral obligations in the area of distribu­ tive justice are stronger in relation to co-nationals because co-nationals participate with us in a political and social framework marked by taxation, economic regulation, welfare systems, and bounded government responsibilities, whereas others argue that justice can be defined in global terms that link it to the basic human rights, both economic and political, that all human beings can claim by virtue of their humanity. In this debate, cosmopolitans evince a commitment to jus­ tice in the distribution of natural resources and wealth on a global scale, and they display solidarity with the struggles for human rights and for social justice of all the world’s peoples. This commitment also has implications for immigra­ tion and refugee policies. Nation-states define who will be citizens of that nation and who will not. Most com­ monly, one becomes a citizen by being born within the relevant borders. Often, one can acquire citizenship by fulfilling a number of criteria centered on residency. The effect of this is to divide the world’s people into those who are citizens of a given nation-state and those who are not. Citizens have a range of rights, including those of residency, whereas noncitizens do not. Noncitizens can be excluded and rejected if they seek to cross the national borders. However, if cosmopolitans stress justice at a global level and play down the moral importance of national sovereignty, then they will be inclined to question this division. If refugees are fleeing persecution, poverty, or oppression, they will see no valid moral reason for denying them entry to the state. After all, the needs of such refugees might result from policies pursued by the cosmopolitans’ own governments. There may be practical reasons why immigration flows need to be managed in a context of limited resources, but just as cosmopolitans embrace the many cultures and lifestyles of the world, so they will, as a matter of justice, welcome different individuals and communities into their states and embrace multiculturalism. Peace If one of the goals of political cosmopolitanism is the securing of lasting world peace, the ethical commitment of individual cosmopolitans is to work toward world peace and the rule of international law. This may imply that cosmopolitans would be pacifists. However, if pacifism is the rejection of military force to resolve

conflict between states, then cosmopolitans could not embrace it. Cosmopolitans know that the pursuit of human rights is empty rhetoric if it is not backed up by force. Along with rights, there have to be obligations on the part of others to respect and protect those rights. Just as the rights of life and property can only be adequately protected within national communities if there are police forces, so human rights at a global level can only be protected if there are global police forces and a will­ ingness on the part of the global community to deploy them. Just as there will always be a minority of people in a domestic community who are criminals, so there will be a minority of rulers in the world, or a minority of rogue states, that threaten the rights of individuals and communities. There can be no peace if there is no will­ ingness to use force against such global criminals. However, it should be possible to think of such uses of force under a different rubric from that of war. If war is traditionally thought of as armed conflict between states in the pursuit of their national interests, then the protec­ tion of human rights across borders – even if this involves the armed forces of one or more nation-states – should be thought of as police actions. Under such a rubric, there will be less temptation to revert to Westphalian and nationalistic motivations and more inclination to view the action as a cosmopolitan pursuit of human rights, global justice, and world peace.

See also: Development Ethics; Economic Globalization and Ethico-Political Rights; Global Ethics, Approaches; Global Ethics, Overview; Global Public Goods; Rights Theory; Needs and Justice.

Further Reading Appiah KA (2006) Cosmopolitanism: Ethics in a World of Strangers. Norton: New York. Archibugi D, Held D, and Ko¨hler M (eds.) (1998) Re-imagining Political Community: Studies in Cosmopolitan Democracy. Cambridge, UK: Polity. Brock G (2009) Global Justice: A Cosmopolitan Account. Oxford: Oxford University Press. Caney S (2005) Justice beyond Borders: A Global Political Theory. Oxford: Oxford University Press. Dower N (2003) An Introduction to Global Citizenship. Edinburgh, UK: Edinburgh University Press. Kant I (1991) Perpetual peace: A philosophical sketch. In: Reiss H (ed.) and Nisbet HB (trans.) Immanuel Kant: Political Writings, 2nd enlarged edn., pp. 93–130. Cambridge: Cambridge University Press. Nussbaum MC (1992) Human functioning and social justice: In defence of Aristotelian essentialism. Political Theory 20(2): 202–246. Nussbaum MC (1996) For Love of Country? (Cohen J, ed.). Boston: Beacon Press. O’Neill O (1986) Faces of Hunger: An Essay on Poverty, Justice and Development. London: Allen & Unwin. Pogge T (1992) Cosmopolitanism and sovereignty. Ethics 103(1): 48–75.

682 Cosmopolitanism Pogge T (2002) World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms. Cambridge, UK: Polity. Rawls J (1999) The Law of Peoples. Cambridge, MA: Harvard University Press. Singer P (1972) Famine, affluence and morality. Philosophy and Public Affairs 1(3): 229–243. Tan K-C (2000) Toleration, Diversity, and Global Justice. University Park: The Pennsylvania State University Press. van Hooft S (2009) Cosmopolitanism: A Philosophy for Global Ethics. Chesham, UK: Acumen.

Relevant Website http://www.un.org/en/documents/udhr Declaration of Human Rights.

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The

Universal

Biographical Sketch Stan van Hooft is Associate Professor of Philosophy at Deakin University in Australia. He is author of Caring: An Essay in the Philosophy of Ethics (University Press of Colorado, 1995) and numerous journal articles on moral philosophy, bioethics, business ethics, and the nature of health and disease. He is also co-author of Facts and Values: An Introduction to Critical Thinking for Nurses (MacLennan and Petty, 1995). His Life, Death, and Subjectivity: Moral Sources for Bioethics was published by Rodopi in 2004. He published two books in 2006: Caring about Health (Ashgate) and Understanding Virtue Ethics (Acumen). Acumen published his Cosmopolitanism: A Philosophy for Global Ethics in 2009.

Crime and Society S Dimock, York University, Toronto, ON, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Communitarianism A view opposed to liberalism, which takes communities and the shared values that partly constitute them, rather than individuals, as of supreme political importance. Crime Violation of a norm or rule of criminal or penal law. Criminal offense Criminal offenses consist of a connected actus reus (a prohibited act, result, or omission) and mens rea (a mental component of fault for the prohibited act). Typically, to commit a crime one must not only perform a prohibited act or bring about a prohibited result but also do so with a particular mental state, such as knowingly, intentionally, maliciously, recklessly, or with willful blindness. Criminal offenses can only be committed by persons acting consciously and in voluntary control of their own bodies, and who have the capacities to be responsible agents. Defenses Every criminal code or system of penal law includes a number of defenses to a criminal charge because of what a crime is, which relieve persons of criminal liability, including exemptions, justifications, and excuses. Legal punishment The intentional imposition of an avoidable loss imposed by legal authorities upon an offender for an offense.

Introduction Crime generates significant costs, both for victims and for others, and reduces the quality of life in society. It is there­ fore not surprising that social scientists have given its causes and effects sustained attention. Philosophers have been more interested in how we ought to understand crime and our typical response to it, namely legal punishment. This article is chiefly concerned with the philosophical rather than sociological and psychological questions that crime raises. It begins with a discussion of why society needs a criminal law and then specifically discusses crime and punishment.

Liberalism and the Criminal Law The modern conception of why society needs a criminal law routinely begins with classical and contemporary

Liberalism The theory that insists that political institutions be arranged so as to allow each individual the liberty and opportunities needed to realize as fully as possible his or her conception of the good life. Natural (or human) rights Rights we are thought to have just in virtue of our status as human beings, such as the right to life, liberty, and property. A much more comprehensive list is found in the United Nations’ Universal Declaration of Human Rights (1948). Natural rights are contrasted with conventional or political rights, rights we have in virtue of filling some role (e.g., the rights enjoyed by parents as parents) or belonging to some specific political community (e.g., the right of persons in the United States to freedom of religion under the U.S. Constitution). Patriarchy The system under which women are systemically oppressed by men; a social, political, legal, and economic arrangement in which sexual equality is denied and women are subordinate to men. Tort (or civil) law The branch of law under which private individuals may recover compensation for damages or harms negligently caused by other individuals. Utilitarianism A moral theory treating utility – happiness, pleasure, preference satisfaction, welfare, or well-being – as the basic moral value, and enjoining as morally right the maximization of utility.

explications of liberalism – for example, from John Locke, John Stuart Mill, John Rawls, Ronald Dworkin, and Will Kymlicka.

The Criminal Law, Equal Respect, and Intrinsic Dignity Liberal conceptions of the criminal law focus in general on individuals as the locus of moral value. What ulti­ mately matters is the happiness or well-being of people, and each person’s well-being matters equally. The para­ mount principle of liberal political morality as reflected in the criminal law is that the equal value (or intrinsic dignity) of each human being must be respected. What exactly equal respect requires in this context is disputed. Those who believe that equal respect requires treating everyone’s happiness or welfare as equally important are drawn to utilitarian or welfarist theories

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of the criminal law. Others, believing that respecting individuals equally requires ensuring that they enjoy equal opportunity to pursue their own happiness, will be more concerned with the social distribution of opportu­ nities and resources. Still others hold that equal respect requires respecting individuals’ natural rights or intrinsic dignity (under conceptions of international human rights). Finally, some liberals insist that respecting the value of each individual requires imposing only those restrictions on their freedom that each could rationally agree to. Government Impartiality between Competing Conceptions of the Good Life Proponents of the ethical principle of all people having equal value (or intrinsic dignity) seek to impose on gov­ ernments a duty of impartiality between competing conceptions of the good. This requirement arises in phi­ losophical terms because of irreconcilable disagreements among citizens and policy makers about what constitutes a good life and how the criminal law should protect or encourage it. Such value plurality is a fact in every free modern society, although it is often suppressed in nonliberal countries. Liberal conceptions of the criminal law were a historical reaction to this social reality. Conceptions of the good that allow the criminal law to oppress or subordinate some individuals merely because they oppose them (e.g., those represented in Nazism, the Ku Klux Klan, or patriarchy) cannot be tolerated in any peaceful society founded on recognition of the equal worth (or intrinsic dignity) of persons. In a liberal society, many views must be tolerated by the criminal law, even if they appear fundamentally misguided. This insistence upon impartiality is not based on moral skepticism, or the belief that we cannot adequately judge the truth or reasonableness of competing conceptions of the good; rather, it is based on the belief that human welfare is a central moral value of any rational system of the criminal law, and that a necessary component of welfare is a criminal law that permits a citizen the freedom to define for him- or herself what constitutes a good life. Individual Liberty Liberal conceptions of the criminal law place paramount importance on individual liberty. A criminal law that ensures maximum liberty for each with like liberty for all follows from the relevant legislature’s commitment to impartiality. This is so because most individuals highly value their own freedom and because individuals must be free to pursue their own conception of the good without interference from others, as well as free to examine, challenge, and criticize both their own and others’ values. Thus, a state’s criminal law must guarantee the maximum

equal liberty to all if it is to remain impartial. This under­ writes the commitment to such basic freedoms as freedom of religion, association, speech, and conscience. Limited Government From liberal conceptions of the criminal law, we also get a picture of the proper relation between the people and their government. Government must be for the people (and this has typically been taken to be best ensured by having government by the people). Governments are charged with impartially serving the interests of their citizens, for example, through the creation of an appro­ priate system of criminal law. Furthermore, government must be limited in power, exercising only so much power as is necessary for it to fulfill its task of serving the interests of the people and protecting their rights. These themes come together in the liberal insistence that society be governed by the rule of law. A society governed by the rule of law is governed by settled stand­ ing laws, promulgated to and binding on all. It is also characterized by the insistence that all people are equal before and under the law. This requires that the admin­ istration of legal justice be constrained by due process or procedural fairness, which ensures that anyone accused of a crime has a fair opportunity to defend him- or herself and that people will only be held legally liable for offenses for which they are responsible. It also gives rise to a conception of individuals as naturally entitled to equal concern and respect from their governments and to a conception of justice requiring that the basic institutions in society be arranged to allow all persons opportunities for full participation in the political, economic, and cul­ tural life of their country, as well as the maximum freedom to pursue their individual conceptions of the good life (consistently with the rights of others).

Why Society Needs a Criminal Law The liberal insistence upon governmental impartiality might be thought to raise questions about the legitimacy of using criminal law to regulate the behavior of members of society. In prohibiting various acts through criminal law and making their performance subject to coercive sanctions (punishment), is the government (or the major­ ity it represents) imposing its own conception of the good on citizens who may hold dissenting opinions? In prohi­ biting incest or street racing, for example, is the state thwarting the ability of sexually attracted siblings or thrill seekers to pursue their conception of the good? The short answer to this question is that only reason­ able individual conceptions of the good need be respected. Although the exact nature of the reasonable­ ness requirement is disputed, at least one element of it

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seems uncontentious: The liberty claimed by any indivi­ dual or group must be compatible with equal liberty for others. Those whose conception of the good supports the oppression of others in society for opposing that concep­ tion claim a greater degree of freedom for themselves than they would be willing to allow to others. Vulnerability to Violence and Need for Cooperation To understand the liberal response to concerns regarding the legitimacy and proper role of criminal law, this article briefly examines why we need law at all. Many things might be thought to define our nature as human beings for the purposes of the law. We are social creatures. We are vulnerable to violence at the hands of others. We are avaricious, desiring many things that are insufficiently supplied by nature. We compete for scarce goods, material and nonmaterial. Also, often we can coop­ erate in ways that increase the overall stock of desired goods, thus better serving our individual wants than we can by engaging in noncooperative competition. Our vulnerability to violence, as well as our need for mutually beneficial cooperation, ensures that to live well together we must institute social rules that provide a general prohibition on force and fraud and define the terms of social cooperation. Such rules also need to be enforced. This is necessarily so, because a system of primary rules of obligation – rules requiring certain actions and forbidding others – must include provisions for sanctions against those who break the rules and con­ tingently because each of us might be tempted to break the rules supporting peaceful cooperation. If there were no temptations to cheat, the threat of punishment would be superfluous. Society cannot tolerate widespread disobedience to the rules limiting violence and protecting cooperative arrangements because violence and agreement-breaking are self-perpetuating. Violence breeds violence for a number of reasons: Victims of violence often become obsessively self-interested; it leads to anticipation and fear of more violence, both for victims and for perpe­ trators who fear retaliation; it makes defensive violence more likely; it weakens the ties of community that bind together the members of a peaceful society; and it breeds retributive emotions such as resentment and even hatred. Similarly, having faith in the commitments of one’s fellows is absolutely vital to a well-functioning society. General veracity is needed for any meaningful sense of community, and a commitment to promise-, contract-, or agreement-keeping is needed for the stability of mutually beneficial cooperation. Without trust that our fellows will generally do as they have agreed to do, we should be incapable of sustaining many of the good things in life. Again, breaches of agreements take on a momentum of their own: Breach of promise leads to distrust and

suspicion. Victims of such breaches are less willing to enter into other cooperative schemes without adequate assurance of performance from their partners, breeding in turn suspicion and lack of goodwill, which reinforce the original distrust, etc. In regulating behavior through law and punishment, we leave individuals free to choose how they shall act. By imposing penalties on some behaviors, law provides an additional reason (distinct from any other reasons people may have) for them to do as it requires. Yet ultimately it is up to individuals to decide whether they will obey the law or break it and thereby risk being punished. Contrast this method of behavior control with early childhood indoc­ trination, imposed drug therapy, or constant surveillance, and it becomes apparent that the rule of law comports well with basic liberal principles. Such a policy is attended with serious risks, how­ ever, because people will break the law, at least as long as we have limited goodwill toward others and our situation is one of competition for scarce goods. If our societies continue to fall short of liberal ideals, allowing gross inequalities of wealth and political power, extreme poverty, restricted opportunities for many, racial and gender inequalities, and other social injus­ tices, the risk that some will engage in criminal activities is even higher. Yet liberal societies do not view the ‘causes’ of crime as strictly deterministic; they reject the idea that there are criminogenic social conditions that inevitably drive people to crime. Rather, the presumption is that crime is voluntarily undertaken by persons who could have obeyed the law and are responsible for failing to do so. This is not to deny there are many factors that con­ tribute to crime, from poverty to systemic social exclusion, peer pressure to thrill seeking, hatred to greed. Because people are inclined to crime by these and a myriad of other factors, the coercive enforcement of law is needed. Criminal law, we might then say, is a purposeful code of rules designed to regulate the behavior of those subject to it so as to make possible peaceful and mutually bene­ ficial social interaction. By criminalizing certain acts, and attaching penalties to their performance, the law attempts to reduce, if not eliminate, the incidents of those acts being performed. The Criminal Law’s Creation of Crime This way of regulating our interactions with others creates a unique problem – unique, that is, only to those who are capable of engaging in rule-governed practices: what to do with those who break the rules. This is a problem generated by all rule-governed activ­ ities. It is only against the background of rules that many offenses or breaches can be defined. The breach of

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moving a pawn four spaces in a single move, for exam­ ple, can only be understood as a violation against the rules of chess. The appropriate response must be deter­ mined from within the activity of chess, moreover. Criminal law likewise gives rise to a range of offenses, which we call crimes; without the institution of criminal law, we would lack the notion of crime. We might still have other categories of wrong and harm, but the con­ cept of crime specifically is inseparably linked to penal law. Moreover, the conception of criminal law within which one operates will itself provide a particular con­ ception of crime and its wrongfulness. Breaches of criminal law are not viewed in the same light as breaches of the rules of etiquette, for example, or breaches of the rules of hockey. Gentle correction may be in order for the former and a 2-minute penalty for the latter. Punishment, by contrast, is what is imposed for viola­ tions of criminal law. Why that might be the correct response depends on what we think the criminal law is, the good it secures, and the kind of wrong its violation constitutes. Criminal punishment is an avoidable loss intentionally imposed by legal authorities upon an offender for an offense, for a violation of criminal law. It is important that the state (through its legal authorities), rather than the victims of crime, for example, punish violations of the laws that prohibit violence and facilitate cooperation. Crime is an offense not just against the victim of the crime (if there is one) but also against society as a whole. Victims may rightfully seek restitution for the harms they suffer though tort law, or they may waive this right, but it falls to society to punish offenses against itself. Crime harms society because the conditions of peaceful society are in everyone’s interests, and insofar as crime threatens those interests it harms everyone. The primary harms created by crime fall on the vic­ tims of crime and those who care about or depend on them; victims bear the direct costs of crime, including loss of life or physical maiming, impairment or pain, loss of future income or enjoyments, loss of property, and the psychological costs of being victimized. For reasons con­ sidered later, it is important that society does not acquiesce in anyone being treated thusly, and so it is proper that the state punish criminals for the harms they do to their victims. It is even more obvious that the state should punish when we consider the secondary harms that crime inflicts upon everyone in society. These include many of the same psychological harms suffered by victims of crime: fear, impotence, anger, and mistrust. Members of society must also bear the substantial costs of maintaining the enforcement apparatus of criminal law: police, courts, prisons, and noncustodial forms of confinement and mon­ itoring. Criminals show that this is not enough by nonetheless engaging in crime. Thus, citizens purchase

locks and alarm systems, buy extra insurance, and stop going out at night. Criminals act wrongly in forcing others to bear these costs, and society rightly punishes this injustice. Limits of the Criminal Law in Restricting Liberty The criminal law prohibits actions imposing serious costs on victims and society, acts of violence and acts that disrupt cooperation, and wrongdoing against other per­ sons and their property that cannot be tolerated in wellfunctioning societies. It is taken as true in most theories of criminal law that only serious wrongdoing should be criminalized. Indeed, the limits of just criminal law become even more apparent if we recall that violations of such laws are met with legal punishment. Criminal punishment involves the intentional imposition upon offenders of serious losses and actions that would them­ selves be seriously wrong if not imposed as deserved punishment. Imprisonment, parole, or fines imposed as punishment would respectively be kidnapping and forci­ ble confinement, deprivation of liberty, and robbery if done by private citizens or the state for reasons other than punishment. Punishment is contrary to our natural and political rights and the equal respect we are due from our government. If it is to be justified, then, it must be imposed only for violations that are similarly serious, only for actions that are violations of others’ natural and poli­ tical rights, such as the rights to life, security of person, liberty, and property. Finally, criminal law always limits liberty. It makes certain actions ineligible. Those who would restrict individual liberty must justify doing so, and presumably that justification will make reference to the serious harms the restrictions on liberty are designed to prevent; protecting people from trivial annoyance would presumably not justify the kind of restrictions on liberty that criminal law imposes on everyone in society. These considerations impose strict limits on the kinds of conduct we should prohibit through criminal law – restrictions on the creation of crimes. Only the most serious kinds of wrongdoing should be criminalized. Other harms, not involving serious rights violations, should be treated as torts. The proper limits of criminal law are controversial. Should the law be used to regulate sexually ‘deviant’ behavior between consenting adults, restrict abortion, prevent public criticism of political leaders, or impose a state religion? In answering such questions, four broad positions about the proper limits of criminal law have developed. Preventing people from harming others

Proponents of the harm principle accept that it is legit­ imate to use criminal law to limit the liberty of individuals in order to prevent them from harming

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others. Acceptance of this principle, so understood, is very widespread. In arguing that the purpose of criminal law is to secure nonviolence and make possible coopera­ tive relations between people, we have accepted it. The harm principle has often been taken to mean more than this, however, because its most famous formulation by John Stuart Mill stated that prevention of harm to others was the only legitimate use of criminal law. The only kinds of actions that could legitimately be prohibited were those constituting serious harms violating the rights of others. Most liberals think this is unduly restrictive. So understood, the harm principle stands opposed to the following three principles concerning acceptable uses of criminal law. Preventing people from harming themselves

Those advocating this principle accept that law may be used to limit people’s freedom to harm themselves. Criminal laws prohibiting the use of life-destroying sub­ stances (e.g., heroin and crack cocaine), or prohibiting suicide, are typically justified on paternalistic grounds: We prohibit these behaviors to protect people from them­ selves, for their own good, just as we impose restrictive rules on children to prevent them from harming them­ selves. Mill and many other liberals have argued that paternalism is not permissible when dealing with compe­ tent adults because it denies them the respect they are due. Although most societies have allowed some restric­ tions on individual freedom for paternalistic reasons, such restrictions require special justification within a liberal framework, where the onus is on those who would treat others paternalistically to show that the danger to be prevented is serious, that some individuals are vulnerable to the harm if left free, and that the freedom to be restricted cannot figure centrally in any reasonable con­ ception of the good life. Restricting immoral behavior

Those defending legal moralism, such as Patrick Devlin and many communitarians, hold that the liberty of individuals may also be restricted to prevent them from acting immorally. Now most crimes are both immoral and harmful to others (their victims). Homicide, kidnapping, assault, robbery, theft, extortion, blackmailing, etc. are both harmful to others and viola­ tive of their rights, and so they are subject to prohibition under the harm principle; they are also immoral and so may be prohibited under legal moral­ ism. For legal moralism to be distinct from the harm principle, then, it must require that some actions may be prohibited because of their immorality, even though they are victimless and harm no one. Sexual morality provides useful examples. Homosexual behavior between consenting adults, heterosexual intercourse between unmarried persons, voluntary prostitution,

and sadomasochistic acts have been thought by a sizable majority of people at one time or another to be immoral, yet there is no victim of such activities. Legal moralists insist that it is enough to justify limiting the freedom of people to engage in such activities that the majority of people in society find them morally intolerable. Such a view typically rests upon the claim that society has the right to defend its shared morality against activities that might undermine its authority because this is an important component in individuals determining the kind of society they want to live in, or that the laws of the society must conform to a specific religious tradition. Legal moralism conflicts with liber­ alism and has increasingly been rejected as a legitimate use of criminal law. Only immoral acts that are also harmful or violative of the rights of others can be con­ demned in law as well as morality, and their performance justly punished. Preventing people from offending others

The final use of criminal law to restrict the liberty of individuals considered here is to prevent offense to others. It might be thought that the offense principle will reduce either to the harm principle or legal mor­ alism. After all, surely not just any offense justifies use of criminal law. I may offend my fellows with my breath or my fashion sense, but neither offense is sufficiently serious to allow others to determine by threat of pun­ ishment how I should conduct my oral hygiene or dress. Only diminishing the welfare of others in some signifi­ cant way can justify restricting the liberty of individuals to do as they wish, but then such cases would be captured by the harm principle. Alternatively, some people find the mere idea of others behaving in ways they think are immoral or irreligious offensive; they find the mere knowledge that others are acting in cer­ tain ways offensive. In this case, the offense principle just reduces to legal moralism. The offense principle has, however, an independent role to play in protecting unwilling audiences from offensive conduct and ensuring that public spaces are available to all on acceptable terms. We might, for example, prohibit displays of pornographic material in public places on the grounds that some people find pornography deeply offensive. We might similarly pro­ hibit such displays to ensure that unwilling audiences are not exposed to such material against their will. It will often be the case, however, that protecting unwill­ ing audiences from offensive material and ensuring that public spaces are available to everyone require only restrictions on the offensive behavior or material; time and place restrictions, for example, limiting the distri­ bution and display of pornography to only willing audiences and in private places would protect others from offense without entirely prohibiting the use of

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pornography by those who like it. However, if there are actions that would be offensive if done in public or in the presence of unwilling audiences that are neither immoral nor harmful to the participants if done in private or only in the presence of willing audiences, then the offense principle applies to them. Surely there are such actions. A married couple engaging in consen­ sual sexual intercourse is neither harmful nor immoral, yet society may be justified in limiting the couple’s freedom to engage in sex in a public park, on a subway, or in a grocery store. These are the disputed grounds on which society may limit the liberty of some through the use of criminal law. Liberals support the harm principle and perhaps some restricted versions of paternalism and the offense princi­ ple. However, they will typically not accept that harmless immorality may be prohibited through the coercive insti­ tution of criminal law. We have been concerned with the purposes that may legitimately be pursued through criminal law. However, a just society must also consider the effects of criminalizing certain kinds of behavior on society as a whole, as well as on different groups. An example of both points may be drawn from our criminalization of the use, possession, and/or sale of various narcotics. This has society-wide effects that are very harmful: Criminalization of narcotics accounts for a very signifi­ cant proportion of prison populations, creates conditions under which criminal organizations (gangs and illegal motorcycle clubs) can flourish, makes it more difficult for persons addicted to such substances to seek medical intervention and assistance, and is itself a criminogenic factor in society because criminalization artificially inflates drug prices. Such effects should always be considered when governments contemplate making any activity criminal. Also, it is often the case that our use of the criminal law will have differential impacts on different groups. Our drug laws make poor and already vulnerable members of our society even worse off, especially those suffering from mental illness and addiction. Within various criminal law schemes, we also find differential impacts. Many criminal codes dis­ tinguish between different kinds of prohibited drugs, imposing different penalties for different classes of sub­ stances. Thus, it is not uncommon for crack cocaine to be classified differently than powder cocaine, with the possession or trafficking of crack being given a stiffer sentence. Given that crack is less expensive and tends to be used more by poor and racialized groups than powder cocaine, this has the effect of imposing a greater legal burden upon certain groups in society than others. Again, a just criminal law system will consider not only the effects of criminalizing certain activities on society in general but also any differential impacts such as these.

Criminal Responsibility and Criminal Defenses Even if society is justified in using criminal law, because a particular prohibition serves legitimate purposes without imposing unjust burdens on all or some citizens, it is further necessary that it only be enforced against those who are responsible for their criminal wrongdoing. We should only punish and label as criminals those persons who are responsible for their crimes. To understand criminal responsibility, we must again consider the kind of wrong that crime involves. Criminal wrongdoing is a violation against the rules that prohibit violence, force, and fraud and maintain the conditions of cooperation. Crime imposes significant harms and vio­ lates rights; crime is seriously wrongful. In order to act wrongfully and not just harmfully, however, the criminal must in some sense have acted intentionally in bringing about the harms and violating the rights constituting the crime. The distinction between harms and wrongs is impor­ tant because a person might harm another in any number of ways, doing thereby what would constitute the actus reus of some criminal offense. Suppose, for example, that I trip, thereby falling down the stairs, crashing into you; or I am safely and soberly driving home on icy roads and a child jumps in front of my car, whom I hit and injure; or I serve a friend seafood to which, unbeknownst to either of us, she is allergic and she dies. Consider also that a person puts a gun to my head and credibly threatens to kill me unless I assist him in robbing a store and so I help rob the store; or I have dropped a very expensive vase belonging to someone else and broken it, but I am only 6 years old. Likewise, what if I am innocently going about my busi­ ness and another person attacks me, credibly threatening to kill me, and I kill the attacker to save my own life; or I try to assassinate my Premier because I am insane and convinced that he is an alien sent to Earth to kill all human children. In all these cases, I have harmed another and performed the actus reus of some criminal offense: assault, homicide, robbery or aiding a crime, destruction of property, and attempted murder. Surely in none of them, however, should I be punished and branded a criminal, with the social stigma and serious consequences that would have on my future opportunities. The examples given cover four different kinds of cases, however, and the reasons why it would be wrong to treat my behavior as criminal differ among them. The most common reason why we should not hold a person respon­ sible for bringing about the actus reus of a crime is because he or she did so without the required mens rea. I am not guilty of assault if I fall and crash into another or acciden­ tally injure a child with my car, and I am not guilty of murder if I give my friend a shrimp that leads to her

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death. This is so even though applying force to and bring­ ing about the death of another person are the actus reus for assault and homicide, respectively. I brought about the prohibited result, but without fault, without the mental conditions necessary for the complete crime. I did not apply force intending to do so or knowing that my action might lead to that result, and I did not plan to bring about my friend’s death, intend her death, or foresee it as a possible outcome of my actions. I can accidentally bring about the actus reus of an offense without the mens rea because of some reasonable mistake about the facts and circumstances in which I am acting. However, I have not committed a crime because an essential element of the crime, namely the mens rea, is absent. Many criminal law defenses operate to negate an essential element of the crime, usually mens rea. We require mens rea because we do not think anyone should be branded a criminal and legally punished unless they acted with fault, and that is usually taken to require a subjective mental state such as intention, knowledge, mal­ ice, willful blindness, or recklessness (being aware that your actions run the risk of bringing about a prohibited act and choosing to impose that risk). Subjective fault concerns what was in the mind of the actor at the time of the action. It is the subjective fault for criminal activity that transforms it from harm into crime. Crimes are not committed accidentally, mistakenly, or even carelessly, although we may inflict harm in these ways; rather, crimes are committed knowingly, intentionally, or recklessly. It is because criminals knowingly or intentionally inflict harms on others, violate their rights, or act to undermine the conditions of social peace and cooperation that society is entitled to punish them. By their actions, they deny the equality of persons and the rights on which social peace and cooperation are founded, taking a greater liberty than they would grant to others. Through punishment, society reestablishes its commitment to peace and cooperation and the equality of persons. This can be readily appre­ ciated by considering what is conveyed if society acquiesces in the victimization of some by others. Think of whites killing blacks with impunity in the Southern United States in the first half of the twentieth century or the public response to domestic violence against women throughout the history of most societies; if society does not punish such crimes, it thereby denies the value of the victimized groups and their rights. The previous examples also include cases that would fall under the headings of justification and excuse. Persons who are justified or excused are responsible for their actions and have completed the full crime, including actus reus and mens rea, and so justifications and excuses are different than defenses negating mens rea. Nonetheless, we do not treat their actions as criminal or impose punish­ ment. In the case of justifications, we do not punish because we think the person’s action, although satisfying

the conditions of a criminal offense, was not wrong in the circumstances. Injuring or even killing another in selfdefense is a justified action. The person knows that her actions may lead to the death of her attacker, or even intends to bring about the attacker’s death, and does so, thus satisfying the conditions for murder; however, the killing was justified. Many countries treat acting from necessity as justified as well, on the grounds that a person who acts under necessity chooses ‘the lesser evil.’ Thus, an alpinist lost in a blizzard who breaks into a cabin and burns some of the furniture for heat has committed what would otherwise be the crimes of break and enter and destruction of property. However, because this was a lesser evil than freezing to death, he was justified. He may owe the cabin owner compensation, but he will not be criminally punished for his act. In Canada, necessity is not treated as a justification but as an excuse, along with duress. Duress involves situations in which a person commits what would otherwise be a criminal offense in order to avoid a credible threat of serious harm from another person. This is the ‘gun to the head’ situation, wherein I help rob the store to avoid getting shot. Canadian courts think necessity and duress are parallel situations, the only difference being the source of the serious harm that can only be avoided by engaging in the criminal activity: natural circumstances in the case of necessity, such as a storm or a fire, and humanmade threats in the case of duress. In both, criminal actions undertaken to avoid the threatened harm may be excused because although what the person did was wrong, he is not blameworthy for doing it under the terrible circumstances he faced. The impulse to excuse is huma­ nitarian, recognizing that persons may find themselves in circumstances, through no fault of their own, in which compliance with the law would be too difficult to expect of a reasonable person. We cannot expect persons to freeze to death in order to respect the property rights of others, nor to allow themselves to be killed or seriously injured. Excused conduct is wrong, but the person com­ mitting the act is not deemed blameworthy because she acted reasonably given the circumstances. The cases considered thus far concern actions of per­ sons who are responsible agents, answerable to the criminal law. Those who act with justification or excuse take responsibility for their actions but insist such actions are not properly punishable because they do not reflect disregard for the rights of others or the values the criminal law protects. A person arguing that she has not committed a crime because she did not inflict harm intentionally, knowingly, or recklessly likewise does not deny her status as a responsible actor answerable to the law. The final category of defenses, however, concerns agents who are not criminally responsible because some personal char­ acteristic makes them not properly answerable for their behavior to the state whose laws they have violated.

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These are exemptions. Some exemptions are a product of law itself, such as that enjoyed by foreign officials under diplomatic immunity. Others involve persons who are exempt from criminal liability because they are not responsible agents. This class includes persons under a certain age and the legally insane. Young children cannot commit any crime, and the insane cannot be held respon­ sible for harms they cause as a result of their mental defect. Likewise, persons acting in a state of automatism, while sleepwalking, in a dissociative state caused by a severe blow to the head or psychological trauma, without conscious control over their bodily motions and without the connection between their actions and a controlling mind making their conduct voluntary cannot be held responsible for what they do. We might say such persons do not ‘act’ because action presupposes voluntary control, in which case they would not have performed the actus reus of any crime; we might also say they lack mens rea because there is nothing about their behavior that they know or intend or foresee. Some countries treat automa­ tism in these ways. However, we might just say that such persons lack the basic conditions of agency and so cannot be criminally responsible, just like others who are exempt from criminal liability.

Further Reading Dimock S (1997) Retributivism and trust. Law and Philosophy 16(1): 37–61. Dworkin R (1977) Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dworkin R (2000) Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Fletcher G (1978) Rethinking Criminal Law. Boston: Little, Brown. Frey RG and Morris EW (eds.) (1991) Liability and Responsibility: Essays in Law and Morals. Cambridge, UK: Cambridge University Press. Gardner J (2007) Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press. Hart HLA (1968) Punishment and Responsibility. Oxford: Clarendon. Horder J (2004) Excusing Crime. Oxford: Oxford University Press. Kymlicka W (1989) Liberalism, Community and Culture. Oxford: Oxford University Press. Locke J (1980). Second Treatise of Government (1690). Indianapolis, IN: Hackett Publishing. Mill JS (1956 [1859]) On Liberty. New York: Macmillan. Rawls J (1971) A Theory of Justice. Cambridge, MA: Harvard University Press. Tadros V (2005) Criminal Responsibility. Oxford: Oxford University Press.

Relevant Websites http://www.crimeandjustice.org.uk/harmandsocproject.html – Centre for Crime and Justice Studies. http://www-rohan.sdsu.edu/faculty/rwinslow – Crime and Society.

Conclusion Biographical Sketch Many nuances are unexplored in this sketch of criminal defenses. It ignores such difficult topics as whether selfinduced intoxication should be a defense. A central point that has been made, however, is that governments must frame their criminal laws to target only seriously wrong­ ful conduct and punish violations made only by those who are at fault, responsible, and blameworthy. If certain social conditions encourage or cause criminal conduct, such as poverty or racism, then governments must ensure they do not contribute to the creation or maintenance of such conditions, lest they be complicit in the criminal activity created and lose their right to punish in the name of society as a whole.

See also: Defenses at Criminal Law; Juvenile Crime; Liberalism; Poverty; Responsibility.

Susan Dimock earned her B.A. in Philosophy and History from the University of New Brunswick, an M.A. in Philosophy from York University, and a Ph.D. from Dalhousie University. She joined the faculty at York University in 1991 and currently holds the rank of Professor. Her areas of research and teaching include philosophy of law, ethics, political philosophy, public sector ethics, and the early modern history of philosophy. She has published articles on the subjects of personal autonomy, trust, punishment theory, criminal responsibility, coercion, and contractarian ethics. She is also the editor of a number of textbooks on philosophy of law and applied ethics. She has been actively involved in governance at York University. She has been President of the York University Faculty Association, Chair of the Faculty of Arts Council, and Chair of Senate. She has also been Director of the York Centre for Practical Ethics and is currently the Master of McLaughlin College.

Custody of Children C Levine, United Hospital Fund, New York, NY, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Best interests of a child The standard by which a judge, after considering all relevant factors relating to a child’s custody, determines what placement, on balance, is most likely to support a child’s need for continuity, stability, and nurturing. Custody planning The process of determining placement of a child when a parent is unable to provide care. Foster care When parents are judged unfit or unable to care for a child, the child may become a ward of the state and placed in a foster home until a permanency plan can be arranged; foster parents are responsible to a child welfare agency, which makes health care and other decisions. Gestational motherhood The process by which an egg from one woman is fertilized and implanted in another woman’s uterus and carried to term. Guardian A person legally charged with taking care of a minor. Guardian ad litem A person appointed by the court to present a minor’s best interests in a specific litigation or decision-making process. In vitro fertilization A procedure in which a woman’s egg is fertilized by a man’s sperm in a laboratory and then implanted for gestation.

Introduction Custody disputes involve a basic human bond between children and their parents. However, they also may involve religious and ethnic communities and even national interests and pride. Consider, for example, the case of Sean Goldman. Sean is the son of David Goldman and his late wife Bruna. In 2004, when Sean was 4 years old, Bruna took him to visit her family in Rio de Janeiro. Mr. Goldman expected to meet them a week later. However, Bruna called him to say she wanted a divorce and was staying in her native Brazil with Sean. She got a divorce and married the attorney who represented her. Mr. Goldman sued for Sean’s return but was rebuffed by Brazilian courts. In August 2008, Bruna died of complica­ tions during childbirth, and a Brazilian family court judge awarded custody to his mother’s Brazilian second hus­ band. The case has strained relations between Brazil and

Joint or shared custody A legal arrangement in which both parents share the legal or decision-making power over their children. Kinship foster care A formal arrangement similar to nonrelative foster care, in which a child’s kin is certified to act as the foster parent and receive the regular foster care rate. This is permitted only in some states. Mediation An informal process, conducted by a trained individual (not usually a lawyer), that helps family members agree on an acceptable custody arrangement for their child. In a nonconfrontational way, it focuses on problem solving within a family system. Permanency The goal of child custody arrangements – that is, a home where a child can receive love and support in an enduring and stable custody situation. Standby guardian laws State statutes that permit a parent with a chronic, life-threatening, or terminal illness to name a guardian to take over the care of his or her children in case of death, incapacity, or another such event. Surrogate or contract motherhood An agreement between a woman and (usually) an infertile couple in which the woman agrees to become pregnant by being artificially inseminated with the husband’s sperm, to give birth to the child, and to give it to the couple to adopt.

the United States, with Hillary Rodham Clinton, Secretary of State, advocating for Sean’s return, and the Brazilian authorities refusing to reunite him with his father. The case ended in December 2009, when a Brazilian judge ruled that Sean had to be returned imme­ diately to Mr. Goldman’s custody. They both returned to the United States a few days later. According to the State Department, there are approximately 50 unresolved cases of children abducted from the United States and living in Brazil. These high-profile cases are becoming more publi­ cized in a global, media-driven society, but they are only the most visible sign of cultural change. Until approximately 1970, children’s living arrangements chan­ ged little. Most children lived in two-parent households, and the parents were married. Societal changes – increases in unmarried parenthood, divorce, and remar­ riage, as well as the drug and HIV/AIDS epidemic – have

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affected living arrangements for children. According to the U.S. Census Bureau, between 1970 and 1990 the proportion of children living only with their mother doubled from 11 to 22%. Although the majority (70%) of children still live in two-parent households, 23% live with an unmarried mother. Approximately 1.6 million children live with a grandparent, with no parent present. In between are all sorts of combinations of ‘blended’ families with stepchildren and stepsiblings. More than 500 000 children whose parents have been judged unfit or unable to provide care are in foster care; they are legally wards of the state, and child welfare agencies make all decisions about their care. Some of these chil­ dren are reunited with a parent, but others remain in foster care, often with multiple placements, until they age out. Most custody decisions that reach a court arise from divorce proceedings. More than 20% of all American children younger than the age of 18 years – 13 million – live with a divorced single parent, with a remarried parent, or with an unmarried parent and his or her new partner. Each year, approximately 1 million children are affected by a new divorce. This is broadly representative of the position in other nations. Other custody decisions are the result of modern reproductive technology that has created new and per­ plexing dilemmas, even calling into question the definition of mother. With an estimated 2.5 million infer­ tile couples in the United States, adoption is one route out of childlessness. An estimated 2–4% of U.S. families include an adopted child. Finally, parental death or inca­ pacity due to HIV/AIDS, drug use, mental illness, incarceration, or other causes have led to new living arrangements for children. All these situations pose ethi­ cal as well as legal and social challenges. The ethical issues, which are explored in this article, include ques­ tions such as the relative value to be placed on biological, rather than relational, continuity as the basis of a custody decision; differences in international law regarding cus­ tody; the extent of the child’s involvement in and consent to the decision; how to assess competing interests in determining a child’s best interests; and the role of expert witnesses in child custody proceedings.

Changing Standards for Custody Decisions Historical background

Conflicts over the custody of children have an ancient history. In the Bible (l Kings 3:12–28), King Solomon made one of the best known custody decisions. Two women came before him, both claiming to be the mother of a 3-day-old boy. Both had given birth at the same time in the same house, but one baby died. Both women claimed to be the mother of the living child.

King Solomon called for a sword to divide the infant in two. One woman agreed, saying the child should be neither hers nor the other woman’s. The other woman begged the king to give the baby to her rival rather than kill him. This woman, the King announced, was the true mother and she was awarded the child. This case, the text asserts, proved that King Solomon’s prayers to judge his people with an understanding heart had been answered. Except for the dramatic threat of the sword, the situa­ tion has contemporary overtones. Grief at the death of an infant, appropriation of another baby, a custody proceed­ ing to determine the child’s placement, and a judgment about the child’s best interests are all the stuff of real life, as well as of modern fiction. Although custody practices varied somewhat in the ancient world, the most powerful tradition in terms of modern practice has been Roman law. The Roman doc­ trine of patria potestas gave unlimited power to the paterfamilias – the father, or oldest male in the family. Originally, fathers even had the right to sell their children into an intermediate state between free and slave or kill them if the children were unwanted or a burden. Even without this ultimate weapon, fathers had total legal control over their children, and mothers had none. Children were like property; because women had no property rights, they also had no rights over their children. This absolutist view of paternal authority began to weaken in the Western world in the mid-nineteenth century as advocates for women’s rights championed reforms. As childhood began to be defined in a modern conception as a distinct life stage with psychological as well as physical needs, women’s roles as nurturers assumed new, albeit still unequal, importance. In addition to new emphasis on the mother–child bond, social changes such as industrialization and urbanization sepa­ rated home from workplace. In these new economic arrangements, women were often deemed the more appropriate custodians. By the end of the nineteenth century, the doctrine of paternal power had been replaced by maternal preference or the tender years doctrine. That is, young children were perceived to be better off with their mothers than with their fathers if the parents did not stay together. States defined a child of tender years in many different ways, some limiting the definition to infant and young children younger than the age of 7 years, and others including any dependent minor. Preference for the mother was not unlimited. If, in divorce proceedings, a woman was shown to have engaged in adultery or other misconduct, her children, no matter how tender in years, were likely to be taken away from her. In general, children were awarded to the parent who had the strongest case for divorce, with no regard to the particular relationship between parent and

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children. Maternal preference continues in some coun­ tries. In Israel, for example, custody of a child younger than the age of 6 years is automatically awarded to the mother, although some attempts have been made to change the law. In Islamic countries, where religious courts make custody decisions, fathers have legal custody, but in case of divorce, mothers are expected to raise boys until the age of 7 years and girls until the age of 9 or 11 years and sometimes until they are married. Even in the United States, some judges show clear preference to mothers in custody decisions. The Best Interests Standard In the 1960s, the standards began to change again. Fathers’ groups complained that they were unfairly excluded as potential custodians. Women’s groups complained that a sex-based standard violated the equal protection guaran­ tee of the Constitution. In the 1970s, there was a new emphasis on psychological factors affecting child devel­ opment. In their enormously influential trilogy published in 1973, 1979, and 1986, Goldstein, Freud, and Solnit stressed the importance of continuity, a child’s sense of time, and the limits of law and prediction. They advo­ cated placing a child with the psychological parent. They later argued that state intervention should be kept to a minimum, as the least detrimental alternative. The final book focused on the roles of professionals in the child placement process. Other writers have criticized their views as overly focused on a nuclear family model, which fails to recognize culturally diverse structures, and on a single psychological parent, when children may have several significant adult figures in their lives. Some critics assert that there should be a return to a legal, rather than a social work, model. Although the best interests standard has clear advan­ tages over those used in earlier eras, it is so broad and vague that it is difficult to implement in practice. Many custody decisions are made amicably by parents. If, however, parents cannot agree, and a case comes to court, a judge will make the final determination. But on what evidence? Also, when evidence conflicts as it often does, what values come first? Both parents will probably have lawyers, and a parade of expert witnesses will testify that the child’s best interest is to be placed with the so-called good parent rather than the one who has proven his or her reputed unworthiness by bad deeds, bad moods, bad words, or bad checks. Determining who has been the child’s primary caretaker – a common test in many states – can become just another version of the maternal preference standard because in most cases, the primary caretaker is the mother. Real or purported sex abuse is often used as a trump card. Attorneys appointed to represent the child’s best interests (guardians ad litem) or the child’s preferences may have legal skills but no

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experience or training in evaluating a child’s develop­ mental and emotional needs. Judges may be swayed by their own experiences, stereotypes, and prejudices in making decisions. The subject of the hearings – the children themselves – may or may not be questioned about their preferences. In fact, preferences may be transitory, manipulated, or inconsistent with adults’ views. In sum, the historical progression from paternal to maternal preference to best interests has eliminated some inequities but has made custody cases more com­ plex and subjective. The adversarial nature of child custody cases that come to court has disturbed many child advocates. It is easy for children to become pawns in divorce disputes, and the process that appears to decide their best interests is fraught with potential for manipulation or power dif­ ferentials. No matter who is awarded custody, the children lose some relationship with the other parent. Moreover, it is difficult to maintain a loving relationship with both parents when the child’s loyalty to one has been undermined. Bauserman reviewed 33 studies comparing joint versus sole custody decisions in terms of the child’s adjustment. Although the sample sizes were very small, he concluded that children in joint physical or legal custody settings were better adjusted overall than children in sole custody decisions and no different from children in intact families. These children were also better adjusted in terms of specific measures such as self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Bauserman suggests that joint custody may be more advantageous because it facilitates an ongoing positive involvement with both parents. Of course, joint custody is not always possible or desirable, if one parent is unwill­ ing or unable to take on the responsibility. As the case of Sean Goldman in the introduction illustrates, in some cases the custody decision involves religion, politics, international law, or other events beyond the facts of the case or how a child’s best interests may be determined. Although court orders from other countries may be recognized in the United States under the Uniform Child Custody and Jurisdiction Enforcement Act, the reverse is not generally true. Many countries will not recognize U.S. court orders. More than 80 countries, including the United States, have signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, agreeing to resolve the custody decision in the jurisdiction where the custodial parent lived. Not all countries have signed the Hague Convention, and even in those that have, the outcome is not always clear-cut. One of the legal issues in the Goldman case was the Brazilian courts’ assertion that Sean’s placement was an ordinary custody decision, not a case that came under the Hague Convention as the Goldman lawyer and the U.S. State Department argued.

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In Islamic countries, marriages between Muslim and non-Muslim partners are governed by the religious law, or Shari’a. Mothers are not allowed to leave the country with their children without the father’s permission. These disputes can also arise from political considerations. In 1999, 6-year-old Elian Gonzalez was rescued at sea when the boat carrying him and his mother and other Cuban citizens capsized near Miami. Elian’s mother and the other passengers died, and Elian was given to the care of Florida relatives until a custody decision could be reached. Elian’s parents were divorced, and his father wanted to bring Elian back to Cuba to live with him. In ordinary circumstances, there would be no question that the father had custodial rights, but animosity against the Castro regime among Florida e´migre´s made this case a media sensation. In 2000, after several court battles, the Eleventh Circuit Court of Appeals ruled that an appeal for asylum, made by the Florida relatives, could not proceed over the father’s objections. Elian was returned to Cuba. Mediation is one option that tries to avoid the excesses of the adversarial system. This process, conducted by a trained mediator, tries to achieve a consensus in a nonconfrontational way by focusing on problem solving within a family system. Sometimes a decision may be that joint custody, or shared custody, is the best solution. Mediation does not always work, however. Critics argue, for example, that it perpetuates the power imbalance that characterized the marriage.

New Reproductive Technologies and Contract Motherhood As contentious as divorce proceedings can be, at least the basic facts of parenthood are not usually at issue. The dispute is most often between the biological mother and father. New reproductive technologies and the practice of contract or surrogate motherhood have added a new layer of complexity. The mother may be the woman who provides the ovum, or genetic material; the one who gestates the embryo and gives birth to the child; or the one who nurtures and cares for the child after birth. Although paternity is not so often at issue, the father may be a sperm donor or the husband who provides sperm for artificial insemination in a woman who has agreed to bear his child and give it to him and his wife to adopt and raise. The most famous case involving surrogacy was the 1987–88 Baby M case in New Jersey. Mary Beth Whitehead was hired by William and Elizabeth Stern, an infertile couple, to conceive a child with Mr. Stern’s artificially inseminated sperm. When the baby was born, Mrs. Whitehead refused to give her up as agreed. Ultimately, the New Jersey court ruled that although

the contract was invalid, the adoptive parents should have custody; the surrogate mother retained visiting rights. In 1988, the New Jersey Supreme Court ruled that surrogacy contracts are invalid, comparing them to the illegal practice of baby selling. Legislatures in some other states and countries have also barred or restricted surrogacy contracts, although the laws are often murky. In 1993, the California Supreme Court in the case of Johnson v. Calvert became the first court to consider the custody of a baby with two potential mothers – the woman whose egg had been fertilized by her husband’s sperm in vitro and the woman who had carried the implanted embryo to term. The court upheld the contract but did not rule on whether the genetic or gestational mother was the natural mother. It declared that which­ ever woman was the intended mother should have custody of the child. When embryos are created in vitro – that is, fertiliza­ tion takes place in a laboratory and the embryos are frozen for future use – there may be disputes about their fate if the parents divorce or disagree about their disposi­ tion. These cases clearly raise the question of whether the embryos are future children, whose custody should be determined by a best interests standard, or property, whose disposition should be determined by contract law. The Tennessee case of Davis v. Davis in 1992 illustrates this struggle. Initially, a divorce court viewed the dispute about the frozen embryos of Junior and Mary Sue Davis as a child custody case and awarded the embryos to Mrs. Davis because the best interests of the embryos involved being born and she intended to have them implanted with the hope of bringing a pregnancy to term. She later decided against implantation and wanted to donate the embryos to a fertility clinic. An appellate court did not accept this view and treated the embryos as property, in which each party had an equal right. The embryos could not be implanted or donated with­ out the father’s consent. The Tennessee Supreme Court rejected both views, declaring that the embryos were neither children nor property but had an intermediate status based on their potential for development. The characteristics and lim­ itations of this status were left largely undefined by the court. Although there have been many attempts to regulate custody in the context of increasingly complex reproduc­ tive technologies, most controversies are decided on a case-by-case basis, with few widely supported ethical or legislative principles to guide judicial decisions or to shape future policies.

Adoption If King Solomon’s decision is the prototype of custody decisions, then the story of Moses is the prototypical adoption story. The Bible (Exodus 2:2–10) tells how baby Moses’ mother placed him in a basket at river’s

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edge to avoid the Egyptian Pharaoh’s intent to kill all Hebrew baby boys. He was found and adopted by Pharaoh’s daughter. Moses later returned to his people and led them out of bondage. This story too has contem­ porary resonance: an interreligious adoption and a reunion with a birth family – in this case, a birth people. In Roman times, unwanted babies were frequently left in places where strangers might find them and adopt them. Such children were often treated as equals to nat­ ural children; they were granted a special, privileged status of alumnus, a dependent whose relationship with parents did not arise from blood, law, or property. Birth parents were permitted to reclaim children if they paid adoptive parents for the care they had delivered, but the bonds of affection that developed between adoptive par­ ents and children were also recognized. In modern times, a distinction developed between code law and case law countries. In countries dominated by the 1804 Napoleonic Code, such as France and Latin American nations, adopted children were given information about birth parents and permitted to keep their original name. Countries such as the United States that followed the example of English common law emphasized blood ties and did not permit strangers to adopt. Only in the 1920s did American states begin to legalize adoption, and then only with closed records. Approximately half of all adoptions take place within family units: stepparents adopting the children of their new spouse, grandparents adopting grandchildren, and other relatives making legal their informal caregiving and custodial arrangements. Another 20% are adoptions of foster children. Adoptions involving nonrelatives raise questions about the relative weight to be given to genetic linkages, the tension between confidentiality and need for health and other information, and the rights of children to know the circumstances of their birth and, if they choose, to find their birth parents. Adoption practice has changed dramatically in the United States in the past few decades. Most nonrelative adoptions until the 1960s and 1970s involved newborns who were as much like the adoptive parents in appear­ ance, religion, and background as possible, were placed in a new family with the aim of severing all ties to their past, and were surrounded by secrecy. As infertility became more common as a medical and social problem, adoption became a solution for childless couples, rather than as a placement for poor or orphaned children as it had been in the past. Adoption laws were passed to protect the con­ fidentiality of the adoptive parents and to remove the stigma of illegitimacy from the children. Birth parents had few or no avenues to reclaim their children or even to find out what happened to them. With the development of contraception, the legaliza­ tion of abortion, and decreasing stigma surrounding unwed motherhood, the supply of newborns, especially

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white infants, decreased. As a result, adoptions involving children who are different from their parents in religion, race, ethnicity, or country of birth have become more common. Furthermore, standards about who can adopt have loosened considerably. Older couples, single men and women, gay and lesbian couples, and couples of modest means can all, in some circumstances, become adoptive parents. Given the differences between these parents and their children, adoption is less likely to be treated as a family secret. Moreover, children are now told much more directly at an early age that they are adopted. Nevertheless, controversies remain. The rights of fathers, particularly fathers who were not notified of the adoption or even told that they were fathers, have featured prominently in some judicial cases. The U.S. Supreme Court in 1976 gave birth fathers equal rights to consent to adoption. The case of Baby Jessica is a cele­ brated example of the power of this decision. Born in February 1991 to Cara Clausen, an unwed mother in Iowa, Jessica was adopted at the age of 6 days by Roberta and Jan DeBoer, a Michigan couple. They believed that both birth mother and father had given up their rights. In fact, Ms. Clausen had lied about paternity, and the baby’s father, Dan Schmidt, learned about the baby only several weeks later. Then began a long and bitter court battle to determine custody. By 1992, the birth parents reunited and married. The final decision, made by the U.S. Supreme Court in 1993, returned Jessica to them. She was renamed Anna Schmidt. In this case, the courts saw a father’s rights to his child as paramount. Although so-called open adoptions, in which birth parents remain in contact with their children, have been seen as an alternative to traditional patterns of secrecy, state laws so far have failed to give birth parents any rights in these arrangements. Some advocacy organizations, such as Concerned United Birth Parents, promote the primacy of biological ties and the right of children to know and to be reunited with their birth parents. Other advocacy organizations, such as the National Council for Adoption, support adoptive parents’ rights to confidenti­ ality and to the protection of laws that make adoptions final after a specified time. Most childless couples seeking children are white; most children available for adoption are African American, biracial, or from other ethnic minorities. Opponents to this type of adoption argue that black children raised in white families lose their black identity and have difficulty growing up in a world that does not accept them either as black or as white. Supporters claim that children need love, nurturing, and protection, all of which can be pro­ vided equally well by white as well as black parents. Furthermore, white families can give black children opportunities to develop cultural identity. Children

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mired in foster care, with multiple placements and no continuity of care, are denied the benefits of family life. The most recent attempt to address this controversy is the 1996 federal welfare reform bill, which gave a boost to interracial adoptions by providing that states receiving federal funds may not discriminate on the basis of race in adoption. A special law, the 1978 Indian Child Welfare Act, gives Indian tribes the exclusive authority to consent to adoptions of Indian or part-Indian children. International adoptions are becoming more common, especially as celebrities adopt children from poor coun­ tries. Many are still controversial. In these cases, children are removed from their native lands and birth families, and they grow up in a totally different culture. Opponents claim that these children will suffer the loss of their language, cultural background, and family iden­ tity as a result of this dislocation. Proponents claim that these children have often been abandoned, do not receive good medical care, and might die or otherwise suffer lifelong consequences if they are not removed. Some U.S. parents have adopted girls abandoned in Chinese orphanages because their parents, limited to one child, want a boy. With the breakup of the Soviet Union, children from Eastern Europe are being adopted by U.S. families. Korea and Latin American countries are other sources. The circumstances in which some birth parents give up their children in these countries may involve less than voluntary, informed consent. At the same time, unscru­ pulous entrepreneurs may misrepresent the status or health of babies to potential adoptive parents. For exam­ ple, children from India have been abducted or sold to child traffickers and offered to unsuspecting adoptive parents in Australia. The Australian government has fro­ zen the adoptions orchestrated by the Indian and Malaysian agencies involved in these cases. The Australian families, some of whom have had the children for 8 years, are struggling with the new information and the decision of whether to contact the birth parents. Before a child can be placed with adoptive parents, the rights of the birth parents must be terminated legally. If the parents are dead or have been adjudged unfit because of child abuse or mental illness or other reasons, this may be just a formality. However, in many cases a parent may be ambivalent, contest the termination, and delay closure. This again pits the interests of birth parents against those of potential adoptive parents, leaving the child without permanency and stability. In some cases, arrangements can be made for the birth parent to visit the child, but these are not legally enforceable once the adoption is final. Termination of parental rights may be the best option, but legal papers do not erase a child’s past attach­ ment to a birth parent, even if it was filled with psychic and physical pain.

In 1994, the National Conference of Commissioners on Uniform State Laws proposed a Uniform Adoption Act. This act has been adopted in only one state (Vermont). It generally favors the interests of adoptive parents in being assured that an adoption is final; to the degree that this coincides with the child’s interests, it can also be seen as sensitive to children’s interests. As the Australian case illustrates, parents who adopt a child in good faith and later find that they were misled can become enmeshed in a legal limbo. The model law attempts to specify the rights and obligations of biologi­ cal fathers and sets a 6-month limit for fathers who were not informed to contest the adoption. The model statute also urges courts to deal with adoption cases speedily, and it emphasizes the importance of established parent– child relationships in determining preferences for custody. Child welfare agencies have become much more flex­ ible and responsive to the varying needs of children and parents as a result of societal changes, public pressure, and advocacy from all perspectives. Nevertheless, old prac­ tices and beliefs die hard. Regulation by government agencies should be concerned with ensuring that private adoptions (without agency intervention) meet acceptable standards and that nonprofit agencies work toward sensi­ tive and speedy assessments.

Custody Planning for Terminally Ill Parents The death of a parent is a traumatic event in any child’s life. When the other parent survives and has enough resources to support the children emotionally and finan­ cially, custody does not usually become an issue. The surviving parent retains legal custody. In single-parent families, or cases in which the surviving parent lacks resources to care for the children, other relatives may step in. Foster care, either with kin (as is permitted in several states) or with nonrelatives, is a last resort. In recent years, the increased mortality due to HIV/ AIDS among women, especially African Americans and Latinas, has created a new set of custody issues in a population already struggling to deal with the impact on families of drug use, violence, and poverty. Traditionally in the communities hardest hit by HIV/AIDS and drugs, as in ethnic, racial, and religious minorities, informal placements with relatives are preferred to any involve­ ment with lawyers and courts. As long as no medical, educational, or serious behavioral problems arise, these arrangements work well enough. When there is a crisis, or even under ordinary conditions such as entering school, the informal placement may be jeopardized and the child may be removed by child welfare authorities. Informal arrangements can also be legally challenged by another

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relative – for example, a long-absent father who now wants custody. To try to ensure greater stability and permanence in placement after a parental death, and to keep children from entering the costly foster care system, 19 states and the District of Columbia have passed standby guardian laws; 4 other states have legislation that incorporates key elements. Although they vary in detail, these laws pro­ vide that a parent with a chronic, life-threatening, or terminal illness may name a guardian to take over the care of her children in case of death, incapacity, or another triggering event. Unlike a regular guardianship proceeding, the parent does not have to give up custody at the time. Also, unlike a will, in which judges have great discretion in accepting or rejecting the deceased parent’s choice of guardian, the future guardian is approved by a judge while the parent is alive and can give her reasons for choosing this person. Standby guardianships, however, have some limita­ tions. There may not be a suitable person to name, or the named person’s ability or willingness to be a guardian may change in the months or even years following the initial discussion. In states such as New York, where a parent may choose simply to designate a standby guar­ dian on paper without going to court, the designation is viewed as evidence but does not guarantee the judge’s decision. Finally, court approval of a standby guardian generally makes that person ineligible for any financial benefits, such as kinship foster care, that might be essen­ tial to support the child. This provision in itself poses an ethical dilemma for society: A custody plan that offers greater likelihood of continuity and permanence for an orphaned child than an informal arrangement also deprives the guardian and the child of potential financial support. Although it is in the child’s best interests for a parent to plan for future custody, insofar as it is possible, some­ times parents’ wishes may conflict with what others believe is best for the child. A mother’s dying wish may be for her eldest daughter who is only 17 years old to take responsibility for the younger children and to keep them together. The mother’s wish may be understandable but unachievable; adolescents are sel­ dom equipped, financially or emotionally, to take on long-term caregiving responsibilities. Alternatively, a father may choose as guardian someone whose past history indicates a poor chance of fulfilling the role because of mental or physical illness or someone he has just met. In these cases, the situation is often com­ plicated because there is no one else more obviously suited to the role. The alternatives then become a risky choice of guardian or foster care placement. Many foster parents do an excellent job; however, foster care typi­ cally involves multiple placements, where the quality of caregiving varies considerably.

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Conclusions Although genetic relationships have long been the basis of social organization, family structures have changed throughout history. The nuclear family, considered in the United States for many decades to be the norm, is no longer the typical family structure. Many children live in families with one genetic parent, that parent’s married or unmarried partner, or with their grandparents, other relatives, foster parents, adoptive parents, or other com­ binations of adults and children. The child custody system is slowly catching up with social changes by recognizing that for some children it is not possible or desirable to live with their biologic parents, and that alternative relationships can be mutually supportive. At the same time, the power of blood ties remains. This basic identification is now supported by rapidly develop­ ing genetic research that provides important health and perhaps even behavioral information. It is likely that this tension between genetic links and psychological bonds will remain in the child custody arena. Neither exists without the other; both should be considered in making custody decisions. Mental health professionals who become expert wit­ nesses in child custody cases have a special responsibility to weigh the impact of their testimony not only on adult clients but also on the children who are the subjects of the proceeding. Because the best interests standard is so broad, the professional may influence the decision by selecting certain factors to present and not discussing others. Judges may be convinced by the professional’s authoritative manner rather than by the substantive infor­ mation. On the whole, however, psychologists are becoming more thorough and evidence based in their assessments and following the 1994 guidelines of the American Psychological Association, which stress exper­ tise, competence, and objectivity. The expectation of confidentiality that prevails in the therapeutic setting does not fit well with the adversarial nature of a legal case. If the client waives the confidenti­ ality privilege in order to bring his or her own therapist into the courtroom, information may be revealed that may be damaging to the client’s case. However, if the therapist is not called, it may seem as though the client has something serious to hide. To advance the client’s case in court, the therapist may be forced to jeopardize the therapeutic relationship. In situations in which there is no prior therapeutic relationship, the professional may not have the time or the access to sensitive information on which to make a reasoned recommendation. In the future, it seems likely that more custody disputes will be carried out in the media. A constant news cycle demands content, and the human drama of parents fighting over a child will always make good entertainment, if not

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good decisions. In the past, only very wealthy parents had this option; now publicity avenues are open to all. Lawyers representing parents should consider the impact on chil­ dren of public disclosures of parental infidelity and misconduct. On the more positive side, it seems likely that custody decisions will be more creative and more flexible. Fathers who have been involved in all aspects of their children’s lives are more likely than fathers in earlier generations to be committed to continuing this role, even if the marriage has failed. Parents themselves may suggest workable cus­ tody arrangements, given the complex nature of their jobs, responsibilities, and the children’s lives and activ­ ities. Moving away from rigid standards and stereotypes to the specific characteristics of a child will lead to better outcomes for children and parents. More research, particularly longitudinal studies, should be conducted on outcomes in different custody arrangements. The impact on children of divorce, remar­ riage, and family rebuilding does not end at age 18 years; many adults still have unresolved anger over the way their parents’ divorce was handled and have difficulty in their own relationships as a result. On the international side, given the increasing number of cross-cultural adop­ tions and abductions, a review of how the Hague Convention is working or not and what changes might be needed would be valuable. Children are not property, although they are some­ times treated as if they are; neither should they be pawns in parental disputes, although they almost always are. Historically, there have been different models of parent­ hood: children as quasi-property, the parent as beneficent guardian, and mutual bonds and reciprocities. In this view, the relationship is central. This sense of mutual commitment – the very essence of family – should be the basis for an ethic of parenthood that values children for their inherent worth and for an ethic of custody decision making that places this value above all others. See also: Adoption; Children’s Rights; Confidentiality, General Issues of; Family, The; Reproductive Technologies, Overview; Stewardship.

Further Reading American Bar Association (2006) Guide to Marriage, Divorce & Families: Everything You Need to Know about the Law and Marriage, Domestic Partnerships, and Child Custody & Support. New York: Random House. Archard D (1993) Children: Rights and Childhood. New York: Routledge.

Bartholet E (1993). Family Bonds: Adoption and the Politics of Parenting. New York: Houghton Mifflin. Bauserman R (2002) Child adjustment in joint-custody versus solecustody arrangements: A meta-analytic review. Journal of Family Psychology 16(1): 91–102. Blustein J (1982) Parents and Children: The Ethics of the Family. New York: Oxford University Press. Boswell J (1988) The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance. New York: Random House. Bow JN and Quinnell FA (2001) Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association guidelines. Professional Psychology: Research and Practice 32(3): 261–268. Goldstein J, Freud A, Solnit AJ, and Goldstein S (1986) In the Best Interests of the Child. New York: Free Press. Guggenheim M, Lowe AD and Curtis D (1996) The Rights of Families. Carbondale: Southern Illinois University Press. Markens S (2007) Surrogate Motherhood and the Politics of Reproduction. Los Angeles: University of California Press. Peters K (1996) The roles and content of best interests in client-directed lawyering for children in child protective proceedings. Fordham Law Review 64(4): 1505–1570. Rohrbaugh JB (2008) A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives. New York: Springer. Shiono PH and Quinn LS (1994) Epidemiology of divorce. The Future of Children: Children and Divorce 4(1): 15–28. Stolley KS (1993) Statistics on adoption in the United States. The Future of Children: Adoption 3(1): 26–42.

Relevant Websites http://www.abanet.org/publiced/practical/child.html – American Bar Association, Division for Public Education. http://www.apa.org/practice/childcustody.html – American Psychological Association, ‘Guidelines for Child Custody Evaluations in Family Law Proceedings.’ http://topics.law.cornell.edu/wex/Child_custody – Cornell University Law School Legal Information Institute. http://www.hcch.net/index_en.php?act¼conventions.text& cid¼24 – Hague Conference on Private International Law, Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). http://travel.state.gov/family/abduction/resources/ resources_546.html – U.S. State Department, ‘International Child Custody Disputes.’

Biographical Sketch Carol Levine directs the Families and Health Care Project at the United Hospital Fund in New York City. She was the director of The Orphan Project: Families and Children in the HIV/AIDS Epidemic from 1991 to 1996. She is the co-editor (with Geoff Foster and John Williamson) of A Generation at Risk: The Global Impact of HIV/AIDS on Orphans and Vulnerable Children (Cambridge University Press, 2005). She has an M.A. in public law and government from Columbia University.

Cyborgs K Warwick, University of Reading, Reading, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary C-Leg A microprocessor knee prosthesis that enables amputees to vary their walking speeds and travel over varying terrains, for example, up and down stairs. Cyborg Cybernetic organism, part biological, part technological. For a human this would mean technology integral with the body that enhances the individual above the human norm. Electroencephalography (EEG) Positioning of small electrodes either on or under the skin of the skull, to establish electrical contact with the brain. Global Positioning System (GPS) A space-based global navigation satellite system that provides location and time information anywhere on or near the Earth for which there is an unobstructed line of sight to four or more GPS satellites.

Definition The term ‘cyborg’ arose as a short form of ‘cybernetic organism,’ which is an entity made up of both biological and technical elements. Initially it was used to describe any system of this mixed type; however, it has more recently been employed specifically for entities where the biology and technology are integrally attached, thereby removing people riding bicycles or wearing glasses from the definition. To be called a cyborg, it is normally the case that the entity has abilities above and beyond those exhibited by either its biological or its technological parts alone. This has possibly come about due to fictional stories in which the cyborg has mental and/or physical capabilities that are far beyond those of humans. A counter example to this is the use of the expression, probably by the media to hype the story line, to describe an amputee who has been given an articulated leg or arm or a patient suffering from a neurological disorder who has received a stimulating neural implant. While potentially broader definitions are acknowl­ edged, in this article the common understanding of a ‘cyborg’ is taken to be appropriate. So the focus here is on humans or animals that are enhanced mentally and/or physically over and above the ‘norm’ with integral tech­ nology, rather than cases where technology is merely

Integral technology Technology that is positioned directly inside the body, where it performs specific functions interactively. Myoelectric (EMG) Electrical potentials from voluntarily contracted muscles within a person’s limb, collected on the surface of the skin. These can be used to control the movements of a prosthesis, such as elbow flexion/extension. Photoreceptors Photosensitive cells in the retina of vertebrate (e.g., human) eyes. Radio frequency identification device (RFID) The use of a tag applied to or incorporated into a product, animal, or person for the purpose of identification and tracking using radio waves. Tourette’s syndrome An inherited neuropsychiatric disorder with typical onset in childhood, characterized by physical (motor) tics and/or vocal (phonic) tics.

worn and/or is employed purely for restorative or ther­ apeutic purposes, or even to enhance an individual in comparison with his or her own problematic state. It has to be pointed out, however, that there is by no means a clear divide between enhancement and therapy in this situation. Before continuing, it is worth pointing out that this article is concerned mainly with actual cyborgs. Hence it does not deal with cyborgs in art, cyborgs in popular culture (such as science fiction), or social cyborgs, which are directed toward road or city networks. What follows is a look at cyborgs in different contexts, in particular med­ icine and sport, with subsequently a discussion of animal­ (rather than human-) based cyborgs, which can give an indication of what might one day also be possible in terms of humans.

Medicine Although primarily aimed at restoring an individual back to his or her original capabilities by means of replacement limbs or functions, some technologies also offer the possibility of taking things further and extending perfor­ mance beyond original capabilities. Many human individuals now exist with the aid of integral technology. The actual technology involved

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700 Cyborgs

ranges from an implanted pacemaker to artificial/repla­ cement hips to implants to assisted hearing, and even to an artificial heart. In some cases (with the artificial heart, for example), the implant may possibly be merely a hold­ ing state, to keep the patient alive until a transplant is available. Conversely, it may be either an attempt at a direct replacement of a malfunctioning biological original or an aid to try to ensure that the biological original continues to perform its duties reasonably well. Part of the cyborg family are people with artificial legs or arms. For example, the C-Leg system is an artificial leg used to replace a human leg that has been amputated. The leg contains a number of sensors such that, under microprocessor control, the leg can alter its gait to best replicate the natural gate of the user. There is no reason why such a leg could not ultimately outperform the original in terms of speed of operation or power. In terms of artificial arms, the i-Limb hand is a fivedigit hand with individually powered fingers that can be controlled by myoelectric signals generated by muscle movements in the remaining part of the person’s limb. A better example in this category perhaps is the work of Todd Kuiken at the Rehabilitation Institute in Chicago. When an individual has had an arm (or two) amputated, leaving functioning nerve fibers to the arm in place but no longer useful, then these nerves can be redirected in order to control a replacement bionic arm (or two). The surgical technique involves grafting some of the nerves, which were originally controlling the amputated arm, to functioning muscles so that these muscles contract when the subject thinks about using the amputated hand. Electric signals from these muscles can then be used to control the artificial hand via the traditional myoelectric route using externally positioned electrodes. When only the lower part of the individual’s arm has been amputated, muscles higher up in the arm can be used for this purpose. However, if the entire arm has been removed, muscles in the upper chest can be employed, with external electrodes positioned on the outer chest to monitor appropriate muscle movements in order to trans­ late these signals into control signals for an articulated arm replacement. The first person to benefit from this technology was Jesse Sullivan, a power worker who, in 2001, received replacement bionic arms when both his originals arm were amputated at the shoulder following an electrical accident. Much research is presently being conducted in the area of retinal microchip implantation, to replace mal­ functioning visual input in humans. As one example, microchips, which contain up to 5000 solar cells, have been implanted into the back of the eye. When light strikes the solar cells, it is converted into electrical signals that travel through the optic nerve to the brain and are interpreted as an image. In this way the silicon acts as a replacement for a malfunctioning retina. The

replacement retina has a diameter of 2 mm. The 2-h operation is done through an incision in the sclera (the white part of the eye) and the chip is inserted into a pocket beneath the retina. The device presently only displays black-and-white images and works best in very well lit rooms, but it is hoped that the addition of more solar cells on the chip and general technological advances will improve results dra­ matically. Much of this technology relies on the ability of the human eye to accept silicon chip implants. Numerous patients have now tested this device over a number of years and all report improved vision; however, at present this is far from a restoration to anything like normal vision and is certainly not at the stage of experimentation on super-vision (incorporating a wider frequency spectrum). Other research is far more formative and is yet to show similar practical results. For example, a different retinal prosthesis is being developed by a group led by Joseph Rizzo. Rather than being positioned near the photorecep­ tors, the chip will be positioned near the ganglion cells, which send nerve impulses to the brain. The prototype uses a camera mounted on a pair of eyeglasses to capture and transmit a light image to the chip. The light and images are converted into electrical impulses, which are transmitted to the brain along the optic nerve. It has to be said, though, that this is all rather speculative. Already well developed and commercially available are cochlear implants. These are surgically implanted electronic devices that provide a sense of sound to a person who is profoundly deaf or severely hard of hear­ ing. A cochlear implant does not amplify sound, but works by directly stimulating any remaining functioning auditory nerves inside the cochlea with an electric field. External components of the cochlear implant include a microphone, a signal processor, and a radio frequency transmitter. A radio frequency receiver is implanted beneath the skull’s skin. The receiver relays the incom­ ing signal to the implanted electrodes in the cochlea. The implant even now gives recipients additional audi­ tory information, for example, enabling the ability to understand speech in quiet environments. It is quite possible, though, for the normal auditory sound input frequency range (in humans, typically up to a maximum of 20 kHz) to be extended in the future. Over 150 000 people worldwide have already received cochlear implants, the vast majority of these being in developed countries due to the high cost of the device, surgery, and postimplantation therapy. A small but grow­ ing number of the recipients have bilateral implants (one implant in each cochlea). Once an implant is in place, the recipient has to be trained to recognize the signals now being received via the auditory input, a feat that may involve learning to understand signals with frequencies not previously entertained.

Cyborgs

Another type of implant that is now widely used is that employed for deep brain stimulation. This has thus far mostly been used to overcome the effects of Parkinson’s disease, by sending electrical impulses into the globus pallidus or subthalamic nucleus regions of the brain. Although the present technology involves the application of a continual stimulation signal, research is ongoing to predict when parkinsonian conditions (tremors, dystonia) are shortly to occur such that a stimulating signal is only applied to stop the effects before they start. This research requires accurate modeling of the rele­ vant part of the brain such that a computer is employed to predict what the human brain is going to do some time before it actually does it. The same type of stimulator can be used in constant stimulation mode to overcome the effects of clinical depression, Tourette’s syndrome, and epilepsy; however, the novel predictive technique opens up the possibility not only for the treatment of a variety of neurological disorders such as these but also for its use in a plethora of ways where signals within the brain can be monitored and used to infer what will subsequently be decided by the brain.

Brain–Computer Interfaces A small number of research groups have experimented with implants positioned in the brain of humans for com­ munication purposes. Although the humans involved have, in most cases, been in a relatively poor medical condition, the technological potential of such experimen­ tation is possibly much wider than that already discussed. One line of research has been focused on patients who have suffered a stroke, resulting in paralysis. The most relevant is the use of a brain implant that enables a physically incapable brainstem stroke victim to control the movement of a cursor on a computer screen. Functional magnetic resonance imaging (fMRI) of the subject’s brain was initially carried out to localize where activity was most pronounced while the subject was thinking about various movements. A hollow glass elec­ trode cone containing two gold wires was then implanted into the motor cortex, in the area of maximum activity. When the patient thought about moving his hand, the subsequent activity was detected by the electrode, then amplified and transmitted by a radio link to a computer where the signals were translated into control signals to bring about movement of the cursor on a computer screen. The subject successfully learned to move the cursor around by thinking about different movements. Eventually, the patient reached a level of control where no abstraction was needed – to move the cursor he simply thought about moving the cursor. This could therefore be regarded as replacing some of the recipient’s original

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functions or as giving the individual the ability to move the cursor by neural signals alone. Some of the most impressive human research to date has been carried out using a microelectrode array, con­ sisting of 100 electrodes. The individual electrodes are only 1.5 mm long and taper to a tip diameter of less than 90 mm. Human tests are at present limited to two reported studies. In the second of these the array was employed in a recording-only role. Activity from a few neurons moni­ tored by the array electrodes was decoded into a signal that enabled the recipient to position a cursor on a com­ puter screen, using neural signals for control combined with visual feedback. The first use of the microelectrode array, however, has considerably broader implications well beyond the con­ cept of therapy and that give the best reflection of a practical cyborg to date. As a step toward a broader concept of human–machine symbiosis, a microelectrode array was implanted into the median nerve fibers of a healthy human individual in order to test bidirectional functionality in a series of experiments. A big difference between this and the studies already discussed is that signals could be both input to and output from the nerve fibers. A stimulating electric current directed into the nervous system allowed infor­ mation to be sent to the user, while control signals were decoded from neural activity in the region of the electro­ des. In this way a number of experimental trials were successfully concluded. In particular: (ultrasonic) input was successfully imple­ • Extrasensory mented and made use of. Extended control of a robotic hand across the Internet • was achieved, with feedback from the robotic fingertips

• • •

being sent back as neural stimulation to give a sense of force being applied to an object (this was achieved between the United States and the United Kingdom). A primitive form of telegraphic communication directly between the nervous systems of two humans was performed. A wheelchair was successfully driven around by means of neural signals alone. The color of jewelry was changed directly as a result of neural signals – as indeed was the behavior of a collec­ tion of small robots.

In these studies there was no therapeutic, restorative need for the implant. The individual’s nervous system was plugged directly into the Internet, thereby allowing for the remote control of technology by neural signals alone and also for the input of remote sensory stimulation. Essentially, the individual involved had his nervous sys­ tem extended across the Internet – a true cyborg, a human with integral technology, exhibiting a number of powers not available to regular humans.

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Sport At the present time some of the physical aspects of cyborgs are starting to raise questions regarding human sporting value judgments drawn, particularly in athletics. It is already the case that the world record time for completing a marathon in a wheelchair is much lower than that for completing the same distance on two legs, but it is difficult to regard the wheelchair itself as being an integral part of the body; hence classifying such individuals as cyborgs is perhaps out­ side the scope. What is more pertinent is the use of artificial/techno­ logical legs as a replacement for biological legs. As an example, Oscar Pistorius is a South African double ampu­ tee (both his legs were removed from halfway between knee and ankle) who competes in sprint races with J-shaped carbon fiber add-ons called the Cheetah FlexFoot. The general ruling from the International Amateur Athletic Federation is that Pistorius and other would be cyborgs can compete with regular humans as long as they do not employ ‘‘any technical device that incorporates springs, wheels or any other element that provides a user with an advantage over another athlete not using such a device.’’ Clearly, the ruling is a precarious one and opens up arguments as to which differences present an advantage and which do not. For instance, it has been alleged that the ‘blades’ Pistorius uses are longer than is necessary, allowing him to cover more ground in each stride. It has also been claimed that the Cheetahs return more energy per stride without ever becoming fatigued or requiring the same ‘investment of energy’ and that they are not subject to the lactic acid buildup that slows down human athletes. It is anticipated that many other sports will soon face problems of dealing with cyborg participants when they wish to compete with regular humans.

Animals Nonhuman animal studies can be considered to be a pointer for what is potentially achievable with humans in the future. As an example, in one particular animal study the extracted brain of a lamprey, retained in a solution, was used to control the movement of a small wheeled robot to which it was attached. The lamprey innately exhibits a response to light reflections on the surface of water by trying to align its body with respect to the light source. When connected into the robot body, this response was utilized by surrounding the robot with a ring of lights. As different lights were switched on and off, so the robot moved around its corral, trying to position itself appropriately.

Meanwhile in studies involving rats, a group of rats was taught to pull a lever in order to receive a suitable reward. Electrodes were then chronically implanted into the rats’ brains such that the reward was proffered when each rat thought (one supposes) about pulling the lever, but before any actual physical movement occurred. Over a period of days, four of the six rats involved in the experiment learned that they did not in fact need to initiate any action in order to obtain a reward; merely thinking about it was sufficient. The same team also carried out studies in which rats, with implanted electro­ des, were controlled remotely to negotiate a maze. An operator at a computer terminal could cause the rat to turn right or left at a junction merely by pressing a button. In another series of experiments, implants consisting of microelectrode arrays were positioned into the frontal and parietal lobes of the brains of two female rhesus macaque monkeys. Each monkey learned firstly how to control a remote robot arm through arm movements coupled with visual feedback, and it is reported that ultimately one of the monkeys was able to control the arm using only brain-derived neural signals with no asso­ ciated physical movement. Notably, control signals for the reaching and grasping movements of the robotic arm were derived from the same set of implanted electrodes.

Growing Brains In another project, rat neurons were separated using enzymes and then cultured/grown on a flat multielectrode array. The neural culture, a self-contained biological brain, was electronically stimulated via the electrodes (inputs) and its electronic response witnessed on other electrodes (outputs). The project involved networking the biological brain with a robot mobile platform. The input (sensory) signals to the brain were solely the signals obtained from the wheeled robot’s ultrasonic sensors, thereby giving the brain a sense of distance. The output from the biological brain, meanwhile, was used to drive the robot around. The overall cyborg, with a physical body and biological brain, then learned to move around in a corral without hitting objects. The research is aimed at understanding basic func­ tioning of the brain, particularly memory, and hence this cyborg is useful as a testbed for research into such as Alzheimer’s disease. It is anticipated that before long, human neurons will replace the rat neurons in this study.

Other At present there are a range of other studies and technol­ ogies that could be seen, by some, as being indicative of cyborg technology. It is worthwhile to take a brief look at each in turn.

Cyborgs

•

RFID: Radio frequency identification devices, when employed as implants, can give the recipient a variety of abilities not exhibited by humans. While they do not alter any functions within the human body and are not them­ selves affected by any bodily activity, when activated they do send a personal identifying signal to an external recei­ ver that can be used to carry out functions (e.g., open doors automatically, switch on lights) for that specific individual without the individual having to press a button or flick a switch. Magnetic implants: Small magnets can be placed under the skin, allowing objects to be magnetically attached to the body. One purpose is for sensory experi­ mentation, in which the movement of the implant in the presence of magnetic fields can be felt by the individual. EEG: Electroencephalography is perhaps the most studied noninvasive interface, mainly due to its ease of use, portability, and low setup cost. Unfortunately, it is susceptible to noise, requires extensive training, and has relatively low resolution with poor repeatability. A num­ ber of groups have used the output from external scalp electrodes measuring EEG to drive a computer cursor or vehicle. Often the process is extremely slow, requires months of training, and is highly unreliable. Although individuals wearing such electrodes can appear ‘cool’ for a media image, especially when linked with the term ‘cyborg,’ the technology is certainly not integral with an individual and it is difficult to claim that the person is doing something that they could not otherwise do, in most cases a lot more effectively, in an easier way.

• •

Concluding Remarks If the application of this technology is limited to thera­ peutic means, then there may be a few who grumble about its use, but on the whole it is widely accepted. When it comes to human enhancement, however, the picture is less clear. Surely individuals should be allowed to upgrade themselves if they want; if not, then what hap­ pened to our important values concerning the freedom of the individual? Conversely, the upgrading of a few humans could realize a new sect and even, ultimately, a new species with abilities well beyond those of humans. So shouldn’t such technological progression be curtailed? But therapy and enhancement cannot be simply sepa­ rated with a thick line between them. For example, a new ultrasonic sense could provide a person who is blind with the ability to detect objects and move around much more rapidly on his or her own and thereby regain dignity. Who could deny that? On the other hand, exactly the same technology on an individual with normal vision would give that person an extra sense. Is it right for some individuals to have more senses than others? But, on the other hand, if the technology is available, it seems a

703

little stupid to restrict its use to a small group of indivi­ duals – particularly if there is commercial gain, with jobs and livelihoods to benefit. It is apparent that the whole area of cyborgs raises enormous ethical and societal topics that are not at all clear. Even addressing issues as to what animal research is carried out and whether or not human neurons should be cultured in a robot body can stir up a variety of feelings. Historically, it is often commercial and military aspects that carry the most weight, and here it is clear that enhancement will take place, quite simply because the available technology provides a distinct advantage. At this point in time, as this article has shown, the age of the cyborg is merely at its beginning, but it is clearly in the ascendency. See also: Bioinformatics and Ethics; Biometric Technologies, Ethical Implications; Clinical Ethics; Neuroethics/Brain Imaging; Technology, Ethics of: Overview.

Further Reading Chapin JK (2004) Using multi-neuron population recordings for neural prosthetics. Nature Neuroscience 7: 452–454. Chow AY and Chow VY (2007) Subretinal artificial silicon retina microchip implantation in retinitis pigmentosa. In: Tombran-Tink J, Barnstable C, and Rizzo J III (eds.) Visual Prostheses and Opthalmic Devices, Chapter 4. Totowa, NJ: Humana Press. Clynes ME and Kline NS (1960) Cyborgs and space. Astronautics 26–27 and 74–75. Donoghue J, Nurmikko A, Friehs G, and Black M (2004) Development of a neuromotor prosthesis for humans. In: Advances in Clinical Neurophysiology, Supplements to Clinical Neurophysiology, Chapter 63, Vol. 57, pp. 588–602. Amsterdam: Elsevier. Jensen RJ and Rizzo JF (2007) Responses of ganglion cells to repetitive electrical stimulation of the retina. Journal of Neural Engineering 4(1): S1–S6. Kennedy P, Andreasen D, Ehirim P, King B, Kirby T, Mao H, and Moore M (2004) Using human extra-cortical local field potentials to control a switch. Journal of Neural Engineering 1(2): 72–77. Kuiken TA, Li G, Lock BA, Lipschutz RD, Miller LA, Stubblefield KA, and Englehart KB (2009) Targeted muscle reinnervation for real-time myoelectric control of multifunction artificial arms. JAMA 301(6): 619–628. Marks P (2008) Rat-brained robots take their first steps. New Scientist 199(2669): 22–23. Nicolelis M, Dimitrov D, Carmena J, Crist R, Lehew G, Kralik J, and Wise S (2003) Chronic, multisite, multielectrode recordings in macaque monkeys. Proceedings of the National Academy of Sciences of the USA 100(19): 11041–11046. Reger B, Fleming K, Sanguineti V, Simon Alford S, and Mussa-Ivaldi F (2000) Connecting brains to robots: An artificial body for studying computational properties of neural tissues. Artificial Life 6(4): 307–324. Special Issue on Robot Ethics and Human Ethics, Beavers A (ed.), Ethics & Information Technology 12. Warwick K (2003) Cyborg morals, cyborg ethics, cyborg values. Ethics and Information Technology 5(3): 131–137. Warwick K (2004) I, Cyborg. Champaign, IL: University of Illinois Press. Warwick K (2010) Implications and consequences of robots with biological brains. Ethics and Information Technology 12(3): 223–234. Warwick K et al. (2010) Controlling a mobile robot with a biological brain. Defence Science Journal 60(1): 5–14.

704 Cyborgs Warwick K, Gasson M, Hutt B, et al. (2003) The application of implant technology for cybernetic systems. Archives of Neurology 60(10): 1369–1373.

Relevant Websites http://news.bbc.co.uk/1/hi/sci/tech/374377.stm – John Chapin. http://www.kevinwarwick.com – Kevin Warwick, Cyborg Experiments. http://www.ossur.com/?PageID¼13008 – Oscar Pistorius. http://www.ric.org/research/centers/necal/index.aspx – Rehabilitation Institute of Chicago Neural Engineering Center for Artificial Limbs. http://www.youtube.com/watch?v¼1-0eZytv6Qk – Robot with a biological brain.

Biographical Sketch Kevin Warwick is Professor of Cybernetics at the University of Reading, England, where he carries out research in artificial intelligence, control, robotics, and cyborgs. Kevin was born in Coventry, UK, and left school to join British Telecom, at the age of 16. At 22 he took his first degree at Aston University, followed by a Ph.D. and research post at Imperial College, London. He subsequently held positions at

Oxford, Newcastle, and Warwick Universities before being offered the Chair at Reading, at the age of 33. As well as publishing over 500 research papers, Kevin’s experi­ ments into implant technology led to him being featured as the cover story in the U.S. magazine Wired. Kevin has been awarded higher doctorates (D.Sc.) by both Imperial College and the Czech Academy of Sciences, Prague, and received Honorary Doctorates from Aston University and Coventry University in 2008. He was presented with The Future of Health Technology Award by MIT, was made an Honorary Member of the Academy of Sciences, St. Petersburg, and in 2004 received the IEE Senior Achievement Medal and in 2008 the Mountbatten Medal. In 2000 Kevin presented the Royal Institution Christmas Lectures entitled ‘The Rise of the Robots.’ Kevin’s most recent research involves the invention of an intelligent deep brain stimulator to counteract the effects of Parkinson’s disease tremors. Another project involves the use of cultured/biological neural networks to drive robots around. Perhaps Kevin is though best known for his pioneering experiments involving a neurosurgical implantation into the median nerves of his left arm to link his nervous system directly to a computer to assess the latest technology for use with the disabled. He was successful with the first extrasensory (ultra­ sonic) input for a human and with the first purely electronic telegraphic communication experiment between the nervous systems of two humans.

D

Darwinism C Spahn, Keimyung University, Daegu, Korea ª 2012 Elsevier Inc. All rights reserved.

Glossary Adaptation The suitability of an organism for its environment in terms of chances for survival and propagation. Homology A similarity of traits in different organisms due to their shared common ancestry. Mutation A change in the phenotype due to a change in the germ cells. Natural selection The causal mechanism proposed by Darwin to explain evolutionary change: Random changes in the process of inheritance and differences between the organisms lead to differential chances for survival in the environment so that ‘better adapted’ organisms out-compete others and ‘get selected.’ Neo-Darwinism A term for Weismann’s version of Darwinism and later theories following his view that insists on a separation of somatic and germ cells: Individually acquired traits of an organism can therefore not be inherited.

Introduction Nowadays some biologists and philosophers criticize the term ‘Darwinism’ as being too broad or imprecise, or as suggesting that Darwinism is an ideology rather than a scientific theory or a research paradigm. As a research program it has turned biology from ‘natural history’ (that only described animal traits and behavior in their func­ tionality and adaptation and that mainly focused on a taxonomic investigation of ordering and comparing spe­ cies without explaining their origin and the origin of the functionality of their special traits) into a causal science in the modern sense. The term Darwinism was first coined by Thomas Henry Huxley (1825�95) in a review of Darwin’s book On the Origin of Species in 1860. Also, Alfred R. Wallace (1823�1913) suggested using the term Darwinism for

Neo-Lamarckism Any theory of evolution that proposes in opposition to Neo-Darwinism that individually acquired traits of an organism could be inherited. Sexual selection The struggle of organisms for chances of reproduction in opposition to natural selection in the narrower sense that focuses on the struggle for survival of an organism in relation to its environment. Struggle for existence A phrase used by Darwin to describe the fight for survival and chances of reproduction resulting from the high fertility rate of most organisms and the scarcity of resources that could not feed all organisms that were born. Ultimate explanations Explanations in biology that focus on the adaptive function of a trait or behavior of an organism in opposition to proximate explanations that describe the causal mechanisms in effect within a trait or behavior.

the theory that he himself and Darwin proposed, thereby acknowledging the superior importance of Darwin’s work. Despite the changes from Darwin’s theory, the correc­ tion of many errors, the integration of new insights, and many open controversies, it has proven to be a fruitful and successful paradigm that integrates the many different subdisciplines of biology. According to the biologist Ernst Mayr (1904�2005), it can be said to be the ‘‘center of gravity’’ of modern biological research. The evolution­ ary biologist Theodosius Dobzhansky (1900�75) emphasized the importance of Darwin’s idea even more strongly in his famous statement, ‘‘nothing in biology makes sense except in the light of evolution.’’ While some of the main tenets of Darwin’s theory of evolution have remained unchanged, the integration of a theory of inheritance (Mendelian and modern genetics), new

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debates about the unit of selection, the controversy between adaptationism and anti-adaptationism, new questions concerning the connection between evolution and development, and still-controversial new ideas about the integration of Neo-Lamarckism into the theory of evolution all mark important steps in the evolution of the theory of evolution itself. The impact of Darwin’s theory outside of biology and its implication for the investigation of culture and the self-understanding of humans in general is – although controversial – immense. Ever after Darwin, scientists, philosophers, and general public debate focused on the relevance and fruitfulness or illegitimacy and defective­ ness of applying Darwin’s principles to the study of human life and culture. As indicated previously, the examination and propagation of important insights and consequences of Darwin’s theory in philosophy, cultural studies, and ethics are sometimes also referred to as Darwinism or a ‘Darwinistic worldview.’

Darwin’s Theory of Evolution Predecessors and Premises of Darwin’s Theory Darwin (1809�82) was not the first to hold evolutionist ideas about a transgression of species, but he was the first to come up with a plausible suggestion about a possible mechanism for evolutionary change. Before Darwin, the main obstacle in developing a theory of evolution was a certain literal interpretation of Genesis 1, where it is said that God created each species individually and com­ manded that they should produce offspring of their own kind. Also, everyday empirical evidence did not support a transgression from one species to another: Any offspring of any known biological species shares all the traits of the species. The second main obstacle was the amazing adaptation of almost all organisms to their very specific environment, the astonishing ‘design’ and functionality of the organs and instincts of many living creatures that allows each of them to survive under their own special circumstances. Many organisms fit so excellently into their environments that it was hard to imagine how the origin of such an adaptation could be explained just by the principles and forces known to modern causal natural sciences. Everything in life seems to be purposive, but this princi­ ple of teleology was completely alien to the paradigm of modern science that was established by Kepler (1571�1730), Galileo (1564�1642), and Newton (1643�1727). In the eighteenth century this adaptive design of many organisms even became one of the most important arguments for the existence of God in William Paley’s (1743�1805) theological writings, which Darwin also studied in his youth.

Besides the authority of the Bible and the problem of giving an explanation for the amazing adaptations in the world, many scholars in the eighteenth century believed that the Earth could not be much older than 6000 years, a period of time that is too short to allow an explanation of the vast number of different species by a slow and undir­ ected transgression from one species to another. Still, in the anti-clerical encyclopedia of Diderot (1713�84) and D’Alembert (1717�83), Baron d’Holbach (1723�89) esti­ mates the age of the Earth as not much older than 6000 years. Therefore, a profound change in the geological theories and assumptions was one of the first important presuppositions of Darwin’s ideas. Most importantly James Hutton (1726�97), and later Charles Lyell (1797�1875), advocated a view called ‘uniformism’ or ‘actualism’ that was, however, controversial until Darwin’s time. They argued that the geological history of the Earth must be explained by the very same forces that we see at work today, the still ‘actual’ and active forces that very slowly and gradually change the surface of the Earth. If you assume that the mountains, valleys, coasts, etc., have been shaped by the very slow processes of wind, erosion, accumulation, elevation, and so forth – and not by sudden catastrophic events like George Cuvier (1769�1832) suggested – then the Earth must be much older; indeed, it must even be millions of years old. This idea of gigantic geological transformation due to slow and gradual change heavily influenced Darwin’s thinking. On his 5-year journey as a researcher on the Beagle, he carried a copy of the first volume of Lyell’s book Principles of Geology with him. Darwin later famously stated that he always had the feeling that his own theory was directly coming ‘‘out of the brain of Lyell.’’ This is of course an exaggeration, but you can see how certain aspects of the theory of evolution are already implied by Lyell’s thoughts. If you combine the idea that God created each species with a special adaptation for its environment, and if the Earth in its surface and shape slowly but in the end radically changes over time, then also the organism must change slowly, in order to stay adapted. Another important step toward the discovery of the theory of evolution was the immense comparative work that was done by Carl von Linne´ (1707�78). The diffi­ culties in determining whether an organism should be regarded as constituting a species in its own right or as a mere variety led to an increasing awareness that the strong opposition suggested by the distinction between the concepts of species and varieties might not always fit the facts. Darwin’s own intensive work of determining and comparing species opened his mind to the new idea that varieties could, over time, slowly accumulate their differ­ ences, and thereby transform after a long time into a new distinct species.

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The taxonomic work also showed many surprising homologies across very different species. The skeletons of humans, horses, rabbits, and whales reveal a common ‘bauplan‘ (structure) that suggests ‘common descent and modification’ as one possible explanation for this surpris­ ing fact. At the end of his life Linne´ believed that God might have only created the main biological genera with constant traits, but that the design of the individual species could slowly change over time and might not be constant. Therefore, the idea of evolutionary change was already discussed and ‘in the air’ before Darwin’s theory emerged, but what was missing was a plausible suggestion of a causal mechanism of such changes and adaptations. Darwin’s own grandfather, Erasmus Darwin (1731�1802), held evolutionary views, and Jean-Baptiste Lamarck (1744�1829) famously proposed a theory of goal-directed evolutionary change. Lamarck’s theory is, however, insuf­ ficient, because he only thinks about changes within a species: According to him, all species were created inde­ pendently and then develop higher and higher, with men therefore being the oldest species, because he had improved himself the most. Secondly, Lamarck still uses a teleological mechanism to explain such change. Even though later on Darwin also suggests that the use or disuse of an organism might contribute to its specific appearance in the next generation, he focuses on a causal and nonteleological mechanism: the combination of ran­ dom changes and a certain kind of selection. The Logical Structure of Darwin’s ‘One Long Argument’ Darwin’s theory of evolution by natural selection can be summarized in the form of ‘one long argument,’ as Darwin himself describes it. Darwin starts with the fact of the uniqueness of the individual organism. Sometimes in the offspring of one organism some individual traits stand out, and they can be inherited. These facts are well known to breeders, so Darwin begins his book with an analysis of the effects of selection in breeding, whereby certain traits can be reinforced if only some animals of a population are allowed to propagate. The uniqueness and slight varia­ bility of individual traces and the fact that some of them are inheritable are therefore Darwin’s starting point. The second observation of Darwin is the high fertility rate of many, if not almost all, organisms. By citing calculations from Linne´, Darwin comes to the inevitable conclusion that if there were no forces that check against this ‘over­ production’ of organisms, then within a few generations the world would be overcrowded by the offspring of just one individual. Simply put, not every organism that was born could have survived and left offspring. Therefore, Darwin concludes that there must be a ‘struggle for survival’ among the organisms. Darwin thereby applies

and generalizes insights from the economist Thomas R. Malthus (1766�1834), who argued that the high ferti­ lity rate in humans would always out-compete the gradual improvement of production of food; therefore, the problem of poverty in an ever-growing population of humans will remain a severe problem. It is this scarcity of resources as a result of high fertility that, according to Darwin, drives the struggle for exis­ tence and that leads to differential survival. In this struggle, some individual traits will be profitable and thereby tend to work in favor of the preservation of an individual. If these qualities are inherited, then the off­ spring will also have this advantage and will out-compete other individuals. This process is labeled by Darwin in an analogy to selection in breeding as ‘natural selection’. Natural selection ‘chooses’ from the occurring differences (‘mutations’ or ‘variations’ in Darwin’s terminology) those features that tend to increase the chances for survival and reproduction (labeled ‘fitness’). Darwin argues that this process eventually leads over long periods in an accumu­ lation of small differences to the origin of new species and to the astonishingly complex and highly functional ‘adap­ tations’ (‘designs’) that we find everywhere in nature. Darwin distinguishes natural selection in the narrower sense (the competition for survival against the environ­ mental conditions and other organisms) from sexual selection, that is, competition against organisms of the same kind for sexual reproduction. These two kinds of selection can be in conflict or tension with each other: Female choice or aesthetic pre­ ferences in birds might have shaped the impressing tail feathers of the argus pheasant. (Darwin assumes that birds have an aesthetic taste.) It might help in the competition for replication to have the most beautiful and impressing tail feathers. However, these feathers might diminish the survival chances of the individual animal, because they are a handicap in the everyday struggle for survival. On the other hand, it might more often and more likely be the case that sexual selection also favors external signs of fitness such as healthiness, a strong body, and strong weapons, that is, signs that show good survival chances regarding natural selection in the narrower sense. Famously, Amotz Zahavi (b. 1928) in 1975 combined these two ideas by saying that even to favor nonadaptive or maladaptive traits in sexual selection might sometimes be adaptive. If the mate could survive even with a handi­ cap of long feathers he must be especially fit in other regards in order to compensate for that. There is a remarkable elegance in this ‘one long argu­ ment’ because it starts with very simple facts and observations (variability, high fertility, finitude of resources) and carefully exploits the consequences: The high fertility rate implies as a consequence the scarcity of resources and implies thereby a struggle for existence. These facts combined with the uniqueness of the

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individual, together with the assumption of the heritabil­ ity of some of those traits, lead necessarily to differential survival, that is, natural selection. This again leads over time to the accumulation of differences and could explain the slow and gradual transformation from one species to another. Supporting Evidence and Open Questions of Darwin’s Account In addition to the argumentation outlined above, Darwin presents much empirical evidence for his theory and mentions many strange facts that would be inexplicable under the idea of a special creation of each species, but that could easily be explained by his theory. The aston­ ishing homologies between different species that were already mentioned almost ask for an explanation along the lines of common descent and modification. Moreover, rudimentary organs and atavisms, especially maladaptive traits, could be more easily explained by this theory. Why should God create a land goose with webbed feet, since this is of no use for her? Furthermore, how could a foreign plant introduced to another remote country sometimes out-compete a native plant, if the native plant was espe­ cially designed for that location whereas the foreign plant was not? But not only does Darwin collect much evidence from fossil records, embryonic development, geographical distribution of organisms and so forth, to support his theory. His book is also remarkable in another respect. It discusses at length some of the most important objections that could be made against the theory. Thereby it fulfills in an exceptional way Karl Popper’s (1902�94) criteria for good or open science. You should not only try to prove your theory, but also look at the open questions and arguments that could possibly falsify it. In Darwin’s book many passages not only present the evidence and the ideas of evolution, but also aim at a refutation of counterarguments and at an open discussion of the diffi­ culties of the theory. Darwin knows, for example, about the extreme incom­ pleteness of fossil records, and he tries to explain why intermediate forms – so-called ‘missing links’ between two different species – are very unlikely to be found. Intermediate species are more unstable, and the competi­ tion between closely allied species or even within a species is the strongest, because they compete directly for the very same kind of resources, leading to the pres­ sure of ongoing diversification and to the extinction of middle forms. In this context it was a big success for Darwin’s theory that 1 year after the publication of his book, ‘Archaeopteryx’ – the missing link between reptiles and birds – was found. Darwin also discusses the many problems that his argument from selection pressure raises for the

explanation of complex organs and adaptations: Only a whole, complete, and ready-to-use wing is useful and not maladaptive. It is, however, sometimes not easy to see how the necessary intermediate steps could be of any use for the organism; they can sometimes only be thought of as being nothing but a burden. Since Darwin rejects the idea of sudden complex changes in the structure of organ­ isms he must find a gradualist answer to the problem, and he suggests a shift of function as one possible way to get from one given helpful and adaptive structure to another successor of this organ with a different function. Ernst Mayr, following Nikolaas Tinbergen’s (1907�88) four questions for ethologists, emphasizes the explanatory value of Darwin’s theory in this way. Biology deals with the direct explanation of animal traits and behavior: What are the causal, biochemical mechanisms that produce, for example, a wing and that could explain the morphogenesis of a certain organism? What is the biochemistry of digestion? Besides these so called ‘prox­ imate’ questions, Darwin’s idea of evolution by natural selection asks for something like an ‘ultimate’ explanation. You don’t only want to know how certain features in a given organism come about or grow, or how and on what elicitors certain instincts operate, but also why they were selected. What was the reason or specific advantage of a certain trait? What must the possible competitors have looked like; what kind of environment must have existed over a long time so that such a trait could have evolved? After Darwin, biology aims thereby at a coherent picture that combines and integrates knowledge from such different fields as molecular genetics and biochem­ istry, morphology, taxonomy, earth history and geology, environmental studies, and ethology. Biological classifica­ tion no longer has to search for the ‘true essence’ of a species, but becomes a genealogical enterprise insofar as species are intermediate transitory states of populations brought into existence and shaped by random change and natural selection.

Darwinism after Darwin: From Darwin to Modern Biology The Discovery of the Gene and the Integration of Genetics Darwin freely admits that his theory lacks any cogent account for the mechanisms of inheritance, and he admits that science of his time is still ignorant about the causes that produce change and variety within the organic world. Only with the discovery of DNA and with more research in modern genetics was it possible to correct and replace Darwin’s own proposal (the so-called pangenesis hypoth­ esis, that is, the idea that germ cells would receive ‘information’ via small particles called gemmulae from

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the organs of the individual phenotype and thereby guar­ antee that it is transmitted to offspring, where it is mixed with the information of the other parent organism). Mendel presupposed a differing view from Darwin’s, namely, that inheritance is not a process of blending, but that certain traits are transmitted discretely rather than mixed. Wilhelm Johannsen (1857�1927) suggested in 1909 the hypothetical terminus ‘gene’ for whatever the mechanism or substance of inheritance might consist of. August Weismann (1834�1914) insisted in opposition to Darwin (and of course to Lamarck) that individually acquired traits of an organism could not be transmitted by inheritance, since the biochemical mechanisms only allow the expression of information from the gene (the so-called genotype) to the individual organism (the so-called phenotype), but that there is no mechanism by which acquired information could be processed in the opposite direction. The genome is thereby something like a read-­ only memory. This view that freed Darwin’s theory from all Lamarckian elements was soon called ‘neo-Darwinism.’ After a lasting dispute between microbiology, bio­ chemistry, and population genetics, it was Theodosius Dobzhansky, Julian Huxley (1887�1975), and Ernst Mayr who integrated modern genetics, the calculation of population biology, Weismann’s doctrine, and Darwin’s insight in the mechanism of natural selection into a proposal called ‘synthetic theory‘ or ‘modern synth­ esis,’ thereby fulfilling and elaborating the synthetic suggestions that Weismann had already made. Open Questions and Further Disputes: Gene-Centrism and the Different Levels of Selection and Random Chance vs. Selection Pressure The most important debates within Darwinism after Darwin can be grouped according to two questions. First, what is the unit of selection; what is the best way to balance the causal influences of genes, organisms, groups of organ­ isms, and environmental factors? Second, what is the best way to balance the tension between randomness, chance, and contingency in the historical process of evolution and the idea of adaptation, selection, and functionality? The question about the ‘unit of selection’ is related to the conceptualization and discovery of the ‘gene.’ It is the individual organism that must struggle in the fight for survival, but it is not the organism itself, but rather only its ‘transmitted information’ that survives. That evolu­ tionary biology should therefore focus on the gene as the main unit and target of selection was famously advo­ cated especially by Richard Dawkins (b. 1941). Dawkins suggests that from an evolutionary viewpoint we should not look at organisms as individual actors but maybe as something more like a ‘vehicle’ for their genes that ‘aim at’ replication and therefore ‘use’ the organism.

Dawkins argues against the view of traditional etholo­ gists that appealed to the idea of the ‘preservation of the group’ or even ‘the species’ to explain the widespread cooperation and altruism in the organic world within groups of certain animals. If you define altruism in biolo­ gical terms as diminishing your chances of survival and reproduction in favor of some other organism, and if you define egoism as exploiting the cooperation of others for the propagation of your genes whenever you can, then it is almost a tautology that unselfishness defined in this way is not an evolutionary-stable strategy. It must under almost all circumstances be out-competed by an ‘egoistic strategy.’ But there is cooperation and altruism in the animal world. How can we explain this within the para­ digm of natural selection? Dawkins, synthesizing new insights of rational choice or game theory, and the evolutionary mathematical mod­ els and ideas of R. Trivers (b. 1943), J. Maynard Smith (1920�2004), and W. D. Hamilton (1936�2000), suggests that firstly altruism could be disguised egoism on the individual level: The gazelle might not altruistically jump high to draw the attention of the lion away from a sick member of the group. It could also be that it is the other way round, namely, that by displaying her strength and demonstratively jumping, the gazelle could show that it is of no use for the lion to follow her as a target, thereby egoistically suggesting that the weak animal is an easier target. Secondly, we could have an evolutionary explana­ tion of altruism only if the cooperation is reciprocal, or thirdly if it is ‘in the interests’ of the genes, not of the individual organisms. Hamilton claims that altruism is more likely to occur between closely related animals if they share many genes (this theorem is known as Hamilton’s rule). Altruistically helping another member of your kin to survive and thereby to have further chances of propagation could sometimes be an indirect and some­ times an even more promising way to propagate your own genes, because it is likely that they are also present in your close kin. By helping close kin or its own offspring to reproduce, an organism raises its so-called ‘inclusive fit­ ness.’ Since the gene is a unit that, by definition of ‘shared inherited information,’ transcends the individual organ­ ism, it can obviously easily be used to explain cooperation and altruism within the Darwinian paradigm without appealing to the idea of a common interest of the species or the group. However, Dawkins’ views are controversial, not only for the consequences one might draw about human life or because of the metaphoric language of egoism and altruism on a level where there is no intention, but also because within biology, both genetic determinism and the idea that only genes could be the target of selection remain disputed issues. Alternative solutions to explain altruism have been proposed, and new theories, for example, those of P. J. Richerson (b. 1943) and R. Boyd (b. 1948),

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E. O. Wilson (b. 1929), and D. S. Wilson (b. 1949), again advocate mathematical models for group selection or selec­ tion on many levels. Furthermore, insights from modern developmental studies have shifted the focus away from genes. Genes might be just one causal element in explaining phenotype expression or even behavioral patterns. In recent debates epigenetic and environmental factors are empha­ sized more and more. Even certain aspects of the idea of a somewhat Lamarckian evolution, that is, the relevance of information processing of individually acquired traits, are – although controversial – again being discussed. Since Darwinism accepts two somewhat opposite principles, the principle of random or not-fitness-directed change and the principle of natural selection, it is natural that most other debates in modern evolutionary biology beyond the causal controversies concerning the impor­ tance of genes, organisms, groups, and environment can be grouped according to which of the two sides of Darwinism they emphasize: randomness and chance versus selection pressure, accumulation of functionality, and ‘improvement’ as a result of the severe competition and selection. (Further debates concern, for example, the speed of evolution: Must it always be regarded as a slow, gradual process or should one assume longer periods of time of slow or even no change interrupted by a sudden process of big change, as the theory of punctuated equili­ brium from S. J. Gould (1941�2002) and N. Eldregde (b. 1943) suggests?) S. J. Gould and R. Lewontin (b. 1929) accused evolu­ tionary biologists of overemphasizing adaptation. Not everything in an organism can be explained as an adapta­ tion that raises the fitness of an organism. Since evolution has to deal with the internal constraints determined by the history of a species and the limited possibilities within a certain structure for further modification, some advanta­ geous varieties could be simply ‘out of reach.’ Furthermore, many traits that look functional could be by-products with no survival value, like the spandrels of the Basilica di San Marco, which have no architectural function, even though it looks like they do. Two other ways to emphasize the limitation of the range of the principle of natural selection are, firstly, an emphasis on the mere historic contingency: Some bene­ ficial mutation might, even though possible within the given constraints, just not appear, or the bearer of it might not survive due to chance, etc. One way to put this is to say that, if you turn back time and let evolution start again from any given moment, the results will be completely different. Secondly, new research resulting from molecular genetics suggests that if you define evolu­ tionary change by a change in the frequency of certain gene variants in a given population or gene pool, another random process that accomplishes such a change might be just genetic drift, that is, a consequence of the normal random processes and chance of gene recombination in

reproduction that is not driven by adaptive pressure. This effect could be calculated statistically and could have a strong effect so that the majority of changes on the mole­ cular level are only a product of this drift and not of natural selection, as M. Kimura (1924�94) argues, thereby opposing the established view of evolution of R. A. Fischer (1890�1962), who thought that processes like drift could only play a minor role in opposition to the influence of natural selection. On the other hand, one might emphasize the idea of evolutionary trajectories and evolutionary pressure necessarily given by ongoing competition. For example, Simon Conway Morris (b. 1951) argues that instances of ‘evolutionary convergence’ should be looked at in more detail. Several ‘inventions’ of evolution might have occurred again and again independently in different lines of organisms. Different organic structures could ful­ fill the same function or solve an ‘evolutionary design problem.’ This approach does not imply that evolution is necessarily aiming at a further and higher development, but it stresses the likelihood of certain kinds of ‘invention’ or evolutionary solutions due to the enormous time span and the given pressures of competition and different possibilities to realize the same function in analog, rather than homolog, fashion. All of these controversies, the debate about balancing the causal influence of genes and about behavior on the individual or the group level and environmental factors, and the debate surrounding the different kinds of tensions between ‘change and necessity’ are, however, all debates that fall within the framework of Darwinism.

Darwinism and Humanities Ever since Darwin, philosophers and biologists have tried to evaluate the consequences of the Darwinian paradigm for an adequate understanding of humans. How much in human behavior and thinking is a product of evolution and can thereby be explained by Darwinian principles, and how much do we owe to culture, understood as a process that freed us from biological necessities and determinations and that needs an explanation on its own? Ideally, three approaches can be distinguished. Biological reductionism tries to eventually reduce humanities to a special branch of biology insofar as it claims that the main tenets of human culture and behavior could only be completely understood from an evolution­ ary biological viewpoint. In particular, the advocates of sociobiology and lately evolutionary psychology defend a view that explains uniquely human traits in light of evo­ lution, emphasizing the need to reformulate and rethink basic concepts of the humanities so that they fit and don’t contradict the insights of evolutionary biology. Even within philosophy, traditional questions have, from

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Darwin’s time on, again and again been discussed in light of the evolutionary theory leading to new paradigms like evolutionary epistemology, evolutionary ethics, and evo­ lutionary aesthetics. Besides this mere biological reduction, one can think of cultural evolution as being Darwinian in a merely structural sense: Whenever there is scarcity of resources, mechanisms of inheritance, compe­ tition, and the possibility of variation, you can apply the Darwinian idea of natural selection. This application of Darwinism on culture was advocated by S. Blackmore (b. 1951), following Dawkins. In culture, ideas, concepts, music, religions, customs, etc., are in competition for ‘instantiation.’ These cultural units that are reproduced by human actions or thinking have been called ‘memes’ in analogy to the term gene. This extension of Darwinism can be understood as a biologization: Only those memes that fit with the evolved brains of humans have better survival chances. In this reading the meme theory comes close to evolutionary psychology. Or one can emphasize a mere structural analogy: Memes are ‘replicators’ on their own, they also can ‘use’ humans like a ‘vehicle’ and some­ times even override the interests of genes, maybe even free us from biological or gene determination. In this way, the theory comes closer to sociobiology, which is also open for a mathematical and structural analysis of beha­ vioral strategies, whether these strategies are used by organisms, computers, or ‘rational agents.’ ‘Culturalists‘ or ‘nurturists,’ on the other hand, empha­ size the difference between pre-human evolution and human culture, arguing that culture and civilization have basically freed us from the competition and struggle for existence that is a presupposition of natural selection to work and yield results. They insist that biology can only contribute a small or even negligible amount to the questions of the humanities and cultural studies. Like the theory of evolution and the programs of biological reductionism, this debate about the influence of Darwinism on human studies � which is sometimes referred to as the ‘nature-nurture question’ � has also gone through many phases and changing assessments. Naturally, also in philosophy the paradigms of evolution­ ary epistemology, ethics, and aesthetics remain controversial. Beyond the controversy of naturalists and culturalists more synthetic approaches can be found that attempt to integrate the insights about the uniquely human traits as described and analyzed by the traditional humanities, and the knowledge of the biological roots and determination of human traits in a comprehensive picture that is not one-sided. From Herbert Spencer to Social Darwinism Darwin himself tried to draw some cautious consequences from his theory for the study of humans in his book The Descent of Man in 1871. Darwin tries to explain the specific

morphology and body appearance, but also the mental, intellectual, and moral capacities of humans along the lines of an evolutionary approach. While he completely acknowledges that there are differences in the capacities and abilities of man and animals, he tries to explain these differences in terms of common descent and gradual modification. At Darwin’s time, Herbert Spencer (1820�1903) developed a philosophical view of an overall evolution, incorporating Darwinian ideas. Herbert Spencer coined the slogan ‘survival of the fittest’ for Darwin’s conception of natural selection, and Spencer argued that since there is a connection betweens man’s conduct and its consequences, too much help for the poor or too much intervention from the state or in the name of charity would hinder the flourishing natural evolution of societies. These ideas led via radicalization and simplifi­ cation to the doctrine of social Darwinism. Social Darwinism embraces the idea that there is a struggle for survival between different races, societies, and individuals, that cultural differences between the races have a biological basis, and that culture should not be used to free us from this struggle, because this would lead to ‘weakness and decay.’ Instead, we should foster it because it leads to an improvement of mankind, which in itself is in contradiction to Darwinism, because Darwin rejects the idea that natural selection as such must lead to higher or better results. Nevertheless, social Darwinism became a popular ideology in the beginning of the twen­ tieth century, but it found strong opposition even then. The main aim to overcome humanistic impulses of charity and sympathy in order to foster an ongoing com­ petition was opposed and labeled immoral by Darwin and by those philosophers who insisted that ethics cannot be naturalized in this way, as G. E. Moore pointed out against Spencer. The ideological idea that there could be biological differences between races that shape cultural differences was also anti-Darwinian, since it was opposed to Weismann’s neo-Darwinian doctrine that individual traits and culturally acquired differences could not be inherited, as the anthropologist A. Kroeber (1876�1960) pointed out. After and during this phase of the ideological embra­ cement and distortion of Darwinism, more thoughtful and balanced views have been discussed. Culturalistic Views: Cautious Integration or Rejection of the Evolutionary Approach German philosophical anthropology from M. Scheler (1874�1928) and H. Plessner (1892�1985) to A. Gehlen (1904�76) focuses on the peculiar ‘deprived nature’ of humans. We are comparably weak animals, lack natural weapons, and are prematurely born, and our instincts seem to be reduced. In short, evolutionary biology – not ideas of a special creation – could perhaps explain the

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process that led to a creature that is so unfit for the struggle of survival that it needs culture and special cognitive powers and inventions of tools and so forth to compensate. According to this view, evolution itself has freed us from natural selection by driving us to a point where we need culture to survive. Therefore, biological knowledge might be useful in explaining human nature, but only insofar as it explains the origin of a creature that could and must leave nature behind via cultural inven­ tions. Biology could therefore not account for the autonomous cultural process. An even stronger dividing line can then be found in the works of A. Kroeber and the cultural studies of early ethnologists such as F. Boas (1858�1942) or R. Benedict (1887�1947), who emphasized the autonomy of culture from biological determination. The discovery of the rich­ ness and plurality of cultures led to the rejection of the idea of a ‘common human nature’ or ‘human universals’ such as marriage, property, given and fixed display rules of emo­ tional expressions, etc., all of which were famously called fake universals by Clifford Geertz (1926�2006). The cul­ turalists argue that a common biological nature could not account for this overwhelming plurality. The plurality of human culture must therefore be explained by cultural evolution alone. A. Kroeber – like E. Durkheim (1858 �1917) – had stressed the autonomy of culture in regard to individual human intentions, thus opposing both a psy­ chologization and a biologization of cultural studies. Ethology, Sociobiology, and Evolutionary Psychology In recent debates, on the other hand, ethologists such as Konrad Lorenz (1903�89) and N. Tinbergen applied Darwinian principles in order to partly explain human behavior. The basic idea is that not only bodily traits but also our behavioral patterns and our mental makeup are a product of Darwinian evolution. Against the view of Freudian psychology, which claims that there is a lifefostering drive (‘eros’) and an independent drive for destruction (‘thanatos’), Lorenz stresses that aggression is a necessary inheritance from our evolutionary past. It cannot, therefore, be a trait that is opposed to life and preservation, but must be an adaptive tool or means for survival. Simply put, Lorenz tries to reconcile us with the ‘dark sides’ of our biological nature by examining so-called evil as a trait that is necessary and ‘good’ in a certain sense; it is good for our survival. We should there­ fore deal with it responsibly and understand its biological necessity and origin. It is fascinating to see, however, how within a few gen­ erations in ethology the paradigm, and with it one could even say its ‘spirit’ or ‘mood,’ has changed. The next gen­ eration of ethologists, namely, the sociobiologists, stresses the opposite idea. Cooperation and altruism – the so-called

‘noble’ or ‘good sides’ – need an explanation, if you dismiss the concept of group selection. What appears to be good is now something less noble: Behind altruism lies egoism. Sociobiology looks at human behavioral patterns and stra­ tegies from a Darwinian viewpoint: it asks about the way in which a certain human behavior or strategy raises the inclu­ sive fitness of its actor and applies this question to all domains of human life, from mating strategies to sexual behavior to parental investment and so forth. Evolutionary psychology claims to leave sociobiology behind and to be the ‘missing link’ between biology and cultural studies. Evolution has shaped man; man shapes culture. J. Tooby, L. Cosmides (b. 1957), J. H. Barkow, D. M. Buss (b. 1953), and others no longer look for the direct evolutionary survival and reproduction value of human strategies, like sociobiology did, but rather try to understand human behavior as an expression of a mind that was shaped by evolution. Instead of asking why a certain behavior might today be adaptive and beneficial, they ask what is the underlying mental makeup in our actions that must have been adaptive in the long process of humanization? Evolutionary psychologists criticize certain ideas of modern cognitive science and psychology that would contradict, as they see it, the evolutionary paradigm. The human mind cannot be something like a ‘general purpose computer’; it must be a complex organ­ ism with many special adaptations that are not ‘content neutral.’ We find ‘cognitive preparedness’ and domainspecific learning in both animals and humans. Therefore, we cannot think of ourselves as having reduced instincts, but rather as having very many complex instincts. The idea of cultural relativism should in this view be revised: Behind certain differences in the cultural phenotype or expression, we may find the same traits of a common human mind shaped by Darwinian evolution. Conclusion: Balancing Continuity and Difference? Because a Darwinian explanation has consequences for many fields concerning human self-understanding from sexuality to emotions, from passions to intellectual and even moral capacities, and since there seems to be a tension between the idea of biological determination and human freedom, these issues will remain controver­ sial. It is important to see, however, that there is not a dividing line between biology and the humanities. As we have seen, one finds biologists who oppose and heavily criticize the overemphasis on biological determination, stressing cultural influences, and there are philosophers who embrace biological reductionism. For example, Boyd and Richerson advocate a ‘dual inheritance’ model that assumes a complex interplay and co-evolution of the biological and cultural mechanisms of inheritance and tradition.

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The remaining issue for future research remains diffi­ cult. How can we understand the existing difference between humans and animals without overemphasizing or downplaying them? What evolutionary mechanisms, what kind of adaptations or accidents have enabled us to find the way to culture? One promising approach can be found in the very recent and influential, but of course also somewhat controversial, works of Michael Tomasello, who tries to explain the difference between humans and higher apes by certain uniquely human adaptations. In particular, our social and communicative abilities (being able to engage in ‘joint attention’ and acts of ‘shared intentionality’) might have led to the ‘take-off’ of human culture that slowly accumulates commonly achieved traditions by faithful replication and intentional individual improvement. In this view, cultural learning might be the result of a special biological adaptation that, however, leads to a different kind of development that is or can be goal-directed, inten­ tional, and non-random. Just finding the right way to separate or align cultural and biological evolution remains an open task, but at least within the realm of biology any explanation and answer must be essentially Darwinian. See also: Evolutionary Perspectives on Ethics; Human Nature, Views of; Nature Versus Nurture.

Further Reading Darwin C (1859) On the Origin of Species by Means of Natural Selection. London: J. Murray. Darwin C (1871) The Descent of Man, and Selection in Relation to Sex. London: J. Murray. Dawkins R (1976) The Selfish Gene. Oxford: Oxford University Press. Dawkins R (1982) The Extended Phenotype: The Gene as the Unit of Selection. Oxford: Freeman.

Jablonka E and Lamb MJ (2005) Evolution in Four Dimensions: Genetic, Epigenetic, Behavioral, and Symbolic Variation in the History of Life. Cambridge, MA: MIT Press. Mayr E (1997) This Is Biology: The Science of the Living World. Cambridge, MA: Belknap Press of Harvard University Press. Spahn C (2010) Sociobiology: Nature-nurture. In: Birx J (ed.): 21st Century Anthropology: A Reference Handbook, Thousand Oaks, CA: SAGE, in press.

Biographical Sketch Christian Spahn, born in 1974, studied Philosophy, German Literature, and Communication Science in Essen, Germany, and at the University of Notre Dame, U.S.A. He received his M.A. in 2000 from the University of Notre Dame and pursued his Ph.D. at the RWTH Aachen University, Germany, working on Hegel’s Philosophy of Biology (2006). His research fields include Philosophy of Biology (both History of the Life Sciences and Modern Philosophy of Biology) and German Idealism. Christian Spahn worked from 2006 to 2009 at the University of Jena, Germany, in an interdisciplinary research group ‘Interdisciplinary Anthropology,’ initiated by Wolfgang Welsch, that brought together philosophers, biologists, neuro-scientists, and cog­ nitive psychologists sponsored by the German Ministry of Education (BMBF). Among his publications are a book on Hegel’s Philosophy of Biology (Lebendiger Begriff – Begriffenes Leben, Zur Grundlegung der Philosophie des Organischen bei G. W. F. Hegel, Wu¨rzburg: Ko¨nigshausen & Neumann, 2006) and articles on sociobiology, the influence of Darwinism on modern views of culture, and anthropol­ ogy in an age of biology and Transcendental Philosophy. Since 2009 Christian Spahn has taught philosophy as an assistant professor at the Keimyung University in Daegu, Korea.

Death, Definition of A M Capron, University of Southern California, Los Angeles, CA, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Anoxia The absence of oxygen supply to the tissues. Apnea The absence of the impulse to breathe, which leads to an inability to breathe spontaneously. Brain death An imprecise but commonly used term that connotes (1) the cessation of all brain functions, (2) the cessation of higher brain functions, or (3) the determination that a person has died, based on items 1 or 2. Brain stem Also known as the ‘lower brain,’ the portion of the brain (made up of the midbrain, the pons, and the medulla oblongata) that links the brain and the spinal cord and that controls spontaneous, vegetative functions (such as breathing, swallowing, and the sleep– wake cycle) and also plays a role in mediating ‘higher brain’ functions such as consciousness. Common law The law generated by judges in deciding cases. Dead donor rule The requirement that organs be removed for transplantation only after the donor has been declared dead and that removal not be the cause of death. Electroencephalogram (EEG) An electroencephalogram measures electrical activity in the higher centers of the brain; a ‘flat EEG’ means that no electrical activity is detected. Extracorporeal membrane oxygenation (ECMO) A process, typically used in intensive care units for patients whose heart and lungs are not functioning adequately, whereby venous blood is continuously pumped through a machine that removes carbon dioxide and adds oxygen and then returns the oxygenated blood to the patient.

Introduction When does death occur? Medical advances over the past half-century have made this age-old question a matter of contemporary medical and legal importance. Whereas ancient fears of premature burial were quieted by nine­ teenth-century improvements in physicians’ diagnostic methods, recent developments have had the opposite effect, not because of any inaccuracy in clinical measure­ ments but because of doubts about their interpretation. Techniques used to maintain vital functions in critically ill and injured patients until they can function on their

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Higher brain The portions of the brain (principally, the cerebrum and its outer shell, the cortex) responsible for cognition, feeling, memory, and consciousness. PVS Originally termed the ‘persistent vegetative state,’ a noncognitive condition in which patients go through a sleep–wake cycle but are unaware, and they can breathe, chew, swallow, and even groan but show no signs of consciousness, perception, or other higher functions. Neurologists now differentiate a vegetative state from a permanent vegetative state, from which it can be reliably predicted that the patient will not recover. Spinal reflexes Those responses that originate in the spinal cord, such as knee and ankle jerks, and that may persist even after cessation of functions in the brain, including the brain stem. Uniform Determination of Death Act (UDDA) A model statute, the UDDA was proposed in 1981 for adoption by the states by the American Bar Association, American Medical Association, President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, and the National Conference of Commissioners on Uniform State Laws. Vital signs The traditional signs of life, particularly breathing and heartbeat, that are used in diagnosing death. Whole-brain death The death of a human being determined by the irreversible loss of functions in the entire brain, including the brain stem; in contrast to death declared based on only the loss of functions in the higher brain but not the brain stem.

own again produce the traditional ‘vital signs’ of heartbeat and respiration both in patients who will recover and in those whose brains have been severely and irreversibly damaged. Deciding which among the latter patients are dying and which are dead does not involve ‘defining death,’ in the sense of exploring the meaning of death (and life), but the narrower and more practical task of setting standards to determine when death has occurred in two circumstances: first, in patients who in the absence of artificially sustained circulation and respiration would lack vital signs, and second, in patients whose circulation and respiration have permanently ceased following

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withdrawal of a ventilator and other forms of life support. Both the circulatory–respiratory and the neurological standards have been established by clinicians and recog­ nized by the law for decades. Yet, though widely accepted, these standards – and the situations in which they apply – are not always well understood by the public. They also face philosophical and practical objections in academic circles.

The Origins and Content of the Modern Standards Artificial Support and Organ Transplantation A new category of patients

The need for a new basis for determining death arose in the 1960s along with the development of techniques to support breathing and heartbeat in very sick, hospitalized patients, particularly those who had suffered trauma to the head as well as some who had experienced a stroke or cardiac arrest. Such events can cause cerebral edema (an accumulation of fluid and swelling in the brain tissue), which in turn generates pressure that prevents blood from circulating to the brain. Brain cells can be damaged if deprived of oxygenated blood for even brief periods. Thus, edema and other pathophysiologic mechanisms can cause the brain to cease functioning even when the damage to other organs is less severe. Many techniques to prolong life – including drugs to maintain blood pressure and body temperature as well as devices to support breathing, blood flow, nutrition, and hydration artificially – have been developed as means for preserving functioning in very ill or badly injured patients until they recover. But often recovery cannot be achieved, as the famous Harvard Medical School Ad Hoc Committee on Brain Death noted in 1968: ‘‘Sometimes these efforts [to save the desperately injured] have only partial success so that the result is an individual whose heart continues to beat but whose brain is irreversibly damaged.’’ Some of these patients have only suffered harm to their higher brains; they will remain permanently unconscious but can eventually breathe without mechan­ ical support. Others, however, have suffered more extensive damage involving the centers in the brain, par­ ticularly the brain stem, that are responsible for breathing and bodily regulation. These patients do not respond to their environment and are profoundly unconscious. Indeed, an early study by French physicians Mollaret and Goulon described this phenomenon as le coma de´passe´ (beyond coma). Without artificial support, such as mechanical ventilation, these persons would be regarded as dead, yet with such support they continue to manifest the traditional vital signs of heartbeat and respiration.

Public attention catalyzed by heart transplantation

As it became apparent that some patients could be artifi­ cially supported virtually indefinitely, physicians began to wonder when they could cease treatment, a question to which the answers were then far less clear than they are today. Even then, one answer was clear, namely that when a patient has died, further treatment is neither required nor, indeed, appropriate. Had the problem of artificial ‘vital signs’ in bodies with total brain failure remained of concern largely to physicians in assessing artificially sup­ ported patients, a new, neurologically based diagnosis of death might have been slowly incorporated into the gen­ eral understanding of death. But the first human-to­ human heart transplant in South Africa in December 1967, followed by dozens of cases around the world in the ensuing months, catapulted the ‘definition of death’ into the public arena and linked the two topics in the public mind, even though the new ‘definition’ is used more frequently in ordinary cases of life support than in cases in which organs are removed to be transplanted. It is easy to see why the public was astonished when a beating human heart was plucked from a body that had been declared dead so that Dr. Christiaan Barnard could transplant it into another patient. How could the donor, whose heart was beating, be dead, while the recipient, whose own heart had been removed, was considered alive? While Dr. Barnard and other heart transplant teams pushed boldly ahead, physicians generally were con­ cerned that the brain-based criteria for diagnosing death did not follow the accepted legal standard, which at the time was the complete cessation of all vital functions, including breathing and heartbeat, without reference to whether such functions arose naturally or as the result of medical intervention. Two issues were thus presented. First, by what techniques could the absence of brain functioning be determined, and were they as reliable a method of determining death as the older techniques? Second, was it appropriate for physicians to proceed on the basis of a medical consensus about these techniques or did more formal steps need to be taken to bridge the gap between the medical and the general view of death, as embodied in the law and in popular understanding? Establishing Diagnostic Criteria for Death Varied criteria to measure a single phenomenon

The methods used to establish loss of brain function differ somewhat from country to country. In the United States, physicians utilize clinical signs and confirmatory labora­ tory tests, such as the EEG and tests for evoked responses, to measure the absence of any activity in the entire brain, while British neurologists measure the loss of functioning in the brain stem in patients with coma of known origin,

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and experts in other European countries focus on pre­ conditions for brain function, such as intracranial blood circulation. All of these methods, however, aim to estab­ lish the same condition, namely that the self-perpetuating pathophysiological process of destruction in the brain (including the brain stem) caused by edema secondary to trauma or anoxia has progressed so far that the patient will never again manifest spontaneous respiration and circulation. In effect, by measuring whether a person’s brain has reached this state, physicians create a new window through which to view the phenomenon of death when their own interventions obscure what could otherwise be seen through the window of cardiopulmon­ ary function. The reliability of observations made through the new window was carefully established through studies of comatose patients in whom cerebral unresponsivity and unreceptivity and the absence of brain stem reflexes were measured clinically, apnea occurred when the respirator was withdrawn, and tests established the absence of blood flow to the brain or a ‘flat’ EEG. Because the concern is with brain functions, the observation of spinal reflexes is not inconsistent with a diagnosis of death. The criteria developed to diagnose death stress the importance of knowing the origin of the coma (whether through injury, anoxia, or otherwise) both to rule out reversible causes of nonresponsivity (e.g., sedation, hypothermia, and neuromuscular blockade) and to deter­ mine how long the patient must be observed and subjected to which clinical or confirmatory tests. The standards promulgated by the Harvard committee in 1968 required repeat testing after 24 h, but as the diag­ nostic procedures have been further refined, different standards have been established for various categories of patients, for some of whom 6 h of observation suffices. The implications of the standards

While attention in discussions of determining death is usually focused on brain-based criteria, most determina­ tions of death continue to be based on the traditional heart–lung criteria. Like the brain-based criteria, the lat­ ter have two components, the full cessation of relevant functions and the irreversibility of the cessation. Both brain and respiratory–circulatory criteria are framed in terms of functions, not the organs that usually perform the functions; for example, a conscious person who requires mechanical assistance to breathe would not be regarded as dead even if his lungs were unable to operate, so long as his respiratory function could be sustained artificially. Certain forms of intensive medical care in effect substitute for brain functions as well, though no full replacement has been created for all functions of the entire brain. Nonetheless, care must be taken in the use of terms such as ‘brain death’ which suggest that the death occurs in a single organ, when what is really at issue

is the determination of death for an organism based on the irreversible cessation of functioning in a particular organ, such as the brain. Another implication is that what is important in all cases is the loss of the particular function, not the destruc­ tion of cells, much less the total absence of activity in some cells in the relevant organ. Indeed, were the stan­ dard for death set at destruction of the brain rather than loss of functions, no clinical tests now exist that could establish such destruction before cardiac arrest. Individual cells or groups of cells – even in neurologic tissue – may continue to function after death of the organism as a whole. A familiar example is that fingernails and hair continue to grow briefly after death. Some chal­ lenges to the brain-based ‘definitions’ of death are based on findings that certain biologic processes (such as the secretion of hormones) persist for a period in the brains of persons determined to be dead by currently accepted standards. The existence of cellular activity is not incon­ sistent with a diagnosis of death, however, provided that the vital function in question has ceased and cannot be replaced, and that the cellular activity itself is not a central function of an integrated organism. The bifurcated standard

The Uniform Determination of Death Act (UDDA) and comparable statutes elsewhere, including Australia, recog­ nize two standards for the occurrence of death, one based on cessation of brain functions and the other on cessation of blood flow and breathing. This ‘bifurcated’ standard is based on the notion that either means of determining death can be used in appropriate circumstances to measure the same phenomenon, namely death of the organism as an integrated whole. The duality of the standard sows the potential for confusion because it can be misunderstood to establish two kinds of death, ‘circulatory–respiratory death’ and ‘brain death.’ Yet this problem is probably inevitable because only a small percentage of patients are diagnosed as dead based on direct assessments of brain functions, so the two methods of determining death will continue to exist. Any confusion resulting therefrom would not be eliminated simply by rewording the statute, but needs to be specifically addressed. The Law Reform Commission in Canada proposed a different approach, under which the irreversible cessation of brain functions would be the sole ‘definition’ of death, but this standard could be met not only by showing directly that brain functions are absent, but also ‘‘by the prolonged absence of spontaneous cardiac and respiratory functions.’’ This approach has also been endorsed by a number of commentators, who see it as conceptually superior. Some, such as James Bernat, propose that the ‘definition’ actually be ‘‘the permanent cessation of the functioning of the organism as a whole,’’ while cessation of brain functions plays the role of the ‘criterion for death,’

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intermediate between the definition and the two distinct sets of tests (‘cardiorespiratory’ and ‘neurological’) by which death would actually be diagnosed. While these approaches are attractive in underlining that human death is a single phenomenon, their concep­ tual clarity is dependent on general understanding of the brain’s particularly important role in integrating function­ ing of the whole organism and of its great vulnerability to injury, particularly through loss of blood flow, so that uncorrected loss of breathing and heartbeat either shows loss of brain functions or foretells such loss. Yet, as a President’s Commission concluded in rejecting the Canadian approach, ‘‘most of the time people do not, and need not, go through this two-step process. Irreversible loss of circulation is recognized as death because – setting aside any mythical connotations of the heart – a person without blood flow simply cannot live’’ (1981: 74).

standards, but the result was that as late as 1968, an appellate court in California decided to adhere solely to the heartbeat-and-breathing standard, even though these functions were being artificially maintained in the person in question. Several cases in the United States in the early 1970s illustrate how problematic it was to rely on the judiciary as the primary means to make law on this topic. For example, following two heart transplants in 1974 in California, the persons charged with homicide for causing each donor’s death claimed the surgeons’ removal of the still-beating hearts rather than their own acts was the cause of death. One trial judge accepted this argument on the ground that it was compelled by the existing definition of death, but his ruling was reversed on appeal, and both defendants were eventually convicted. Statutory standards

Translating Medical Criteria into Legal Standards Although the establishment of criteria and tests to diag­ nose death is a matter of technical complexity best left to physicians and other scientists, the underlying objective is not to determine the biological status of cells or organ systems, but rather the social status of a human being as a living being or a dead body. Thus, by the 1970s, even as studies proved that the clinical measurement of absence of brain functions was as reliable as the traditional mea­ sures for cessation of heart and lung functions, a consensus emerged that it would not be appropriate to leave the matter of ‘redefining’ death to the medical community alone. Instead, society needed to respond formally by setting the framework within which physi­ cians would apply any particular criteria and tests. Judicial revision of the standards

Just as countries differ in the methodology employed by physicians in diagnosing death, they have also followed different paths in establishing legal standards. In some jurisdictions, the process was left to the courts. The exist­ ing common law standard of ‘absence of all vital functions, including breathing and heartbeat’ had been articulated by earlier judges in deciding cases in which the moment of death was important, such as in disputes over estates and the like. Beginning in the 1960s, courts were called upon to update that standard to reflect more accurately new scientific findings and medical procedures. The process by which this updating occurred was not always smooth, however. One impediment to action was judges’ lack of scientific understanding, but equally important was their attachment to existing, well-settled rules. Deference to precedent is usually desirable, both to simplify litigation and to provide predictable legal

While law revision was left to the courts in several com­ mon law jurisdictions, such as Great Britain and several states in the United States, most in the United States, Canada, and Australia turned to the legislature to estab­ lish the legal standards for determining death. The legislative process has several advantages: It allows a wider range of information to enter into the framing of standards for determining death; it offers an avenue for participation of the public; and it provides prospective guidance and dispels public and professional uncertainties about the law, thereby reducing the likelihood of cases against physicians for malpractice or homicide. In the United States, the best known statute, the UDDA, was proposed in 1981 by leading medical and legal groups and the Presidential Bioethics Commission. It is now law in most U.S. jurisdictions, while virtually all the rest have some other, essentially similar statute. The UDDA provides that an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

The UDDA thus represents an incremental rather than a radical restatement of the traditional understanding of death by tying together the accepted cardiopulmonary standard with a brain-based standard that measures the same phenomenon. Another feature of the statute is that it operates at the level of standards rather than that of medical criteria or clinical tests. The result is a law that is sufficiently precise to set forth the public understanding of what constitutes death but not so specific that it is tied to the details of contemporary technology. It sets forth the general

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standards by which death is to be determined but leaves the medical community to establish and apply appropri­ ate criteria and specific tests for determining that the standards have been met, recognizing that techniques may change in light of experience and further study. The standards set by the UDDA are unvarying in two senses: They apply to all situations in which human death needs to be determined, and they are the same for all persons. An accepted standard for determining death is needed to resolve a number of issues: appropriate medical care, the timing of organ removal, homicide, life insur­ ance benefits, probating a will and transferring property, taxes, and marital status, to name a few. In theory, varying policy objectives might dictate different standards in par­ ticular contexts, but just as the traditional heart–lung standard was employed across all situations, so too is the UDDA. Using a single definition for all purposes simply means that ‘death’ means the same thing in all contexts so that the same person is not ‘alive’ for life insurance purposes but ‘dead’ according to the criminal law. This does not preclude relying on other events besides death as a trigger for some decisions; for example, most jurisdictions pro­ vide that a person’s property is distributed to heirs and his or her marriage is terminated after an unexplained absence lasting a specified period of years, even though a person ‘presumed dead’ under such a law would not be treated as a corpse were he or she to turn up alive. Likewise, in order to increase the number of transplants, some people have argued that in certain circumstances surgeons should be able to remove organs before the donor has died. Such a statute would authorize acting before death rather than creating a separate meaning of death. The second aspect of uniformity is that the standards for determining death apply equally to all people, without reference to their social status or wealth, the circum­ stances in which they are hospitalized, or their potential social utility as an organ donor. Only one jurisdiction, New Jersey, has departed from this objective; under a statute adopted in 1991, people whose religious beliefs would be violated by the use of brain-based criteria are allowed to have their deaths declared solely on the tradi­ tional circulatory–respiratory basis.

Challenges to the Prevailing Standards By the middle of the 1980s, nearly all jurisdictions (the major exception being Japan) had legally recognized the medical consensus that death can be determined in most people by the traditional measures of heartbeat and breathing and in artificially supported patients by mea­ sures of total brain function. Still, challenges to the prevailing standards continue to be raised by some

philosophers and physicians, regarding both brain-based and circulatory–respiratory determinations of death. Whole-Brain versus Higher Brain Functions The difficulties in implementing a higher brain standard

The UDDA specifies that death occurs when ‘‘the entire brain, including the brain stem,’’ ceases functioning. Some patients, such as those in persistent vegetative state (PVS), who usually never regain consciousness even when vigorously supported, do not meet this wholebrain standard, even though they have lost all higher brain functions associated with consciousness and inter­ action. Many people would agree that certain features of consciousness (or at least the potential for consciousness) are essential to being a person as distinct from merely a human being. Should the law equate a loss of personhood with death? A related question rests on the ontological proposition that to be a particular individual means to have a personal identity, which depends on continuity of personal history as well as on self-awareness. If the loss of consciousness destroys such identity, does that mean the person has died, even if the body continues to live? Society has thus far answered both versions of the question – which is essentially whether the loss of higher brain functions should allow death to be declared – in the negative. Some of the reasons for doing so are clinical, since it is more difficult (some would say impossible) to diagnose the permanent loss of higher brain functions with the same degree of certainty as the loss of wholebrain or circulatory–respiratory functions, though advances in diagnostic methods may eventually overcome this problem. More basically, the very concept of what functions pertain to the higher brain is extremely con­ tested. For example, the specific characteristics deemed by philosophers to be essential for personhood have var­ ied widely from John Locke’s focus on self-awareness to Immanuel Kant’s requirement of a capacity for rational moral agency. Thus, one higher brain standard might encompass only those such as PVS patients who lack any capacity for self-knowledge, while another would include senile or severely retarded patients who cannot synthesize experience or act on moral principles. The difficulties in making accurate predictions that neocortical functions will not return following certain injuries pale in comparison to diagnosing that an irrever­ sible ‘loss of personhood’ or ‘loss of personal identity’ has occurred. Simply put, neurologists have no way of directly correlating concepts such as ‘loss of personhood’ with particular neurological structures whose condition could be measured. Assuming that ‘‘death can be applied directly only to biological organisms and not to persons’’ (Culver and Gert, 1982: 183), absence of consciousness and cognition

Death, Definition of 719

could still be relevant in deciding, for example, whether – and if so, for how long – patients who lose (or never achieve) personhood or who have lost their personal identity should continue to receive life-prolonging treat­ ment. Yet ‘When to allow to die?’ is a very distinct question, from an ethical as well as a policy viewpoint, from ‘When to declare dead?’ Over the past five decades, detailed analysis and guidance has been developed by courts and legislatures as well as by professional bodies concerning the cessation of treatment in patients who are alive by brain or heart–lung criteria, but for whom further treatment is considered (by the patients or by others) to be pointless or degrading, especially when patients are not expected to regain consciousness. Furthermore, any move to treat some or all persons who lack consciousness and other higher brain functions as dead because they lack ‘personhood’ or ‘personal iden­ tity’ would lead either to burying spontaneously respiring bodies or to having first to take affirmative steps, such as those used in active euthanasia, to end their breathing, circulation, and the like. The statute proposed in 1976 by philosopher Robert Veatch, which equates death with cessation of cerebral function, recognized that this would be unacceptable to most persons. Therefore, he included a ‘conscience clause’ that allowed people, while still competent, or their next of kin to decline to have death determined on the higher brain standard. No jur­ isdiction has adopted a higher brain standard, nor does the ‘conscience clause’ in the New Jersey statute encompass that standard.

also caused deterioration in other organs that rendered them useless for transplantation. In several other instances, women who expected to give birth to a baby with anencephaly publicly sought authorization to allow removal of organs immediately after birth, so that their child’s death could at least give another sick child the chance to live with a transplanted organ. But in the only case to produce an appellate deci­ sion, the Florida Supreme Court in 1992 declined to create a special standard of death for anencephalic infants. In deciding not to expand the standards for death to include anencephalic infants, nor to amend the organ transplant acts to allow premortem harvesting from these infants, judges and legislators were clearly aware of two slippery slopes. First, as the pediatricians caring for the potential Loma Linda donors found, parents and physicians of other infants with severe anomalies feared that these children would be regarded as comparable to the anencephalic infants as organ donors because of their limited life expectancy. Second, the change in the stan­ dard for determining death could not be limited to infants, since the salient criteria – absence of higher brain func­ tion and limited life expectancy – apply to many other persons (such as patients with severe brain injuries or advanced Alzheimer’s disease) as well. The decision to accept anencephaly as a basis for declaring death would thus imply acceptance of a higher brain standard for diagnosing death in any and all patients, with the resultant problems of labeling a spontaneously respiring body ‘dead.’

Attempts to classify anencephalic infants as dead

The closest policy makers have come to allowing death to be determined on higher brain grounds arose in the con­ text of several highly publicized attempts to transplant organs from anencephalic infants. These babies are born without a neocortex and with the tops of their skulls open, exposing the underlying tissue. When, as is often the case, their brain stems function, they can breathe on their own and may even show basic reflexes, such as sucking. While they can survive for long periods with vigorous support, in most cases they are provided only comfort care and expire within 2 weeks. In 1987 and 1988, Loma Linda Medical Center in California tried to obtain more organs, particularly hearts, from this source for transplantation into newborn patients. The physicians placed anencephalic infants on respirators and waited until death could be diagnosed neurologically (a procedure that was controversial in itself because the reliability of such determinations in very young infants is questioned). In the end, no organs were transplanted because either the infants did not expire within the 2-week period specified in the protocol or, if the respira­ tor were delayed, the intermittent episodes of anoxia that damaged their brain stems (and permitted death to occur)

Clinical Criteria and the Concept of Death Some commentators have suggested that society should rethink brain death because some bodies determined to be dead on neurological grounds exhibit functions – such as hypothalamic–endocrine function and cerebral electrical activity – that indicate that not all functions of the entire brain are absent. Some of these findings may suggest that the tests for brain death need to be expanded to encom­ pass additional factors if the presence of these factors indicates that the organism has not ceased functioning as a whole. But since some organic activities persist in all dead mammals, the real question is whether any particu­ lar finding – such as the secretion of a hormone – demonstrates the persistence of a function that is as phy­ siologically significant as the others whose absence is part of accepted brain-based diagnostic criteria. Certainly, if these functions continue in persons who are declared dead under cardiopulmonary standards, then their pre­ sence does not show that the clinical criteria for the brainbased standards are inaccurate or incomplete, and neither a ‘redefinition’ of the standards nor a change in criteria would be needed.

720 Death, Definition of

Critics further argue argue that the persistence (even for a brief time and certainly in the rare longer term cases) of the ability of ‘brain dead’ bodies to control their tem­ perature, excrete waste, heal wounds, fight infections, and – most dramatically – gestate fetuses contradicts the rationale offered 30 years ago by the President’s Commission and others that cessation of brain functions entails a loss of somatic integration of the body as a whole. In response, the President’s Council on Bioethics has argued that the existence of particular functions, even those that suggest some level of bodily integration, is not inconsistent with a diagnosis of death, if death is understood to mean that a organism is no longer operat­ ing as a whole because it is unable to carry on its essential ‘work,’ which depends on three fundamental capacities: ‘openness to the world’ (receptivity to stimuli), ‘the ability to act upon the world to obtain selectively what it needs,’ and the ‘basic felt need that drives the organism to act as it must’ (President’s Council on Bioethics, 2008: 61). Without going further, it is sufficient to note that a body which has suffered total brain failure is neither receptive nor able to act; indeed, as demonstrated by the apnea tests that are a standard part of determining death on neuro­ logical grounds, such bodies do not spontaneously exercise the muscles necessary to obtain the oxygen that is essential to their survival. Irreversible or Permanent Loss of Functions? The UDDA and comparable rules set forth diagnostic rather than prognostic standards: that death has occurred, not that it is likely to occur. Thus the requirement that relevant functions have permanently ceased is an essential component of both standards for determining death. In the case of circulation and respiration, artificial support can sometimes stimulate a resumption of functioning that seem to have ceased, so a judgment of irreversibility depends on an effort at reversal having failed or having been judged futile. Yet under protocols for ‘donation after circulatory determination of death’ (DCDD) that are now in use at many hospitals where organs are recovered for transplan­ tation, patients are declared dead according to the circulatory–respiratory standard when medical interven­ tions might restore these functions. In ‘controlled DCDD,’ mechanically ventilated patients who desire to be organ donors are taken to an operating room where life support is disconnected, cardiac arrest occurs, and after 2–5 min of asystole (lack of heartbeat), death is declared since no cases of autoresuscitation have been documented after 65 s of asystole. Although this procedure has been endorsed by leading authorities such as the Institute of Medicine, critics claim that if no attempt has been made to restore breathing, death cannot be declared since the loss of functions has not been shown to be ‘irreversible.’

Yet, in proposing the UDDA, the President’s Commission clearly regarded the end point as permanence and used irreversibility only to account for cases in which medical efforts were made to attempt to reverse the loss of func­ tions, which is not the case when DCDD has been elected by the patient or family. Although some critics, such as Robert Truog and Franklin Miller, argue that absent proof of irreversible loss of circulatory and respiratory functions patients are not dead and hence removal of their organs would violate the dead donor rule, this argument fails on two grounds. First, the objection contradicts not only the circumstances of many patients’ dying (when the patients or their nextof-kin have instructed physicians not to attempt resusci­ tation) but also the unchallenged medical practice of declaring death, especially outside hospitals, based solely on the cessation of heartbeat and breathing, with no attempt either to determine whether these functions could be (temporarily) restarted or to ascertain directly the presence or absence of brain activity. Second, remov­ ing donor organs does not affect the process of progressive hypoxic–ischemic brain destruction that eventuates in irreversibility. ‘‘Once circulation has ceased permanently, the same brain destruction occurs whether the organs remain present or have been removed’’ (Bernat et al., 2010: 963). (Truog and Miller favor abandoning the dead donor rule and allowing organs to be transplanted from anesthetized patients who have consented to being organ donors.) To improve functional capacity of organs removed under DCDD protocols, some centers use ECMO to per­ fuse and oxygenate organs after they have been removed from the body. Others introduce in vivo ECMO support immediately after death through arterial and venous cathe­ ters inserted previously. Yet the restoration of circulation brings oxygenated blood not only to the organs that will be removed for transplantation (thereby reducing warm ischemic time and improving organ quality) but also to the brain. Since a functioning brain is capable of engender­ ing spontaneous respiration, the use of ECMO retroactively negates the physiologic justification for declaring a donor dead; moreover, if consciousness is revived, the risk is created that a donor will suffer pain. To avoid this problem, a few transplant centers have used a modified ECMO technique in which a balloon is inflated in the distal thoracic aorta at the level of the diaphragm or the carotid artery is ligated bilaterally so that only certain organs, rather than the whole body, are perfused. Yet these modified techniques are very invasive, impose on the donor prior to death, and alter the dying process. Public Concern and Confusion Even after 30 years of public awareness that the irrever­ sible cessation of brain functions is one means of

Death, Definition of 721

determining death, substantial confusion persists on the whole subject. Some of the confusion probably has its origins in the linkage of the definition of death to organ (particularly heart) transplantation, especially when it appears – as in the protocols described previously – that physicians may be altering the standards in order to increase the number of eligible donors. While such efforts may have laudable goals, they also undermine confidence in both the certainty and the uniformity of the standards for determining death. Ironically, as Sanner has reported, uncertainty about death determination decreases the number of people willing to consent to organ donation. Although virtually all reported cases of misdiagnoses of death involve determinations based on misreading circulatory and respiratory signs in patients who were not on ventilators, public anxiety focuses on brain death. Part of the confusion can be traced to the very termino­ logy, which wrongly suggests the existence of a special, separate category of death – or worse, that brain death is almost but not quite death. It is not unusual for newspaper accounts to describe a ‘brain-dead’ patient being discon­ nected from ‘life support,’ after which she expired. Unfortunately, the difficulty in speaking of ‘death diagnosed on neurological grounds’ or of ‘a brain-based determination of death’ probably means that the term ‘brain death’ will not disappear. Also unfortunately, this term is sometimes used even more loosely to describe a patient who has been unconscious for a long time, though breathing spontaneously; for friends and family members, such comatose patients seem ‘brain dead.’ The popular use of the term has now even expanded to include anyone (particularly celebrities) who commits some particularly dimwitted act. But the problems with the present definition of death go beyond its colloquial misuse. It has been shown that even medical and nursing personnel have difficulty in applying the concept of death to artificially maintained bodies that manifest many of the traditional – and readily perceived – signs of life: a moving chest, pulsing blood vessels, and warm, moist skin. Closer examination by the trained eye reveals the difference between such bodies and living beings (closed eyes or a fixed gaze, the lack of cortical reflexes when the eye or ear is stimulated, and so forth), but that may not always, or not immediately, over­ come the sense that death has not occurred. Clearly, continuing efforts are needed to educate peo­ ple (including healthcare workers) that death is a single phenomenon that can be measured at least as accurately by determining that brain functions have permanently ceased in patients who are artificially maintained as by examining for absence of heartbeat and respiration in other persons. Meanwhile, no jurisdiction that has accepted brain-based determinations of death (as virtually all Western countries have done, either through law or through accepted medical practice) has seen fit to

abandon this standard either to return to the circula­ tory–respiratory standard alone or to incorporate a standard based solely on higher brain functions. See also: Advance Directives; Death, Social Attitudes Toward; Do-Not-Resuscitate Decisions; Euthanasia (Physician-Assisted Suicide); Organ Donation and Transplantation; Patients’ Rights.

Further Reading Bernat J (1992) How much of the brain must die in brain death? Journal of Clinical Ethics 3: 21–26. Bernat JL, Capron AM, Bleck TP, et al. (2010) The circulatory–respiratory determination of death in organ donation. Critical Care Medicine 38: 963–970. Capron A and Cate F (2009) Death and organ transplantation. In: Macdonald M, Kaufman R, Capron A, and Birnbaum I (eds.), Treatise on Health Care Law, pp. 45–60. New York: Bender. Culver C and Gert B (1982) Philosophy in Medicine. New York: Oxford University Press. Harvard Medical School Ad Hoc Committee on Brain Death (1968) A definition of irreversible coma. Journal of the American Medical Association 205: 337–340. Miller FG and Truog RD (2008) Rethinking the ethics of vital organ donations. Hastings Center Report 38(6): 38–46. Mollaret P and Goulon M (1959) Le coma de´passe´. Reviews Neurology (Paris) 101: 3–5. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1981) Defining Death: Medical, Legal and Ethical Issues in the Determination of Death. Washington, DC: U.S. Government Printing Office. President’s Council on Bioethics (2008) Controversies in the Determination of Death: A White Paper of the President’s Council on Bioethics. Washington, DC: President’s Council on Bioethics. Sanner M (1994) A comparison of public attitudes toward autopsy, organ donation, and anatomic dissection: A Swedish survey. Journal of the American Medical Association 271: 284–288. Shewmon DA (2001) The brain and somatic integration: Insights into the standard biological rationale for equating ‘brain death’ with death. Journal of Medicine and Philosophy 26: 457–478. Truog RD and Miller FG (2008) The dead donor rule and organ transplantation. New England Journal of Medicine 359: 674–675. Veatch R (1976) Death, Dying and the Biological Revolution: Our Last Quest for Responsibility. New Haven, CT: Yale University Press. Youngner S and Arnold R (1993) Ethical, psychological, and public policy implications of procuring organs from non-heart-beating cadaver donors. Journal of the American Medical Association 269: 2769–2774. Youngner S, Landefeld C, Coulton C, Juknialis B, and Leary M (1989) ‘Brain death’ and organ retrieval: A cross-sectional survey of knowledge and concepts among health professionals. Journal of the American Medical Association 261: 2205–2210. Zaner R (ed.) (1988) Death: Beyond Whole-Brain Criteria. Dordrecht: Kluwer.

Biographical Sketch Alexander Morgan Capron holds the rank of University Professor at the University of Southern California, where he teaches public health law, torts, and bioethics. He occupies the Scott H. Bice Chair in Healthcare Law, Policy and Ethics at the Gould School of Law, is a Professor of Law and Medicine at the Keck School of Medicine, and is Co-Director of the Pacific Center for Health

722 Death, Definition of Policy and Ethics. He is author or editor of 10 books and more than 300 articles and chapters. An honors graduate of Swarthmore College and Yale Law School, he previously taught at Georgetown, Pennsylvania, and Yale universities. He served as the first Director of Ethics, Trade, Human Rights and Health Law at the World Health Organization in Geneva (2002–06) and as Executive Director of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral

Research (1979–83). He has been President of the International Association of Bioethics and of the American Society of Law, Medicine and Ethics, and he is a Member of the Institute of Medicine (National Academy of Sciences), a Member of the American Law Institute, a Fellow of the American Association for the Advancement of Science, a Founding Fellow of the Hasting Center, and an Honorary Fellow of the American College of Legal Medicine.

Death, Medical Aspects of D Lamb, (Formerly) University of Birmingham, Birmingham, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Higher brain formulations Concepts of death based on loss of function in the cerebral hemispheres while lower brain activity involving spontaneous respiration and heartbeat persists. Pluralistic definitions of death These give expression to the idea that autonomous patients should be allowed to exercise choice

Introduction The medical aspects of death are inescapably bound up with philosophical, metaphysical, and ethical issues. Unless these issues are addressed, attempts to empirically verify death or provide guidelines for the diagnosis of death will be meaningless. Technical data alone cannot provide answers to what are essentially metaphysical and moral questions. Criteria for death and arguments about more reliable tests for death must be related to some overall concept of what death means because at stake here are our notions of personhood, humanity, life, and the bound­ ary between duties appropriate to a living being and duties appropriate to a corpse. Clearly, these questions raise issues that are frequently determined by clinical facts, but they nevertheless transcend them because they involve a whole background of moral, political, and legal considerations that ultimately refer to what is meant by death.

Philosophical Requirements for a Definition of Death An acceptable medical definition should be compatible with mainstream cultural and religious beliefs about life and death. Beliefs that brain death is at variance with cultural beliefs and traditions are said to underpin reluc­ tance to accept brain-related concepts throughout the 1990s. Several requirements for a definition of death specify essential moral and cultural aspects. A Definition Must Refer to a Recognizable and Irreversible Physical Transformation Any valid medical concept of death must be linked to an irreversible physical change in the status of the individual that can be clearly and unambiguously determined by

regarding which concept of death should be applied to them. Principle of separation Laws and practices whereby the management of the dying organ donor should not be influenced by the interests of the potential recipient. Selectivity Diagnosis of brain death is selective: Not every function in the body or every neuron in the brain can be tested.

empirical means. It must follow that if a patient declared dead were to recover, it should not be said that he or she was dead but is now alive again but, rather, that he or she was alive all the time but mistakenly diagnosed as dead. The appeal to ‘irreversibility’ is only superficially at odds with accounts of miracles and divine intervention. Religious beliefs concerning immortality are unaffected by concepts and criteria that determine the cessation of this life, and the possibility of spending eternity in heaven or hell is not a repudiation of medical knowledge. A Definition of Death Must Be Selective From a biological view, death can be regarded as a process, beginning when one or more vital organs cease functioning and ending when the whole organism has decayed, when every single cell in the body is undergoing putrefaction. In practice, morality and law require that death is defined as an event, which indicates the moment to initiate appro­ priate behavior toward the deceased. Definitions of death have been selective: They have referred to the loss of functions and not to the destruction of structures. Vital functions are often irreversibly lost before the cells dissolve into decay. In practice, and throughout history, doctors have not sought to diagnose the death of the whole organ­ ism. They have sought to identify a stage in the ongoing course of events when the individual organism no longer functions as an integrated whole. It has long been recog­ nized that residual functions may persist after death, that muscles may respond to percussion for several hours, and that tissues such as skin, bone, or arterial wall may remain viable for transplantation purposes for 1 day or more. Newly developing techniques involving the management of corpses are being established that can maintain the viability of certain organs postmortem for almost indefinite periods. In this important respect, brain-related criteria for death do not mark a departure from the traditional

723

724 Death, Medical Aspects of

cardiocentric approach. Random electrical activity may persist after death; spinal reflexes may persist beyond the death of a brain and in fact do so when no cardiac activity can any longer be demonstrated. It is essential that a sharp distinction is maintained between death (irreversible loss of function) of the whole organ (total destruction of every cell) and death of the organism as a whole. The former has never oper­ ated in practice. Failure to appreciate this distinction largely explains public unease with brain-related criteria for death in Germany during the 1990s and the moral panic unleashed in the British media when it was announced that brain dead preparations were being anaesthetized to overcome residual spinal reflexes prior to organ removal. A Definition Must Be Universal and Holistic The requirement for universality implies that criteria must be unambiguous and the results of tests repeatable, and that the mechanism of death be the same for all people whether in the backwoods or in the most sophis­ ticated intensive care unit of a university hospital. When cultural beliefs and values are considered, it is clear that significance is attached to both mental and physical attributes of the dying person. A definition of death that disregards continuous mental functioning is morally unacceptable. The same might be said for a con­ cept of death that disregards essential physical functions such as spontaneous respiration, although some proposed formulations of the definition of death by Gervaise and by Puccetti questioned the significance of this function. A holistic definition, in keeping with most theological and secular beliefs, should be nonreductionist and include both mental and physical functions, recognizing that among the important features of life are integration and organization. Thus, death is not strictly equated with the loss of the vital functions of one or more organs but, rather, with the loss of the capacity to organize and integrate vital functions. The claim that elimination of certain functions – for example, those of the skin, liver, heart, and kidneys – may lead to death is not the same as saying that the loss of these functions is death. An indivi­ dual undergoing dialysis is not dead, although she may well die if she forgoes dialysis. However, she will then die – directly or indirectly – of the cerebral consequences of renal failure. The functioning of the organism as a whole will have been irreversibly compromised.

The Concept, Criteria, and Tests for Death A concept of death should be specific to its context. In a medical context, an appropriate concept must refer to basic biological functions. The preference for a medically

grounded concept of death is bound up with its univers­ ality. Poets and moralists employ numerous concepts of death that derive their meaning from the various issues they address. The expression ‘cowards die a thousand deaths’ makes a significant moral point about the psychol­ ogy of fear, but in an intensive care unit there should only be one death that applies to all humankind. Yet even in the medical context, the borderline between life and death is not a matter to be determined exclusively by medical science. A concept of death is primarily a philosophical matter, as is the decision that it is to rest on purely empirical considerations. Although pitched at a certain level of abstraction, a concept of death must indicate its scope, exclude esoteric considerations, retain a sense of universality, and stress the practical relationship between the concept of death and certain functions of the body. The criteria of death refer to specific functions that must be totally and irreversibly lost. The tests for death involve the examination procedures used to ascertain that the criteria have been met. Both criteria and tests must be unambiguous, depending on accepted medical and biolo­ gical facts. The tests should be straightforward, reliable, and repeatable: They should mutually support one another and produce a clear yes/no answer. Criteria and tests for death – and arguments about better criteria and tests – are meaningless unless related to some overall concept of what death means. Table 1 indicates the relationship between concept, criteria, and tests in a num­ ber of contexts. Exogamy The concept of exogamy may be of interest to anthro­ pologists and sociologists, but the criterion does not yield tests with any medical meaning. Missing, Presumed Dead Concepts of death based on the absence of the person concerned have important legal status, and if other evidence is suggestive that the person is dead, this may have consequences in the context of inheritance claims or even charges of homicide. Separation of Soul from the Body The idea of the separation of the soul from the body is manifest in many religions, but because the soul does not have any anatomical location, there are no medical cri­ teria or tests. In practice, many religions operate with a distinction between real and apparent death, according to which real death involves separation of the soul from the body, whereas scientifically determined criteria are accepted for apparent death.

Death, Medical Aspects of 725 Table 1 Definition, criteria, and tests for death Definition

Criteria

Tests

Exogamy Missing, presumed dead

Marriage outside the clan or caste Missing in wartime

Separation of soul from body Irreversible loss of the capacity to maintain circulation Irreversible loss of personhood

No criteria Irreversible cardiac standstill

Production of a marriage certificate No evidence of existence over a specified period of time No tests No recordable pulse or blood pressure, asystole on ECG No evidence of awareness, isoelectric EEG, PET scan abnormalities Microscopic evidence of destruction of every cell in the body Clinical signs of a nonfunctioning brain in the context of specified preconditions and exclusions

Irreversible loss of the function of the whole organism Irreversible loss of integrated functioning of the organism as a whole

Loss of higher brain function and mental function Irreversible metabolic arrest of every cell in the body Irreversible loss of brain function (irreversible apnea with loss of the capacity for consciousness)

ECG, electrocardiogram; EEG, electroencephalogram; PET, positron emission tomography.

The Irreversible Loss of Function of the Whole Organism (i.e., Every Cell in the Body) This concept should not be seriously proposed in any medical context. Although it meets the requirement for irreversibility, it does not meet the requirement for selec­ tivity. It implies that the function of each individual cell is as important as that of any other cell or of all cells functioning together, reducing the characteristics of life to those of chemical metabolism. Although chemical metabolism is clearly necessary to produce the energy that sustains life, there is clearly more to life than a series of chemical equations. Critics of brain-related criteria for death who appeal to residual cellular function implicitly support this concept of death, although they may not be aware that they do so.

The Irreversible Loss of the Capacity to Maintain Circulation Failure to maintain circulation is not, strictly speaking, a concept of death. Whether they realize it or not, proponents of cardiocentric concepts of death are in fact arguing that irreversible cardiac standstill is part of the criteria for brain death. Loss of cardiac function is a necessary but not sufficient indicator of death because an individual’s heart may irreversibly cease, only to be replaced by an artifact or transplant. This concept fails to meet the criterion of irreversibility; it also fails to capture the important features of life, such as integration and organization. Also, the requirement for selectivity is not met because the definition does not indicate why circulation is more important than any other function. A definition of death should capture some of the distinctive features of life; it is not suffi­ cient simply to record the loss of certain physical functions.

Irreversible Loss of Personhood This formulation of death is sometimes described as an ‘ontological definition.’ For personal identity theorists, the loss of mental functions, capacity for speech, observation, abstract thought, and meaningful interaction with other beings and the environment are deemed to be necessary and sufficient indicators of death. Residual functions, such as spontaneous respiration, are not considered to be signifi­ cant features of life. Criteria for loss of personhood are often bound up with loss of higher brain functions, such as those of the cerebral cortex. According to this formulation, patients in persistent vegetative states and anencephalic infants could be diagnosed as dead. Personal identity the­ ories of death continue to find popularity with bioethicists, but so far no medical authority in the world has adopted them for diagnosing death. However, Green and Wikler made a strong case for regarding loss of personhood as a condition in which a being should be allowed to die, and for several medical authorities loss of personal identity is implicit in guidelines for withholding life-sustaining ther­ apy from severely neurologically impaired patients. Critics of personal identity theories of death argue that the criter­ ion is indeterminate, it could blur the distinction between criteria for death and decisions to authorize euthanasia; that it conflicts with the holistic view of humankind that requires the absence of both mental and integrated physical functions; and that the requirement for irreversibility can­ not be guaranteed. There are reports, mainly anecdotal, of reversals of persistent vegetative states. The general view is that reversals decrease as the state persists and that there is little likelihood of a reversal after 1 year.

Irreversible Loss of Function of the Organism as a Whole This definition overcomes the shortcomings of previous definitions. Its starting point is the view that a living being

726 Death, Medical Aspects of

is an integrated whole, and that death is the loss of that which is required to enable continuous function as an independent biological unit capable of responding to both its external and its internal environment. This requires loss of both mental and physical features of inte­ grated life, including the loss of respiration – and hence loss of heartbeat – and irreversible loss of the capacity for consciousness. This definition is selective in that it focuses on coordination between different functions rather than the totality of function. Life as an integrated whole is not measured by the ability of certain organs to continue to function in a ventilated corpse, mechanically animated in a laboratory detached from a body, or after transplantation in someone else’s body. Hearts, lungs, kidneys, and livers can all be replaced and the wholeness of an individual be retained. Certain limbs and nonvital organs can be excised and the wholeness of an individual be retained. However, the brain, the critical system that coordinates and inte­ grates organic function, is irreplaceable. A definition of death in terms of the ‘irreversible loss of integrated func­ tion of the organism as a whole’ yields empirical criteria based on the function of the brain as a whole. The brain governs mental functions, such as consciousness, intellec­ tual activity, and memory. From the brain, autonomous physical functions, such as respiration, blood pressure control, and thermostat, are regulated. So are the vital functions performed by the heart and lungs. When the brain is dead, the integration of mental and physical func­ tions is terminated. Although respiration and circulation may be artificially maintained for a period of time and spontaneous heartbeat may survive brain death for a few minutes, and some cells may metabolize for several days, these are isolated functions without cohesion. The empirical criterion for this concept of death is the irreversible cessation of brain function as an integrated whole. This refers to the cessation of brain function and not to the dissolution of the brain’s biological structures. It means that the death of the brain occurs before total necrosis. It should be stressed, however, that the defini­ tion is aimed at the death of the individual as a whole, not the death of a particular organ. In this respect, the expres­ sions ‘brain death’ and ‘brain stem death’ – suggestive of the death of a specific organ – have generated confusion, implying a special kind of death. This confusion has been compounded with reference to other anatomically speci­ fic ‘deaths,’ such as ‘neocortical death’ and ‘cerebral death.’ Properly understood, criteria for the death of the brain are met only when the individual can no longer function as an integrated whole. From Brain Death to Brain Stem Death Since the 1970s, the medical profession has gradually accepted the proposition that the death of the brain yields both necessary and sufficient criteria for death of the

organism as a whole. During the 1980s and 1990s, there was a parallel development: the gradual realization that death of the brain stem is a necessary and sufficient condition for the death of the brain as a whole – that brain stem death is synonymous with death of the organ­ ism as a whole. The brain is the critical system of the living organism; the brain stem is the critical system of the brain. As asserted by Plum and Posner, ‘‘Death of the brain occurs when the organ irreversibly loses its capacity to maintain the vital integrative functions regulated by the vegetative and consciousness-mediating centers of the brain stem’’ (Plum and Posner, 1982: 17). Brain stem death signifies the death of the brain as a whole, not the death of the whole brain. It can be described as the physiological core of brain death. From this standpoint, residual cellular activity following irreversible cessation of brain stem function does not indicate the persistence of life.

Roots of Confusion When physicians communicate with the media, the capa­ city for misunderstanding is emphasized. Expressions such as ‘‘She is brain dead, but we have just performed successful cardiopulmonary resuscitation,’’ ‘‘The brain dead patient has been put on a course of antibiotics,’’ or ‘‘The brain dead patient is being fed artificially’’ are suggestive that a patient (as opposed to the parts of a corpse) is being cared for. Remarks to the effect that a patient is brain dead and being maintained on a ‘life support machine’ that one ‘chooses’ to ‘turn off’ are prob­ ably the most common source of confusion. Further confusion is manifest when the brain dead are referred to as ‘living cadavers’ because of the extension of artificial nutrition and mechanical support. Some medical personnel and many next of kin do not see the brain dead as unequivocally in the category of the dead. This cannot be denied, and it must be acknowl­ edged that medical technology is often out of step with public perceptions of death. Perhaps there is scope for philosophical reflection on a distinction between ‘being dead’ and ‘being lifeless.’ To some, the brain dead are dead but not lifeless. People still associate death with a lifeless, cold body and not with a warm, perspiring, brain dead preparation. Even the fact that the brain dead are maintained in intensive care units is suggestive of con­ tinuous life that is being ‘cared for.’ However, confusion between the living and the dead in such cases must be met with clarity. A significant source of confusion, and hence public concern, regarding the concept of brain death can be traced to early attempts to reconcile brain death with the traditional cardiorespiratory concept. During the 1970s and 1980s, there were attempts to legitimize brain death on the grounds that a diagnosis of the irreversible

Death, Medical Aspects of 727

loss of integrated brain function meant cardiac arrest was inevitable. However, this merely describes a sequence of events and cannot be construed as an argument support­ ing the claim that brain death is death. It gave the impression that brain death was merely a prognosis that death (portrayed as irreversible loss of cardiac function) was imminent. Irreversibly dying is not actual death. This line of thought led to arguments concerning the length of time irreversible cardiac arrest could be artificially delayed after a diagnosis of brain death, as if the extent of the delay somehow inflicted damage on the credibility of brain-related criteria for death. During the 1970s, the normal maximum delay between the diagnosis of brain death and cardiac arrest in a venti­ lated cadaver was believed to be a few hours or at most a few days. However, techniques for the management of brain dead cadavers improved, and when a middle-aged man was reported to have been resuscitated for 68 days after brain death was diagnosed, it generated criticism of the accuracy of brain death. Other similar reports fol­ lowed. The source of skepticism generated by these reports lay in the fact that many arguments in support of brain-related criteria for death appealed to the inevit­ ability of almost immediate cessation of cardiac activity despite attempts at aggressive management of the brain dead. The reason for this appeal lay in the deep-rooted desire to demonstrate that brain death is equivalent to traditional cardiorespiratory definitions of death. In fact, the entire discussion of the time lag between brain death and irreversible cardiac arrest was a nonissue: What had to be realized is that the accuracy of the diagnosis of brain death is independent of predictions concerning the survi­ val of artificially supported cardiorespiratory activity. This point was made by Pallis, who insisted that the concept of brain stem death should be addressed with regard to its own philosophical merits. As Pallis noted, with new drugs the ‘‘heart of the brain dead can be kept going much longer than was originally thought’’ and with the artificial heart on the horizon it will soon no longer be possible to argue that brain stem death is death ‘because of its hopeless cardiac prognosis.’ The real philosophical issue will then have to be confronted, namely that brain stem death is death in its own right (death being defined as the ‘irreversible loss of the capacity for consciousness combined with the irreversi­ ble loss of the capacity to breathe spontaneously, and hence maintain a spontaneous heartbeat’). (Pallis, 1990: 12–13)

Pallis insisted that brain stem death was death in its own right and that arguments about its accuracy are indepen­ dent of any predictions regarding cardiorespiratory function. The maintenance of organs within a body following brain death is dependent on the level of

technology available. There never was any need to sup­ port brain-related criteria with appeals to the inevitable cessation of cardiac activity.

The Case for a Plurality of Death Concepts The idea that autonomous patients should be allowed to exercise choice regarding which concept of death should be applied to them has certain appeal. This appeal, how­ ever, is closer to arguments about euthanasia regarding the making of autonomous choices concerning how one should die, not whether or not one is dead. Robert Veatch is a foremost critic of the standard concept of brain death. He has argued for ‘higher brain’ formulation of death and maintains that a free choice of standards would enable patients to opt for such a formulation. His case for plur­ ality deserves serious attention because it is likely to emerge as a response to skepticism over the determina­ tion of death. According to Veatch, ‘‘The choice among the many candidates . . . is a philosophical or moral ques­ tion, not a medical or scientific one’’ (Veatch, 2000: 46). This, however, is not disputed by defenders of the stan­ dard or brain stem concept of death who maintain that on philosophical and moral grounds, medical concepts – primarily because of their criteria for irreversibility – are superior. Veatch correctly identifies the central issue (which few physicians would deny) as that of determining a point in the dying process at which behavior that is morally appropriate toward the living gives way to behavior that is morally appropriate toward the dead. The issue at stake is not merely the avoidance of a premature diagnosis of death; it is, says Veatch, ‘‘an immoral assault on human dignity to treat a corpse as though it were living’’ (Veatch, 2000: 89). This problem has been addressed in one form or another by every culture in human history. Veatch is critical of the formulation of death expressed in the U.S.’s Universal Declaration of Death Act, and criticizes the impracticality of testing every neuron, because the act requires cessation of function in the entire brain. In the United Kingdom, attention was drawn to this problem when a distinction was made between diagnosing death of the whole brain (which is impractical) and diag­ nosing death of the brain as a whole, which is implicit in the UK’s guidelines for brain stem death. It is significant that Veatch does not refer to the UK’s guidelines, which reiterate a long acknowledged fact: that any valid concept of death will be selective. Higher brain formulations meet criteria for selectivity, but they include patients in persis­ tent vegetative states, who retain medically and culturally significant functions such as spontaneous respiration and heartbeat.

728 Death, Medical Aspects of

Although several defenders of higher brain formula­ tions appeal to personal identity criteria for death, Veatch wisely dissents. Linkage with brain death and alleged loss of personal identity is notoriously contestable, and there are many human beings and other animals who fail to satisfy criteria for personal identity of one form or another who are unmistakably alive. At best, appeals to personal identity serve as (contestable) criteria for moral standing (as in the case of embryos, fetuses, and nonhuman ani­ mals) or as evidence relating to quality of life (in the persistent vegetative state or severe cases of neurological disorder) but are irrelevant to the question whether an individual is alive or dead. Veatch’s defense of higher brain formulations is more plausible: It ‘‘stands or falls on the claim that the essence of the human being is the integration of a mind and a body, a position reflecting religious and philosophical assumptions that are beyond dispute’’ (Veatch, 2000: 111). This clearly places cultural and moral concerns at the center of the issue, but it raises the troubling objection that although most of the world’s religions and cultures insist on the integration of mind and body as the essential feature of life, there is a tremendous reluctance to treat a body as fit for burial or cremation if it can continue to breathe unaided, irrespective of its irreversible loss of the capacity for mental life. Nevertheless, it is uncertainties with the standard concept of brain death that underpin Veatch’s pluralism. He emphasizes that the recognition of death is not merely a neurological issue because it involves ‘‘social, normative issues about which all citizens may reasonably voice a position relying on their personal religious, philosophical, and ethical views of the world’’ (Veatch, 2000: 117). Consequently, he states, legislation should permit ‘‘patients to choose while competent an alterna­ tive definition of death provided it is within reason and does not pose serious public health or other societal concerns’’ (p. 116). In the case of children or the inca­ pacitated or those who have not expressed themselves, decisions could be referred to the next of kin. However, within this range of limited pluralism, choice may still reflect a wide range of ‘‘theological and metaphysical beliefs along with theories of value’’ (p. 118), and con­ sequently ‘‘there are not just two or three plausible definitions (cardiac, whole brain, and higher brain defi­ nitions); there are literally hundreds of possible variants’’ (p. 118). Apart from the problems this would create regarding hospital routines, there would be several interesting ramifications. One might advance or delay the time of death for a variety of reasons. One might insist on an extension that allowed a proxy vote in an election or even achieve tax savings by either advancing or delaying the recorded time of death. According to Smith, ‘‘If the client reached his condition near year-end, with creative

tax advice and prior planning, the client could in effect permit others to select for him the tax year in which he died’’ (Smith, 1986: 851). Aside from these legal and fiscal eccentricities, the essential ethical objection to individual or subjective definitions of death is that they will inevitably blur the distinction between ceasing ther­ apy when the patient is dead and ceasing therapy as an act of euthanasia. Arguments for pluralistic concepts reveal a question­ able attitude toward the ethical standpoint of the health care providers. It would seem that doctors and nurses, as providers of the technology, should stand outside of ethics and perform under the direction of the patient or con­ sumer. Medical knowledge and expertise are seen to be morally neutral. However, suppose a team of physicians held the overall view that it is immoral to treat the living as dead or the dead as alive. Having made a diagnosis, they would have a duty to engage in behavior appropriate toward either a dying patient or a corpse, whatever views the patient may have expressed. A clash between the moral standpoints of physicians and patients is a very likely outcome. Doctors whose expensive education is funded out of the public purse have an obligation not merely to obey the wishes of individual patients but to apply their knowledge about the mechanics of life and death and share it with the general public. In so doing, the debate about appropriate standards for determining life or death is still primarily philosophical and moral, but med­ ical expertise is not a mere extension of the technical apparatus. Understanding the technology for determining between life and death is virtually inseparable from recognizing the moral requirement to behave appropri­ ately toward either the living or the dead. There is little doubt that the public wants from their doctors a clear-cut unambiguous standard for deciding when to stop treating a person as alive and recognize that he or she is a corpse. Also, doctors as well as medical scientists have a moral and philosophical obligation to meet this imperative. It is worth noting that the shift from cardiocentric concepts of death to neurological concepts was not merely a technical issue; the major developments in cardiac resuscitation and intensive care in the 1950s and 1960s placed a moral obligation on physicians to provide concepts and criteria that would indicate irreversible changes in the organism that would satisfy philosophical and moral notions about the boundary between life and death. This was the pri­ mary reason why brain-related formulations replaced cardiocentric formulations. Although Veatch correctly emphasizes the moral dimension in discussions on the standard of death, his appeal to consumer pluralism is incompatible with the moral dimension of medical science and cultural requirements for an unambiguous and singular concept of death.

Death, Medical Aspects of 729

Confusion between the Diagnosis of Death and Criteria for Organ Transplantation A familiar criticism of the concept of brain death is that it is a device to declare death so as to facilitate organ transplantation. Tremendous pressure exists for more transplant donors, and this pressure is likely to increase. Physicians treating a terminally ill patient can be sub­ jected to conflicting moral pressures when it is known that organs of that particular patient can be used to save the life of another. To avoid the requirement for transplant organs interfering with decisions concerning the diagnosis of death, various proposals have been made whereby more stringent tests are performed on potential organ donors. However, critics have noted that these very requirements may create public anxieties, rather than avoid them, because they introduce the notion that there is a special kind of death awaiting organ donors. Patients undergoing tests for a diagnosis of brain death must be in intensive care units and be ventilator depen­ dent. The moment that brain death is diagnosed is, for such patients, the moment when organs can be sustained postmortem ready for eventual retrieval. Several critics of the standard model have drawn attention to difficulties involved in determining death, on the one hand, and criteria for organ retrieval, on the other hand, suggesting a linkage between brain death and organ transplantation. This linkage has been endorsed in countries where there may be strong cultural objections to brain death as a valid concept of death; consequently, legislators have attempted to limit the employment of brain-related criteria to cases involving organ donors. Traditional Japanese culture is not amenable to concepts of brain death and remains so despite the passing of the Organ Transplant Law in 2007. The law appears to reflect a compromise with cardiocentric concepts, on the one hand, and requirements for organs, on the other hand, thereby multiplying both medical and ethical confusion. Thus, ‘‘‘brain death is a human death’ only when an organ transplant is on schedule’’ (Tanida, 2008: 6). Conventionally, the determination of death was fol­ lowed by the act of drawing a sheet over the corpse and initiating actions associated with proper disposal of the remains. A clear-cut line separates the two activities. There is a moral imperative to classify or define a person as dead or alive because the consequences of such a decision affect actions toward that individual. It is immoral to treat the living as dead, and it is also immoral to treat the dead as alive. Certain actions performed on the dead, such as preparation for burial or cremation, are morally inappropriate for the living. The line between life behavior and death behavior is blurred, however, when procedures normally associated with prolonging life are

employed to maintain transplantable organs in an optimal condition or in cases involving postmortem birth. In fact, the prolonged postmortem management of the brain dead has given rise to serious concern regarding the validity of brain death. When death marks the boundary between the cessa­ tion of therapy for the dying and the initiation of procedures associated with transplantation, there is a moral requirement for a principle of separation. Thus, practices and, indeed, laws have emerged that require a different institutional framework for dealing respectively with the treatment of the dying and the management of a corpse. In most European countries, there are laws and regulations that stipulate that the physician in charge of a patient waiting for a transplant organ cannot determine the death status of a potential donor or be involved in the extraction of particular organs. This avoids a conflict of interest on the part of doctors and safeguards the rights of seriously ill or dying patients. In practice, referral to the transplant team from the intensive care unit may involve a necessary amount of collaboration. In such circum­ stances, there is a shift in attitudes toward the potential donor following a diagnosis of brain death. Linda F. Hogle recalls an experience in the United States in which she noted that the potential donor had a distinct identity as a person up to the time the doctors determined that he was probably brain dead and thus a potential organ donor. From this point, there was a continual shift through the process of determining eligibility and the right to use bodily mate­ rials up to the time of procurement itself. As soon as brain death was declared, procurement personnel dropped any reference to the person as a patient and ceased using the patient’s name. He was thereafter referred to by cause of death, age, or hospital location or simply as the donor; for example, a brain dead patient may be called ‘‘the twentyfour-year-old-drive-by shooting at the General Hospital.’’ (Hogle, 1999: 142)

This change in attitudes reflects, perhaps, the most important ethical principle in transplantation ethics – the principle of separation, which requires a distinction between duties appropriate to the dying and procedures associated with the disposal of the corpse and that man­ agement of the dying donor should not be influenced by the interests of the potential recipient. It has been maintained here that the case for brain death should stand on its scientific, philosophical, and cultural merits, not dependent on utilitarian advantages. Although some philosophers and physicians have maintained that criteria for death should be linked to organ retrieval, and that the donor should be given an opportunity to opt for criteria for death in circumstances that facilitate an auton­ omous desire to donate organs, prevailing opinion supports

730 Death, Medical Aspects of

the ‘dead donor rule.’ In medicine, we have argued, the requirement for objective criteria for death, and hence cessation of treatment of the patient (which is distinct from measures relating to the postmortem management of that patient’s organs), must be independent of any extra­ neous considerations. If organ transplantation had never developed, or if there were sufficient funds to ventilate every dying patient indefinitely, there would still be an ethical objective to seek reliable criteria for death. See also: Advance Directives; Brain Death; Death, Definition of; Death, Social Attitudes Toward; Organ Donation and Transplantation.

Lamb D (2001) E´tica, Morte E Morte Encefa´lica. Sao Paulo: Office Editora e Publicidade. Machado N (1999) Using the Bodies of the Dead. Aldershot, UK: Ashgate. Pallis C (1990) Brainstem death. Handbook of Clinical Neurology 57: 441–496. Pallis C and Harley D (1996) The ABC of Brainstem Death, 2nd edn. London: BMJ. Smith DR (1986) Legal recognition of neocortical death. Cornell Law Review 71: 850–888. Tanida N (2008, March) Brain death and organ transplant face the intractable traditional view on death in Japan. Newsletter of the International Association of Bioethics 20: 5–7. Veatch RM (2000) Transplantation Ethics. Washington, DC: Georgetown University Press. Zaner RM (1988) Death: Beyond Whole Brain Criteria, pp. 1–14. Dordrecht: Kluwer.

Further Reading

Biographical Sketch

Gill P (2000) Brainstem death – An anthropological perspective. Care of the Critically Ill 6: 217–220. Hogle LF (1999) Recovering the Nation’s Body. New Brunswick, NJ: Rutgers University Press. ´ Lamb D (2000) Transplante de Orgaos Etica. Sao Paulo: Editora Hucitec.

Former Reader in Philosophy, University of Manchester; Reader in Bioethics, University of Birmingham. Currently Lecturer in Animal Welfare Ethics, University of Southampton; Member Companion Animal Welfare Council, House of Lords, UK.

Death, Social Attitudes Toward S van Hooft, Deakin University, Burwood, VIC, Australia ª 2012 Elsevier Inc. All rights reserved.

Glossary Death The permanent cessation of vital functions in an organism as a whole caused by destruction, injury, malady, or senescence and resulting in a corpse. Dualism The name for a variety of views about the human person. The simplest is the view that a person comprises a body and soul or mind. A more complex version distinguishes personhood from the biological body. Dying The process which leads to death occasioned by injury, malady, or senescence. Eschatology The study of what happens after we die. The term is also used to describe thinking about what might happen when the world ends. Karma A concept which suggests that the soul is a life force that is incarnated in a physical living entity in an endless cycle of reincarnations in a way that is dependent upon the ethical quality of any given life that it occupies.

Introduction Death is the object of a great deal of philosophical and ethical thought. It looms large in the lives of all authentic individuals and establishes the ultimate horizon against which the values of life and of personal existence are played out. Philosophers have discussed how death might be defined, whether death should be feared, whether it is an evil, and the mortal nature of human beings. Along with religious thinkers, they have specu­ lated about what forms of personal existence might occur after death, and they have offered moral guidelines about causing death. Such inquiries have tried to meet our needs for meaning in life, for practical guidance on life and death issues, and for guidelines in helping the dying and the bereaved.

Attitudes toward Death Death is inescapable and, for many, an object of fear. As such, it is not possible to live a full and authentic human life without forming some attitude toward it. One such attitude suggests that death simply does not matter. We would only trouble ourselves if we thought about it, and

Naturalism A view of the world that refuses to appeal to any metaphysical or supernatural entities in order to make sense of things. Palliative care Medical or nursing care provided to patients who are dying without reasonable hope of cure from their injury, malady, or senescence. The object of such care is the relief of the suffering associated with dying. Permanent Vegetative State A state of an organism in which the hemispheres of the cortex are so badly damaged that all possibility of consciousness is destroyed even while the brainstem, with or without the assistance of medical life support, keeps the rest of the body functioning. Religion A set of metaphysical beliefs that give hope of an existence after death: most usually centered on the existence of a divine supernatural agency. Soul A postulated spiritual entity said to inhere in a living human body and to be the source of all values for that body. Many believe that souls are immortal.

the best way to live one’s life is to ignore the death that will inevitably end it. The most famous argument for treating death with indifference was put forward by the Greek Stoic philosopher Epicurus (341–270 BCE), who argued that insofar as we cannot experience anything after we die, the state of being dead need not hold any terrors for us. There is no point in fearing death because there is no unpleasant experience involved in being dead. Of course, we may fear dying. There can be unplea­ sant experiences involved in the processes that lead to death, especially if that death is caused by malady, injury, or senescence. However, death itself is the end of such experiences and thus cannot rationally be an object of fear for us. Another feature of the argument that is less fre­ quently noted is that it urges us to adopt an attitude to death during life. Not only does it argue that it is irra­ tional to fear death but also it argues that we should make our mortal lives enjoyable. By seeing that death is a matter of indifference, we can go on to enjoy the life that we have untroubled by fear. However, it is arguable that the rejection of death is the default attitude to death. That is, for most people today, the idea of death is the idea of something strange, foreign, unknown, undignified, external to life, evil, and threatening. It is something that we do not like to think

731

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about and that we regard with fear and loathing. One of the most frequently seen cultural responses to this fear is religion. It has been argued that it was humanity’s grow­ ing awareness of death that gave rise to religious beliefs and practices at the very beginnings of human existence. The first hominid creatures who buried their dead were aware of an uncanny presence around corpses and did not just leave them out as carrion for wild animals to consume. They felt a need to deal with the corpses of their fellows with reverence and awe, and although we cannot know what the exact nature of their thoughts were, it seems clear that such occasions took them into a realm of thinking that was beyond the everyday and that marked the beginnings of a spirituality that is still a deep current in many cultures today. It has since become one of the central functions of religious belief, no matter what the religious tradition of which it is an expression, to offer an account of death that would make it mean­ ingful as a part of life and to promise an overcoming of death that would provide consolation for the stresses and pains of life.

Religious Conceptions of Death Different religions approach death in different ways. The focus of Jewish concern about death is on the appropriate ceremonies of mourning. Funeral rites and prescribed periods of mourning are designed to commemorate the deceased, support the bereaved in their loss, and recon­ stitute the community. This reflects the Jewish tendency to focus upon life here on Earth rather than upon thoughts of an afterlife. The theological conceptions that undergird these practices are various. Some traditions believe in an eternal afterlife and the resurrection of the body, whereas others see death as the final, decisive moment of a life. Some believe in a soul that can continue in a postmortem existence, whereas others view the soul as the principle of life that dissipates at death. However, the decisive beliefs focus on the restorative power of remembering the deceased through observing prescribed rituals. Catholics begin their reflections on death from the premise that death is an absurdity that has been brought into the world by sin. As St. Paul said, ‘‘The wages of sin is death.’’ Whether or not this implies a belief that Adam and Eve were literally immortal before they sinned, it clearly indicates a conviction that death is an evil and a blemish on the human condition that needs to be repaired. This repair was brought about by the death and resurrection of Jesus. Jesus is conceived of as both man and God. As man he is mortal, and as God he is the master of both life and death. He fully undergoes death in fulfillment of his humanity while also mastering death in his resurrection. Faith in Jesus therefore issues in hope of resurrection for all of humanity. Whereas death could

only have been seen as an absurdity before this event, the resurrection of Jesus promises all of humanity that death can be overcome and eternal life attained for those who believe. Catholic theology went on to elaborate doctrines concerning life after death that included the concept of ‘hell’ as a state of punishment for those who had turned away from God through serious sin and also a period of punitive cleansing in ‘purgatory’ in which the soul, upon being separated from the body, is cleansed of its lesser sins before it can attain union with God in heaven. Although the church has repudiated the concept, there was also belief in ‘limbo,’ in which the souls of those good people and infants who were not baptized would go after becoming separated from the body. However, the most hopeful doctrine was that of ‘heaven’ as a place where the blessed would go after death and where even their restored ‘spiritual’ bodies would go after the final judgment and resurrection of the dead that would occur on the ‘last day.’ Catholic ritual has moved, since the second Vatican Council of 1965, from expression of grief, with black vestments and the singing of dirges at requiem masses, to a celebration of risen life expressed through the use of white vestments and more joyful forms of song. The deceased now shares in the resurrection of Jesus. Protestant denominations inherited a great many of these doctrines but gave them a more individualist orientation. Largely rejecting the Catholic belief in the need of priests or saints to act as intermediaries between the individual and God, most protestants highlight the spirituality of personal existence with God rather than the need for elaborate rites and institutional practices. If death threatens the personal annihilation of the indi­ vidual, then Jesus’ death promises salvation. Jesus died as a sacrifice offered to God in order to wash human beings of the sinful state they inherited from Adam and Eve. As a result, salvation after death is available to all Christians who believe in Jesus. The form that this salvation takes is similar to that of Catholic belief: eternal spiritual life in heaven. This ‘eschatological’ conception is believed by most to refer to a future form of existence, although some believe that the Kingdom of God can be realized within this mortal life. Accordingly, death is not the end of existence, and one can live with the hope of a future life of blessedness in heaven and reunion with one’s loved ones. Muslim beliefs regarding death are similar to those of the Christian tradition. What happens immediately after death is not clear, but there is to be a Day of Judgment on which Allah will reward the just. The Quran speaks of heaven as a garden of delights and hell as a place of torment, but it stresses that these images are purely metaphorical. Only Allah can know what these states are like. Nevertheless, death is seen as a gateway to eternal

Death, Social Attitudes Toward 733

life: As the Prophet Muhammad stated, ‘‘The grave is the first step of the journey to eternity.’’ The religions that flourished on the Indian subconti­ nent, most numerously Hinduism and Buddhism but also including Jainism and Sikhism, begin from a radically different conception of both God and of the soul. Although these religions celebrate and worship many supernatural deities and spirits – much as many Christians and Muslims believe in angels and saints – the conception of the ultimate cosmic power shared by these religions is so transcendent to human experience as to defy theological formulation. Buddhism eschews talk of such an existence entirely, whereas the other traditions refuse to think of it as an entity of any kind. In this way, the conceptions of ultimate cosmic agency shared by these traditions are somewhat removed from the problem of how death might be understood. Rather, this topic falls within the range of beliefs that center on the nature and destiny of the soul. The central belief here is that of the law of ‘Karma,’ which suggests that the soul is a life force that is incarnated in a physical living entity in an endless cycle of reincarnations. In this way, a living thing – be it a plant, an animal, or a human being – is an embodiment of an eternal principle of life. As such an entity comes to life and then dies, it does not pass into and out of existence but, rather, changes from one form of life to another. It is the underlying principle of life that is the object of our consideration, rather than the individual and temporal entity that has come into life and passed out of it. Life as such continues and passes into and out of earthly mani­ festations in forms that are suitable to it. The form that is suitable to it is a function of the ethical quality of the life that it has lived while incarnated in a previous worldly existence. Thus, if a donkey, for example, lives an ethi­ cally exemplary life for donkeys, then the reincarnation of the soul/life force that it represents may return as a lower order human being. If a lower order human being lives an ethically exemplary life for lower order human beings, then the reincarnation of the soul/life force that it repre­ sents may return as a higher order human being. In the case in which an ethically excellent form of life is not lived, the process will go into reverse. This cosmology gives an excellent account of suffering and of death. Suffering is seen as the inescapable lot of anything that lives because it is the squeezing, as it were, of transcen­ dent existence into a worldly form. The degree of suffering that a creature undergoes is merited as a func­ tion of the ethical quality of its previous lives. For its part, death is the transition from one form of worldly life to another and holds the promise of a reduction in suffer­ ing in future lives if one lives well in the present. In many of these traditions, the final aspiration of worldly exis­ tence is to escape altogether from this cycle of life and death into a condition of liberation in which the soul attains a deep unity with the ultimate transcendence

beyond the world. This condition is sought through spiri­ tual, meditative, and ritual exercises that seek to dissolve the existential reality of one’s own being. A further belief about death that is common to these traditions is that fear of death is a false consciousness based on considering one’s present self to be a reality that matters. However, the self is an illusion that does not matter. It is nothing more than the present incarnation of the eternal life principle. Thus, if death is the end of this self, it is the end of something that does not matter. The Chinese traditions of Confucianism and Daoism differ from each other in many respects but share an attitude toward death. The ancient Chinese sage Zhuangzi (c. 370–11 BCE) came to the realization that at his death, he would join the flux of the universe where everything passed from one form into another rather than being locked into a fixed identity. He could not isolate himself from the endless flow of change that con­ stituted reality. To seek to retain one’s own identity was to close oneself off from the flux of being. This thought – that death involved no separation from what is, and that he would remain a part of what is even after his death – gave him deep comfort. At a more practical level, there is a great emphasis in these traditions upon ritual. Ancestors are honored and their memories revered through appropriate observances and ceremonies that are thought to retain the link between the dead and the living. In these ways, the predominant attitude to death in these traditions is one of acceptance.

Critiques of Religious Conceptions It is not possible to make sense of the idea of life after death or of personal immortality without adopting a premodern conception of personhood. Under the influ­ ence of Christianity and, later, of Descartes, Western ideas of the human person involved a kind of metaphy­ sical dualism in which a person was deemed to be a combination of two kinds of thing: (1) a biological body with features such as the bodies of animals and plants and (2) a spiritual substance called a soul that was immortal and that, in the religious versions of the doctrine, had a glorious destiny with God in heaven – a destiny that persons could fail to achieve because of their sinfulness. As we have just seen, such views are not unique to the Western tradition. Immortality in one form or another is promised by most of the great world religions. It might be thought that these religious responses to death are all in their own ways a denial of death. The structure of the typical religious comprehension of death is that death is seen as a gateway to another and more perfect form of existence. In the context of religious systems of thought, death is rejected and denied through

734 Death, Social Attitudes Toward

not being seen as final. It is seen, rather, as a transition from imperfect worldly existence to a perfect heavenly one or from one form of worldly existence to another. However, this is a deeply ambivalent position. Although it is a denial of the reality of death, it is also a form of acceptance of death. To those who see themselves as good, it provides the consolation that comes from the promise of eternal life – a consolation that permits them to accept the inevitable transition to that life. However, there is a deep philosophical puzzle in any view of death that depends on a metaphysical postulation of a soul: namely, how can a soul have experiences? It is the body, with its senses and with its brain, that is the organ of experience. Accordingly, a disembodied exis­ tence would have to be one that was devoid of any experience. Such a form of existence would be without value for the one whose existence it is.

Secular Attitudes Many contemporary thinkers refuse to engage in reli­ gious speculation and reflect upon death in naturalistic terms instead. However, the fundamental question remains as to whether death is an evil. One reason for this is the grief that it causes in others. The loss to loved ones and to the community of a person’s death is felt as an evil. However, the loss to me of another person whom I love is of a different order from the meaning of my own death to me. Questions about whether death is an evil need to distinguish between the impact that the death has on others and the impact that the anticipated death has on the person who will die. Death is especially an evil when its timing and circum­ stances are wrong. There is a natural trajectory to a life, and when this is foreshortened we call it an evil. Moreover, there is a natural process of dying, and when this is lengthened by pain, suffering, or futile medical intervention we regard it as an evil. These intuitions depend on the idea that there is a natural life span and a natural process of dying, and anything that disturbs or frustrates these, whether it be premature death or an elongated process of dying, is evil. A death that occurs peacefully after a full and fruitful life is not seen as an evil. Great persons who have achieved much in life can die with dignity because of what they have achieved. It might be replied, however, that whether one has lived a life of achievement or gone through life in a humbler mode with but little to show for it, it might always be desirable for life to be longer. Even the person who has achieved much could well wish for more vigorous years so that he or she could achieve more, and the humble person might wish for more years so that he or she could achieve something of note.

However, would immortality be a good? If we knew that we were immortal, we would not have any sense of urgency in doing what we do. We could always put off to tomorrow what we did not feel like doing today because there would be an infinity of tomorrows. Mortality is a spur to excellence. Moreover, death is necessary for the renewal of life. Biologically, death is necessary in order to provide fuel for younger life. This is true not only because animals and plants feed off each other but also because in a world of finite resources, older creatures have to make way for the younger so that those resources are not depleted. The very process of evolution depends on the culling of the variations that genetic diversity produces so that those most fitted to their environments can flourish while the rest die out. An immortal world would either degenerate to an unacceptable degree or it would have to be totally stagnant. Either scenario is too unpleasant to contem­ plate. Death is indeed a necessary part of the natural life cycle. Against these points, however, it might be said that this does not provide the individual with any comfort. The question is not, ‘Is death an evil in the general scheme of things?’ but, rather, ‘Is my death an evil to me?’ I did not, after all, choose to be born, so I ought not now to be asked to accept death as contributing to evolu­ tionary goods. My death could be an evil to me even if I could see that it is a necessary part of the way the world works. It has been argued against the Epicurean argument that although it is true that when you die, you no longer exist to suffer the harm or feel the regret that would be occasioned by your life having come to an end, it can still make sense to say that you are harmed by death. It robs you of a life that you would have had if you had not died. It is like a harm you suffer that you do not know about and cannot experience. Suppose that others tell denigrating lies about you without your knowing. Although you do not experience the harm, the harm is still real. Similarly, when you are dead, you cannot experience the harm of not being alive, but it is nevertheless a real harm. Insofar as I die when I die, I could always have died later, even if only slightly later. Thus, it always robs me of some dura­ tion of life that I could have had. It is obvious that young persons who are killed in senseless accidents or through avoidable disease suffer a harm because the life that they could have had has been denied them. But every death robs its victim of ongoing life, however brief it might yet be, and so is an evil. However, why is not having life an evil? After all, before one was born, one did not have life and that was not an evil. We do not regret the time we did not have before we were born. We might sometimes playfully say that we wished we had been born at an earlier time, but there is something illogical about wishing to have a

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longer life by having been born earlier. If you were born earlier than you were, you would not be you. You would be someone else.

Death and Authenticity There are many thinkers, both religious and secular, who argue that death must be accepted not only as an inevit­ able end of life but also as a horizon to life that would make that life meaningful. It is not just that the inevit­ ability of death makes any obstinate attitude of nonacceptance irrational; it is also that we should medi­ tate upon our own deaths so as to give a dimension of depth and meaning to our lives. The desire to stave off death is a direct expression of the will-to-live that can be imputed to all living things as a basic motivational structure. Death is the very nega­ tion of such a vital impetus. So why should it be accepted? It cannot be avoided, but why not live as if it could? Let death come when it may, but live life without concern for it. Against such a policy of rejection, many thinkers have urged not only that death should be accepted at the end of life, or as a possible intrusion into it at any time, but also that it should be embraced and meditated upon as a constant presence in one’s life. Seeking an acceptable conclusion to a happy life is not something we can put off until our twilight years. We need to be ready for death at any time in our lives. The modern secular philosopher who has most fully developed this idea is Martin Heidegger. Heidegger is opposed to the tradition in which death is variously seen as the separation of body and soul, the beginning of a new kind of existence, an example of worldly mutability and corruption (present also in animals and plants), and the limit point of a person’s life present only in an objective future. For Heidegger, death creates the totality, the unity, and the uniqueness of each person’s existence. Accordingly, death is not an end or limit to life but, rather, an aspect of life that is present throughout life. It is not only in the future but also a present aspect of life now. Phenomenological reflection discloses that a central feature of personal existence is that it is lived with aware­ ness of one’s past, one’s present, and one’s future. We know – at least in the mode of objective, theoretical knowledge – that we will die. However, it is not this objective knowledge that structures our subjective exis­ tence as a finite being. Rather, it is a deeper awareness of death as the limit of our finitude. When we envisage our end, we read back from that future a trajectory of time that can take on a narrative form. This gives us a sense of ownership and responsibility for our own lives. Most of the things I do consist in my filling roles that are defined by society and that could be filled by others. They do not define me uniquely as the I that I am. There is only one

thing in my future that only I can do and that no one else can do for me, and that is to die. I am the only one who can die my death. My being dead is not a role that anyone else can fill. My death is a possibility that only I can realize. It defines me as the self that I am. However, in ‘objective’ biological thought, death always prevents the fulfillment of personal life. It always cuts our lives short. On the conception of life as will-to­ live, death is always a frustration of our vital trajectory. But this biological conception of death is inadequate because it places the end of existence outside of that existence. On this conception, death is an event that belongs to the unknowable reality that lies outside of our cognitive purview. As a result, on this conception, our lives can only be lived as inherently limitless though subject to contingent external termination. In contrast, authentic personal existence is felt as limited. It is always already open to its end. We are always ready to die; because we know that we are not immortal, we cannot but accept death into our lives as a lived horizon. Such an acceptance is not just a bowing to the inevitable defeat of will-to-live by something exterior to that will or that subjectivity. It is the embrace of a termination that is already inherent in, and belongs to, that subjectivity. Inauthenticity consists in making oneself too busy to notice the always present dark horizon of death, in ascrib­ ing ultimate importance to worldly activities, or in taking death to be an event in the future that does not yet apply to oneself. Our death is certain, but we do not know when. That we flee from this dread into inauthenticity shows that we have an implicit recognition of the death that inspires it. There is a substratum of anxiety that is appro­ priate and necessary to the meaningfulness of our lives. It may be asked whether Epicurus’ argument against the rationality of fearing death actually confronts this anxiety. It confronts the fear of death when that fear takes the form of our thinking that it might be unpleasant to be dead, and it banishes this fear as being irrational. However, this merely supports the work of our culture in hiding death from us and in imposing inauthenticity on personal exis­ tence. It merely encourages us to hide death from ourselves in the way that modern institutions and cultural practices do. If the argument were to negate the deeper anxiety that is an inchoate expression of our finite being insofar as it is finite, then it would extirpate an emotion that is crucial to our having a meaningful life and our being authentic. We need to feel our finitude in order to be a unique self and in order to live life authentically.

Death and the Clinician For plants and animals, death is the permanent cessation of vital functions in an organism as a whole caused by destruction, injury, malady, or senescence and resulting

736 Death, Social Attitudes Toward

in a corpse. How does this biological definition apply to human beings? In the United States, all states have adopted the Uniform Determination of Death Act. This states that an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.

These two clauses identify clear indicators of death. Persons are dead when they are no longer breathing and have no heartbeat or when their brains are damaged to such an extent that both the control of those vital func­ tions and consciousness are no longer possible. Although these criteria seem to be alternatives, they are closely linked. They differ in that medical practitioners discover whether breathing and blood flow have stopped in fairly simple ways at the bedside, whereas they need sophis­ ticated techniques such as electroencephalograms to detect whether the brain has ceased to function. However, if the whole brain has ceased to function, not only will consciousness have ceased but also the control of breathing and heartbeat will have stopped. In this way, it is the whole-brain criterion that is most crucial. If the whole brain is destroyed, respiration and circulation will not normally be possible. It is often difficult to identify exactly when the moment of death occurs. Sophisticated medical equip­ ment will monitor various vital functions, but these functions will not all cease at the same moment. The heart may stop beating at one moment, breathing may cease at another, and the electrical activity of the brain indicative of consciousness or the control of vital func­ tions may cease at yet another moment. At which of these moments has the organism died? The problem is that, conceptually, the everyday notion of death does not admit of degrees. One cannot be a little bit dead or partly dead and also partly alive. One might be dying, but death occurs at the end of that process. It would follow that, even if it is difficult for clinicians to identify it, the transition from being alive to being dead must be a momentary one rather than a process. However, breath­ ing and heartbeat may continue spontaneously or with medical assistance for some time even after the brain has been irreparably damaged. The Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death was formed in the 1960s with the purpose of defining irrever­ sible coma as a new criterion for death. It set out a number of tests that clinicians should apply – tests whose purpose was to establish that there was no discernible central nervous system activity. The upshot was that when a person’s brain is irreparably damaged to the point where that person is in irreversible coma, that person may be

declared dead. This criterion for when death occurs has been largely accepted in the medical community. The concept of brain death suggests that a person is dead when there is no longer any functioning in the person’s brain even if there is still heartbeat or breathing. However, reference to the death of the whole brain hides a source of possible confusion. The brain stem controls such vital functions as breathing and heartbeat, whereas the cerebral cortex supports consciousness, intelligence, and subjectivity. These two parts of the brain can each separately be irreparably damaged. If the hemispheres of the cortex are badly damaged, all possibi­ lity of consciousness can be destroyed even while the brain stem, with or without the assistance of medical life support, keeps the rest of the body functioning. This is described as a permanent vegetative state. It can also happen that the body is all but inert except for the artificial maintenance of breathing and heartbeat while the cortex is undamaged so that the victim is conscious and locked in within a barely functioning body. This has raised the question of whether the whole brain criterion for death is too crude. Which part of the brain is crucial to the question of whether a person has died? Accordingly, some bioethicists insist that it is only the destruction of the neocortex that indicates death, and that the death of a person is the permanent end of consciousness as indicated by the destruction of the neocortex, even in those cases in which the brain stem continues to function and keep the organism breathing. Such cases present problems because the organism in question could be regarded as a ‘breathing corpse’ or, even more puzzlingly, as a ‘living corpse.’ There is a temptation to think of such matters in dualistic terms by suggesting, for example, that the person has died while the body lives on. It would be more helpful to describe such situations as a period of time when the organism is not living-as-a-person but still living-as-an-organism. During this time, we should avoid speaking of the ‘per­ son’ as dead because that would imply a dualistic distinction between a person and his or her body, and it would also imply a nonbiological notion of death. However, we might, perhaps, speak of the person as having ceased to exist. For a person to exist is for a conscious organism to gather its past into its present and to project itself into the future so as to secure its own identity and have a life and to do so self-con­ sciously. If the brain cannot support this existential stance because of malady, injury, or senescence, then the organism ceases to exist as a person even while it continues to live. This would not be a dualistic way of speaking because persons are not seen as entities that stand in dualistic relation to their bodies and because we are not saying that the person has died while the organism lives on.

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Aside from these conceptual puzzles, the crucial bioethical issue is what should be done with the body. Should life-support systems be turned off? Can organs be harvested from it? Can it be buried? Many bioethicists suggest that these are ethical decisions that turn on acknowledging that the person has ceased to exist even if the body is still alive in a biological sense, and that the moral obligations that apply to persons no longer apply. Accordingly, there is no obligation to maintain life support. There are, however, moral and cultural obligations that apply to the body in question as well, and the decision to harvest organs from it, like all difficult ethical decisions, must be taken with sensitivity to the wishes of the person who has ceased to exist and of that person’s family.

Bereavement and Counseling There is an occasion for virtue in every death. For the dying person, there is the virtue of being ready for death and of letting go of life when the time comes. For the family and loved ones, there is the virtue of resignation in the face of the inevitable loss of one who is loved and the virtue of love itself in sustaining the dying in their last moments and honoring their dying wishes. For healthcare workers and clinicians involved in the case, there is the virtue of letting be what must be. Withholding futile treatment is the most obvious expression of this. Withholding aggressive treatment in accordance with expressed or implied wishes is another. Respecting the wishes of the patient and of loved ones rather than seeking to exercise the power that attaches to profes­ sional skills and responsibilities is also important. The clinician has special authority and power in the clinical setting. This can be used to sustain those who are distressed. Advice on how long the dying person has left, advice on palliation and its effects, and information on the nature of the dying process must all be conveyed in a way that is not just informative and sensitive but also supportive. Even when no further medical intervention is useful or called for – a moment when it might be thought that medical responsibility ceases – clinicians still have the power to support the dying and the bereaved with their very presence. Those who are dying and the loved ones of those who have died might be helped to face the reality of death by those who understand the grieving process. Elisabeth Ku¨bler-Ross described five stages in this process, although it remains an open question whether these stages all need to occur in sequence, whether any one of them can be skipped, or whether they describe exhaustively what people undergo in a variety of cultures. That said, it has proved helpful to recognize that people facing imminent death experience feelings of denial and rejection of the inevitability of death and of anger at its unwelcome onset. They may engage in a form of bargaining with higher powers through which they promise to make changes in their lives in return for

more time on Earth. They may experience periods of depression and defeat and, finally, a form of acceptance. It is also common for people who are dying to seek solace in either religious or secular forms of spirituality so that carers or clinicians who tend to the dying need to be sensitive to both their spiritual and emotional needs. After all, we are all going to die. See also: Brain Death; Death, Definition of; Death, Medical Aspects of; Euthanasia (Physician-Assisted Suicide); Palliative Care.

Further Reading Ad Hoc Committee of the Harvard Medical School (1968). Definition of irreversible coma. Journal of the American Medical Association 205: 337–340. Bowker J (1991) The Meanings of Death. Cambridge, UK: Cambridge University Press. Callahan D (1993) The Troubled Dream of Life: In Search of a Peaceful Death. New York: Simon & Schuster: Schuster. Dastur F (1996) Death: An Essay on Finitude. London: Athlone. Epicurus, Letter to Menœcus, quoted in Choron J (1963) Death and Western Thought. New York: Collier. Fingarette H (1996) Death: Philosophical Soundings. Chicago: Open Court. Gavin WJ (1995) Cuttin’ the Body Loose: Historical, Biological, and Personal Approaches to Death and Dying. Philadelphia: Temple University Press. Gervais KG (1986) Redefining Death. New Haven, CT: Yale University Press. Heidegger M (1973) Being and Time (Macquarrie J and Robinson E, trans.). Oxford: Basil Blackwell. Ku¨bler-Ross E (1970) On Death and Dying. New York: Macmillan. May T (2009) Death. Chesham, UK: Acumen. Nagel T (1979) Mortal Questions, pp.1–10. Cambridge, UK: Cambridge University Press. Rumbold B (ed.) (2002) Spirituality and Palliative Care: Social and Pastoral Perspectives. Melbourne: Oxford University Press. van Hooft S (2004) Life, Death, and Subjectivity: Moral Sources in Bioethics. Amsterdam: Rodopi. Williams B (1993) The Makropulos case: Reflections on the tedium of immortality. In: Fischer JM (ed.) The Metaphysics of Death, pp. 73–92. Stanford, CA: Stanford University Press.

Biographical Sketch Stan van Hooft is Associate Professor of Philosophy at Deakin University. He is author of Caring: An Essay in the Philosophy of Ethics (University Press of Colorado, 1995) and numerous journal articles on moral philosophy, bioethics, business ethics, and the nature of health and disease. He is co-author of Facts and Values: An Introduction to Critical Thinking for Nurses (MacLennan & Petty, 1995). He is also author of Life, Death, and Subjectivity: Moral Sources for Bioethics (Rodopi, 2004); Caring about Health (Ashgate, 2006); Understanding Virtue Ethics (Acumen, 2006); and Cosmopolitanism: A Philosophy for Global Ethics (Acumen, 2009). He conducts modern Socratic dialogues in a variety of set­ tings with professional groups, with the general public, and with individuals. His current research centers on the concept of hope in a secular and religious setting and its importance for both politics and bioethics.

Deep Ecology D Rothenberg, New Jersey Institute of Technology, Newark, NJ, USA

ª 2012 Elsevier Inc. All rights reserved.

This article is a revision of the previous edition article by Carl Talbot, Volume 1, pp 747–753, ª 1998, Elsevier Inc.

Glossary Anthropocentrism The normative ethical claim that the nonhuman world only has value insofar as it is instrumental in satisfying human desires. Biospherical egalitarianism The proposition that all organisms (and even all things) in nature are deserving of equal consideration. Ecocentrism The view, commonly opposed to anthropocentrism, that the acceptability of environmental practices should not be established solely in reference to human welfare, but should consider the effects of such activities on life as a whole. Ecosophy A personal philosophy of ecological harmony that guides everyday life.

Introduction Deep ecology is a term introduced by the Norwegian philosopher Arne Naess (1912–2009) in 1973 to suggest that environmentalism, in its strongest incarnation, must have at its root a fundamental change in the way humanity defines itself as part of nature. He opposed deep ecology to ‘shallow ecology,’ which is concerned only with humancentered considerations; for example, conservation strate­ gies are promoted with a view to securing the maintenance of natural resources for continued human consumption. Since that time, many environmentalists have advanced deep ecology as the philosophical foundation of authentic environmental policies. The typology seeks to distinguish environmental approaches according to whether or not they address environmental concerns from an anthropocentric standpoint, that is, one that is concerned only with the environmental impact of prac­ tices on the well-being of human beings. Deep ecology identifies anthropocentrism as the fun­ damental cause of environmental destruction, arguing that humanity is not separate from nature, but that all nature, including humans, is a unified whole. When evaluating the environmental acceptability of human practices, deep ecology does not restrict itself to asking what the effects on human interests are, but asks what are the consequences for all of nature. Deep ecology therefore promotes a lifestyle that seeks to harmonize with nature.

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Holism The theory that all the various parts of a system are internally related in such a way that the whole, of which they are a part, is more than the sum of these parts, in the sense that the whole has characteristics that are not explainable by reference to the properties and relations of its parts. Identification The process by which the individual self shares interests with nature as a whole. Intrinsic value Value residing in a thing simply because it exists, not because of any use it may have. Self-realization As employed by Arne Naess, a sense where the individual self become greater the more it shares its interests with those of the environment as a whole. Vitalism The doctrine that there is an essential, creative force that makes nature alive.

The Basic Tenets of Deep Ecology The Critique of Anthropocentrism Arne Naess has claimed that what is distinctive about deep ecology is its policy of asking ever-deeper, more fundamental questions about matters of environmental concern in order to arrive at the presuppositions under­ lying environmentally destructive activities. For example, deep ecologists argue that shallow approaches to this problem are limited to evaluating and alleviating the effects of pollution on human health, accompanied by technological endeavors to dissipate, or reduce, the harm­ ful consequences of pollution. In contrast, deep ecologists contend that their approach requires them to assess pollu­ tion from a point of view that considers its effects on the whole of nature. What is more, deep ecology goes further by questioning the value assumptions of modern society that drive a progressive expansion of the production and consumption of material goods, and whose technologies and industries are identified as the causes of pollution. Deep ecologists believe that their more penetrating analysis is further exemplified when one considers the use of natural resources. The shallow approach is char­ acterized as emphasizing the security of resources for humans (for the most part, those belonging to the present generation of affluent societies). The conservation of resources is entrusted to market force, which will suppo­ sedly place high premiums on scarce natural resources,

Deep Ecology

thereby retarding their overexploitation. Deep ecology, in rejecting this analysis, questions the very notion of a ‘resource,’ arguing that no natural object should be viewed only as a resource for human aspirations. Concerned with the well-being and flourishing of all of nature, deep ecology argues that human use of the envir­ onment ought to be governed by an understanding of the consequences of such use on the long-term maintenance of ecosystem integrity, with a view to encouraging the future health of all life. Whereas the shallow approach to such environmental problems as pollution and resource depletion is only occupied with human-centered concerns about its effects on human health and future opportunities, deep ecology rejects what it sees as this superficial, short-sighted per­ spective in favor of an ‘ecocentric’ approach that questions the effects of such destructive activities on life as a whole. The Unity of Nature Unlike shallow ecologists who stress the essential differ­ ence between humans and nature, deep ecologists argue that this dualism is misconceived. Often citing conceptual resources from Hinduism, Taoism, and Buddhism, the spiritual practices of ‘primal’ peoples, the philosophies of Spinoza and Heidegger, the late-nineteenth- and early-twentieth-century organicism of theorists such as J. S. Haldane, the vitalism of Henri Bergson, and the discoveries of modern quantum physics, deep ecology claims that there is no world of discrete things, only a single unity. Organismic analogy is employed by deep ecologists to convey their holistic understanding of nature where all life, and the various habitats it occupies, is considered part of the ‘superorganism’ Gaia, or the ‘expansive self.’ A number of basic assumptions make up this holistic account: The whole is more than the sum of its parts; the whole determines the nature of its parts; no understand­ ing of the parts can be achieved in isolation from the whole; and the parts are dynamically interrelated and interdependent. In this way the nature of any one thing in the world is determined by its relations with every other thing and its relation to the whole. Naess calls his particular brand of holism ‘relationalism,’ as he believes that an organism is defined (i.e., is what it is) by its relations with all the other parts of its environment and nature as a whole; thus he argues that ‘an organism is interaction.’ In line with its holistic loyalties, deep ecology rejects as inadequate and unsuitable the analytical method of modern science insofar as it assumes that discoveries about the nature of a thing can be made by isolating it and exposing it to experimental scrutiny. Deep ecologists are quick to stress the ‘nonanalytical’ nature of deep

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ecology’s understanding, and wish to replace the scientific ontology (that is, its account of the nature of being) of modern society with an account of the world as a ‘rela­ tional field.’ In this model there are no discrete objects, only the flux of a world of relations and interactions. All too often this understanding of deep ecology has encouraged rather obscure accounts of how we are able to gain knowledge about nature. Naess, in rejecting the methods of scientific inquiry, asserts that our knowledge of the world is not analytical but ‘experiential’; that is, it takes the form of impressions of the unity of nature. This experiential knowledge is the product of a specific eso­ teric epistemological faculty, the idea of which, for Naess, has its theoretical roots in the writings of Spinoza, and which provides us with a spontaneous intuition of natural unity. It is this intuited experience of the oneness of nature that forms the fundamental premise of deep ecol­ ogy. This would seem to make the attainment of knowledge as it is generally understood impossible, for to know something about any part of nature we must first have knowledge of nature as a whole. Biospherical Egalitarianism Deep ecology argues that if we recognize the essential unity of nature, such that the character of all forms of life is determined by their relations with all other life, and that any one organism is merely a particular instance of the total field of relations, then certain ethical conclusions naturally emerge. If all organisms are part of the same unified nature, then they all deserve equal consideration. This ethical proposition of the equal validity of every organism to realize its own good is termed biospherical egalitarianism. Deep ecologists have attempted to extend the remit of this ethical principle by stretching the term ‘life’ beyond its biological usage; so, for example, Naess has argued, ‘‘The intuitive concepts of life sometimes cover a stream, a land­ scape, a wilderness, a mountain, an arctic [sic] waste’’ (Naess (1984) The Ecologist 14: 202–203). This claim is possible, deep ecologists believe, because value is not assigned by humans, nor is it dependent on biological assertions about, for example, the relative complexity of an organism’s structure (as the arguments of many who wish to extend moral consideration or rights to some, or all, nonhuman animals propose), but is posited by the intuition that all of nature is fundamentally one and the same. So, for example, according to deep ecology the intrinsic value of a whale does not arise from the perceived comparable com­ plexity of its nervous system to that of humans, but is a consequence of the intuited unity of nature. If biospheric egalitarianism is taken at face value, its prescriptions seem wholly impracticable, as the well­ being of one form of life necessitates the killing of other forms of life for its sustenance. Therefore, deep ecologists

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attach a qualification: biospherical egalitarianism, in prin­ ciple. Deep ecology is not claiming that the interests of, for example, humans may never override the interests of nonhuman nature. Rather, deep ecology is rejecting what it sees as the anthropocentric assumption that human interests always win out. Naess suggests a possible for­ mulation for decision making when interests conflict: ‘‘A vital need of the non-human living being A overrides a peripheral interest of the human being B’’ (Naess (1984) Environmental Ethics 6: 267).

A ‘Platform’ for Deep Ecology Deep ecologists are keen to assert that the deep ecology movement is not founded on a single ‘dogma’; rather, they prefer to view it as a common ground, or ‘platform,’ that is shared by a diverse array of supporters. This is most relevant to the idea of deep ecology as a political move­ ment, but less essential to the idea that deep ecology is a philosophical method for grounding one’s concern for the environment in ecocentric metaphysics. In an effort to distinguish the movement of deep ecology from its phi­ losophical method, Naess and George Sessions proposed a platform that they consider basic to deep ecology, and that is given in Table 1. While heralding their theory as radically new, deep ecologists share the urge to paint an authentic patina of age. Usually ignoring the historical specificity of the favored sources, deep ecology seeks confirmation of its account in an eclectic collection of philosophies, reli­ gions, and belief systems, old and new, in an effort to build a broad base of support, and in some respects, present itself as the culmination of, and, perhaps, even successor to, an aged and universalistic lineage. The platform of deep ecology is supposed to represent the derived views that adherents of the many religions and

philosophies, who make up the supporters of the deep ecology movement, have in common.

The Philosophy of Deep Ecology The Distinctiveness of Deep Ecology It is possible to discern two other uses of the term ‘deep ecology’ besides the movement based on the previously described platform. There is a methodological sense where deep ecology represents the policy of asking ever-deeper questions about ecological relationships so as to arrive at the fundamental assumptions that inform them. It is not clear, however, that this practice is dis­ tinctive of deep ecology and that ecocentric policies will necessarily result. There is also a popular sense of deep ecology that expresses a general ecocentric orientation toward environmental matters giving rise to the platform of deep ecology. While this sense of deep ecology is characteristically opposed to anthropocentrism, there is nothing that differentiates it from other positions that, though opposing anthropocentrism, do not share deep ecology’s philosophical assumptions. Responding to this, the deep ecologist Warwick Fox has argued that what makes deep ecology a truly distinctive approach to environmentalism are these philosophical assumptions that guide it. While deep ecology often cites the findings of ecological science in support of its position, its premises are metaphysical, not scientific. Self-Realization: The Fundamental Norm of Deep Ecology As has been seen, deep ecology’s starting point is an intuition – the immediate, spontaneous experience of the unity of nature. It follows from this intuition that ‘all entities are constituted by their relationships’ – that there will come an increased ‘identification’ with the world of

Table 1 The platform of deep ecology 1. The well-being and flourishing of human and nonhuman life on Earth have value in themselves (synonyms: intrinsic value, inherent value). These values are independent of the usefulness of the nonhuman world for human purposes. 2. Richness and diversity of life-forms contribute to the realization of these values and are values in themselves. 3. Humans have no right to reduce this richness and diversity except to satisfy vital needs. 4. The flourishing of human life and cultures is compatible with a substantial decrease of the human population. The flourishing of nonhuman life requires such a decrease. 5. Present human interference with the nonhuman world is excessive, and the situation is rapidly worsening. 6. Policies must therefore be changed. These policies affect basic economic, technological, and ideological structures. The resulting state of affairs will be deeply different from those of the present. 7. The ideological change is mainly that of appreciating life quality (dwelling in situations of inherent value) rather than adhering to an increasingly higher standard of living. There will be a profound awareness of the difference between big and great. 8. Those who subscribe to the foregoing points have an obligation directly and indirectly to try to implement the necessary changes. Source: Devall W and Sessions G (1985) Deep Ecology: Living as if Nature Mattered. Salt Lake City, UT: Gibbs M. Smith.

Deep Ecology

which we are a part. Enlightened by the intuition of nature’s oneness, deep ecologists suggest that the indivi­ dual self ‘matures’ as its interests become ever more identified with the interests of nature as a whole. In this way, realization of the potential of the individual self becomes inextricably bound up with the realization of the interests of the whole of nature, or what deep ecolo­ gists call the ‘expansive self.’ Thus we arrive at the ‘fundamental norm’ of deep ecology – self-realization. This enterprise consists of the process of formulating an identification of the personal self that goes beyond an identification of self-interest with the individual, or with the interests of other humans, to an identification of one’s interests with those of nature as a whole. In this way deep ecology seeks to harness self-interest by claiming that our inter­ ests are synonymous with those of the expansive self that is nature. In terms of our environmental obligations, the defense of nature becomes equivalent to the defense of ourselves, when our self is identified with the expansive self. Other ecological norms such as ‘diversity of life,’ ‘com­ plexity,’ and ‘symbiosis’ are, so deep ecologists contend, derived from this fundamental norm of self-realization to the extent that they contribute to the realization of this expansive self. It is this philosophical account that, it is claimed, makes deep ecology a distinctive approach to matters of the environment. Superseding Ethics? More recently Fox has attempted to refine Naess’s philo­ sophical sense of deep ecology by emphasizing what he considers to be its distinctive psychological theory. Fox maintains that the conclusions of deep ecology emerge from its theory of human psychology. Eager to dissociate deep ecology from environmental ethics, as it denotes approaches concerned with the discussion of values in nature, Fox contends that the moral prescriptions that arise from ethical theories of intrinsic value in nature are necessarily directed at a ‘narrow, atomistic, particlelike conception of self,’ whereas deep ecology relates its metaphysical vision to a ‘wide, expansive, field-like con­ ception of self.’ Consequently, according to this account of deep ecology, moral obligations founded on the recog­ nition of intrinsic value will be superseded by what Fox calls ‘natural inclination’: [Deep ecology is] not concerned with the question of the logical connection between the fact that we are intimately bound up with the world and the question of how we should behave, but rather with the psychological connec­ tion between this fact and our behaviour. [Deep ecologists’] analysis of the self is such that they consider that if one has a deep enough understanding of the way

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things are (that is, if one empathically incorporates the fact that we and all other entities are aspects of a single unfolding reality) then one will (as opposed to should) naturally be inclined to care for the unfolding of the world in all its aspects ... given a deep enough under­ standing of this fact, we can scarcely refrain from responding in this way (Fox (1990) Toward a Transpersonal Ecology, 247).

This philosophical sense of deep ecology avoids moral prescription and instead seeks to invite us to share its adherents’ ontological vision; having moved beyond our narrow, selfish interests by the acceptance of nature’s unity, acts of environmental concern will not be the result of moral obligation, but rather care for nature will ‘flow naturally’ with the realization that one’s self is but ‘an aspect of a single unfolding reality,’ thereby rendering ethics ‘superfluous.’ It is important to distinguish the philosophy of deep ecology from its aspect as a political manifesto. In this regard Naess starts with self-realization in a way so that individuality is found, not lost, through contemplation of the whole of life. Concern for the environment should never be opposed to concern for the self. This way there is no conflict between the human and the nonhuman worlds. Identification with the struggles of all life-forms is key, and with self-realization as the fundamental value, con­ cern for the whole Earth naturally follows. This train of thought builds upon an awareness that the very term ecology, used by scientists as a name for the branch of biology that studies the relationships between organisms and their habitats, has a social and political root, as it was coined in 1866 by Ernst Haeckel, who started with science to come to spiritual conclusions about the totalizing direction humanity was taking toward the end of the last millennium. Haeckel’s ideas were appropriated by the Nazis to build a sense of the unique value of ‘German’ nature and the people’s disciplined obligation to protect it, and this is a bugaboo that all attempts at ecological philosophizing since then have had to acknowledge and respond to with a sense of caution. This is why deep ecology should not be seen as totalizing, dogmatic, and exclusive. It is an open call to realize that the science of wholes and relationships in the biosphere involves a moral insistence on the preservation and admission of the intrinsic value of nature and the search for the best human place within it. Though his politics may be inspired by Spinoza and Gandhi, as a philosopher of science, Arne Naess has strong roots in the Vienna Circle analytical approaches of Carnap and Wittgenstein, with additional input from work in skepticism of the absolute certainty of science reminiscent of Paul Feyerabend, but his conclusions end up nearer to the phenomenologists, though de-emphasizing the human subject and speaking instead of a world of subjects human

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and nonhuman, whose identity develops only through interrelationship. This aspect of deep ecology is most fully developed in Abram. As philosophy of science, deep ecology questions science but inserts values into science, giving humanity a sense of humility in the face of nature. Beyond simply studying the relationship between organisms and their environment and making a place for humans in such a relationship, it encourages us to take a moral stand. We are but one of many species. It is a higher form of cultural evolution to show concern for other species, indeed, per­ haps an imperative of our biological heritage. In this way deep ecology has, in addition to its influ­ ence on environmental activists, inspired biologists to form the new discipline of conservation biology. Whereas previously biologists would be overly cautious and not feel comfortable calling biodiversity a good in itself, and rest content with studying it and collecting more data as the world’s species vanish at an alarming rate, the moral imperative of deep ecology insists that scientists use their discipline and information to help preserve what they are studying because it is of intrinsic value, in itself, to the planet of which we are a part.

Deep Ecology and Social Change The Call for a New ‘Religion’ Deep ecologists claim that the destruction of the natural world results from a modern anthropocentric conscious­ ness that mistakenly leads humanity to believe that nature is a resource for human ambition. Consequently, this degradation of nature will cease when we embrace a new consciousness that recognizes our spiritual oneness with all of nature. Thus the target of deep ecology’s social critique is the idea of anthropocentrism: ‘‘The target of the deep ecologists’ critique is not humans per se (i.e., a general class of social actors) but rather human­ centeredness (i.e., a legitimating ideology)’’ (Fox (1989) Environmental Ethics 11: 24). Deep ecologists seek to change humanity’s anthropo­ centric consciousness, which, they argue, drives our ambition to dominate and exploit nature, by inviting people to change their idea of nature by an experiential encounter with the fundamental oneness of reality. The idealism that informs this analysis leads deep ecologists to call for a new ‘religion’ or ‘spirituality’ that teaches a holistic, harmonious account of the human nature rela­ tionship. Social change, it seems, is to be achieved by the missionary work of deep ecologists with their invitation to spiritual enlightenment. Unlike, for example, a Marxian account that would identify the project of the domination and exploitation of nature with the economic goals of a capitalist class, deep ecology claims that environmental destruction results from a wayward psychological impulse

of humanity as a whole. Subsequently the project is not primarily one of political and economic change, but one of psychological or spiritual reorientation; deep ecology seeks to exorcise the ideas of anthropocentrism, produc­ tion, consumption, and so on, from the collective human consciousness. Nature’s Prescriptive Force According to deep ecologists, the appropriate social beha­ vior is prescribed by an understanding of nature’s own values. They espouse and promote a new paradigm summed up in such slogans and principles as ‘nature knows best’ and ‘change to a natural system brought about by human activity is likely to be detrimental to such a system.’ This normative code asserts nature as the ethical authority, with the study of nature’s interactions providing the source of values and prescriptions. These prescriptions fall into three general classes whereby the appropriate attitude toward nature that humanity ought to adopt is one of awe, reverence, and humility; the appropriate goal of humanity is to realize a harmonious relationship with nature that will result in the least impact on ecological systems; and the appropriate goal for human inquiry is to discover the values of nature so that human­ ity may learn how best to pursue an existence that involves the minimum intervention in ecological systems. Despite the assurances of many deep ecologists, one only needs to be acquainted with a few examples of their literature to see that much of their theory leans heavily on the narratives of ecological science such as ‘natural stabi­ lity’ and ‘carrying capacities.’ Deep ecologists frequently recruit the vocabulary of ecological science; their models of nature often reflect those used by ecology, and in defense of their conclusions deep ecologists regularly cite the findings of this science. The problem with this practice is that deep ecology does not make clear how norms such as ‘live in harmony with nature’ are to be interpreted, nor does it seem to take account of the often transitory and contingent nature of scientific principles and models. Deep Ecology in Practice and Politics Deep ecology’s account of nature’s normative force is also utilized as a political program. Natural values are to be applied to human culture such that thinking about social organization is to be conducted, as Kirkpatrick Sale advises, in ‘biotic’ rather than ‘social’ terms. This has led deep ecologists to claim a ‘neutral, privileged’ ground outside of human concerns. Where in early history, human conduct was ruled by nature through nonhuman beings such as elementals, spirits, and demons and natural locations such as oracles, in deep ecology nature’s prescriptive force is transmitted by the pseudo-scientific vocabulary of ‘natural

Deep Ecology

harmony,’ ‘stability,’ ‘diversity,’ and so on. While modern religion and emergent capitalism secularized and ‘despir­ itualized’ nature, allowing for its wholesale exploitation, deep ecology aims to resuscitate the veneration of a spiritualized nature. By importing nature’s normative force into human society, deep ecology seeks to subsume the human world into the natural world. The understanding of the essentially destructive char­ acter of human activity and the belief that ‘nature knows best’ have lead some deep ecologists to make explicitly misanthropic remarks. For example, in his theory of Gaia, J. E. Lovelock argues that our humanist concerns about the poor of the inner cities or the third world, and our near-obscene obsessions with death, suffering, and pain as if these were evil in themselves – these thoughts divert the mind from our gross and excessive domination of the natural world. Other campaigning groups have offered an account of famine as ‘nature seeking its own balance.’ Understood as a natural phenomenon, in this account, famine is not only inevitable but also good, insofar as society’s continued well-being depends on our nonderivation from estab­ lished natural conditions. Publicly the theorists of deep ecology have distanced themselves from these direct declarations of some mem­ bers of its campaigning factions, but nevertheless they do seem to find support in the theory of deep ecology. Deep ecology’s psychological or spiritual solution to the pro­ blem of environmental degradation requires a ‘psychological maturity’ of the self, that is, ‘a deep under­ standing of the way things are.’ This deep understanding will prescribe (though deep ecologists prefer the nonfor­ ceful ‘incline’) our behavior as that of acceptance and accommodation to the ‘will of Nature,’ just such an exor­ cism of social activity from history, leading to its subsequent naturalization, is a stated aim of deep ecology. For as Fox informs us, ‘‘deep ecologists have been attempting to get people to see that historical and evolu­ tionary outcomes represent ‘the way things happen’ to have turned out - nothing more’’ (1989: 24). It is deep ecology’s contention that there is a pervasive basic striving implicit in nature: the urge toward self-realization. It is nature’s creative purpose to travel toward the aimed-for perfection of self-realization; thus pur­ pose, creativity, and historical momentum are naturalized, becoming the possession of nature as the Absolute Subject. In this way deep ecology’s conception of nature underwrites a moral economy that cites the appropriate social behavior as consisting of a retreat of human activity from the realm of ‘wild’ nature (this is often summed up by those deep ecologists influenced by the philosophy of Heidegger in the slogan, ‘let it be’). This normative vision has led deep ecologists to support demands for the international designation of wilderness preserves, though these have been met with hostility by many indigenous peoples whose

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homelands have been subject to the attention of these projects and who have been displaced and dispossessed as a result.

Deep Ecology’s Legacy The application of natural values to human society has led deep ecologists to claim a ‘neutral, privileged’ ground outside of human concerns, but its critics have argued that this depoliticization of the environmental crisis, and the move toward psychological analysis rather than class analysis of its causes, results in deep ecology being blind to matters of social and environmental justice. Romanticized as a common ideal for all, deep ecology’s project of spiritual rehabilitation may obscure the social relations, founded on economic class, gender, and race, which, it can be argued, play a considerable part in deter­ mining the real character of environmental despoliation and the distribution of the detrimental impacts of this process, such as pollution, which studies by environmen­ tal justice groups have shown to be distributed disproportionately in society. Although deep ecology is often characterized as a radical movement in environmental philosophy whose heyday was primarily in the 1980s to early 1990s, one can chart an alternate track of its influence that begins with Vice President Al Gore announcing in his 1989 book Earth in the Balance that ‘‘we must change the fundamental values at the heart of our civilization’’ if we are to ever live better in relation to nature. This is the fundamental insight of deep ecology, and he took it into mainstream politics much further than the platform of deep ecology ever did, not during his years in elected office, but in his activism on climate change that has intensified in the first decade of the twenty-first century, and continues as the world’s nations try to figure out a way to battle global warming that is respectful of the entire human population’s need to think of its use of energy resources and its relation to nature in a radically different way. Caring for the intrinsic value of nature and realizing our full human potential through an expanded sense of self-realization remain issues of deepest relevance and concern to global environmental thinking. See also: Animal Rights; Anthropocentrism; Biocentrism; Biodiversity; Development Issues, Environmental; Environmental Justice; Intrinsic and Instrumental Value; Speciesism.

Further Reading Abram D (1996) The Spell of the Sensuous: Perception and Language in a More-than-Human World. New York: Pantheon. Brennan A and Witoszek N (eds.) (1999) Philosophical Diagloues: Arne Naess and the Progress of Ecophilosophy. Lanham, MD: Rowman & Littlefield.

744 Deep Ecology Devall B and Sessions G (1985) Deep Ecology: Living as if Nature Mattered. Salt Lake City, UT: Peregrine Smith Books. Fox W (1989) Transpersonal Ecology: Developing New Foundations or Environmentalism. Boston/London: Shambala. Gore A (1989) Earth in the Balance. Boston, MA: Houghton-Mifflin. Gore A (2006) An Inconvenient Truth. Emmaus, PA: Rodale. Guha R (1989) Radical American environmentalism and wilderness preservation: A third world critique. Environmental Ethics 11: 71–83. Katz E, Light A, and Rothenberg D (eds.) (1998) Critical Essays in Deep Ecology. Totowa, NJ: Rowman & Littlefield. List PC (ed.) (1993) Radical Environmentalism: Philosophy and Tactics. Belmont, CA: Wadsworth. Luke T (1988) The dreams of deep ecology. Telos 76: 65–92. Naess A (1973) The shallow and deep, long-range ecology movement: A summary. Inquiry 16: 95–100. Naess A (1989) Ecology, Community and Lifestyle, Rothenberg D (trans.). Cambridge: Cambridge University Press. Naess A (2005) The Selected Works of Arne Naess, Glasser H (ed.). Dordrecht: Kluwer. Pepper D (1996) Modem Environmentalism: An Introduction. London: Routledge. Rothenberg D (1992) Is It Painful To Think? Conversations with Arne Naess. Minneapolis: University of Minnesota Press. Sylvan R (1985) A critique of deep ecology. Radical Philosophy 40/41: 2–22.

Biographical Sketch David Rothenberg is professor of philosophy at the New Jersey Institute of Technology, where he specializes on environmental philosophy and the aesthetics of the relationship between humanity and nature. He is the author of Why Birds Sing (Basic Books and Penguin UK, 2005), also published in Italy, Spain, Taiwan, China, Korea, and Germany, and turned into a featurelength documentary Why Birds Sing by Endemol UK for BBC4 in June, 2007. Rothenberg is also the author of Sudden Music: Improvisation, Art, Nature (Georgia, 2002), Blue Cliff Record: Zen Echoes (Codhill Press, 2001), Hand’s End: Technology and the Limits of Nature (California, 1993), and Always the Mountains (Georgia, 2003). His most recent book is Thousand Mile Song: Whale Music in a Sea of Sound (Basic Books, 2008). He was the editor of the MIT Press journal Terra Nova: Nature and Culture, and edited the various Terra Nova books based on the journal, including The Book of Music and Nature (Wesleyan, 2001) and Writing the World: On Globalization (MIT, 2005).

Defenses at Criminal Law S Dimock, York University, Toronto, ON, Canada ª 2012 Elsevier Inc. All rights reserved.

Glossary Automatism A state in which a person’s body is moving but is not under control of a conscious and voluntary mind (e.g., sleepwalking). Criminal offense Criminal offenses consist of a connected actus reus (a prohibited act, result, or omission) and mens rea (a mental component of fault for the prohibited act). Defenses Every criminal code or system of penal law includes defenses to a criminal charge, which relieve persons of criminal liability, including exemptions, justifications, and excuses. Double jeopardy Persons are protected against being tried for a second or subsequent time for a crime they have been acquitted of. Duress A situation in which one person compels another to engage in criminal conduct by threatening him (or a third party connected to him) with serious harm unless he commits the crime; coercion by human threat. Entrapment The inducement to crime by state officials (usually undercover police officers) through serious and persistent pressure, in circumstances in which the person would not have committed the crime but for the pressure from the state actor. Insanity A mental defect produced by a disease of the mind, which renders a person incapable of understanding the nature or consequences of his or her action, or that is morally wrong; it may also include compulsions and irresistible impulses caused by mental illness. Intoxication Impairment caused by the ingestion of intoxicants, alcohol or drugs, legal or illegal; may be voluntary or involuntary.

Introduction A crime is any act that contravenes the provisions of the criminal law within a recognized legal jurisdiction – an act that violates a norm or rule of a criminal or penal code of law. Through the use of criminal law, societies condemn acts they find intolerable and express their willingness to impose significant penalties to deter such conduct. By making some acts criminal, and attaching the threat of punishment to their performance, we seek to prevent such acts or at least to reduce their number.

Legal punishment The intentional imposition of an avoidable loss by legal authorities upon an offender for an offense. Mitigation A consideration that reduces the severity of the punishment to which an accused is liable after being convicted of a criminal offense. Necessity A situation in which a person is compelled by circumstances to commit a criminal offense to avoid an even worse outcome; often called the defense of ‘lesser evils.’ Negligence An objective fault element for crimes; a failure to act reasonably or to appreciate the risks of harm created by one’s actions, in circumstances in which a reasonable person would have appreciated the risk. Provocation A partial defense reducing murder to manslaughter when an accused kills a person who has provoked him or her to violence by such serious insults or provocative conduct that any reasonable person might lose control in the circumstances. Self-defense An action that inflicts bodily harm or even death on an unlawful attacker in order to prevent the person acting in self-defense from suffering grievous bodily harm or death at the hand of the attacker, where the perception of the risk of harm is reasonable and there is no reasonable avenue of escape. Sentence The penalty or loss imposed upon an offender after a verdict of guilty to a criminal charge has been issued by a court of law. Tort (or civil) law The branch of law under which private individuals may recover compensation for damages or harms negligently caused by other individuals.

Criminal law should be used only to prevent seriously harmful conduct: violence, force, and fraud and acts that undermine the conditions that make peaceful and mutually beneficial social cooperation possible. Not all kinds of wrongs should be dealt with through criminal law, but only the most serious – the kinds that cannot be tolerated in a peaceful society and cannot be effectively regulated using other legal or social tools. Criminal laws protect vital public institutions and individuals from wrongful harm at the hands of others. By punishing those who commit crimes, we condemn behavior that

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violates the important interests and values protected by criminal law. Given the stigma attached to criminal conviction and the serious harmfulness of criminal punishment, it is recognized that there are limits to criminal law. Not every kind of conduct that individuals might find distasteful or otherwise objectionable should be prohibited using criminal law. Only seriously harmful conduct should be criminalized. Even if society is justified in using criminal law to deter some conduct, however, it is further necessary that it only be enforced against those who are responsible for their criminal wrongdoing. We should only label as criminals, and punish, persons who are responsible for their crimes. The issue of criminal liability is our primary focus. This article addresses the many kinds of situations in which individuals are deemed not criminally responsible or who have a defense to the offense with which they have been charged that renders them free from criminal liability. To understand criminal liability, consider again the kind of wrong that crime involves. Criminal wrongdoing is a violation of the rules that prohibit violence, force, and fraud and maintain the conditions of social cooperation. Crime imposes significant harms on, and violates the rights of, victims; crime is seriously wrongful. In order to act wrongfully and not just harmfully, however, the criminal must in some sense have acted intentionally in bringing about the harm and violating the rights constituting the crime. The distinction between harms and wrongs is important because a person might harm another in any number of ways, doing thereby what would constitute the actus reus of some criminal offense. Suppose, for example, that I trip while walking down the stairs, thereby falling and crashing into you; I am safely and soberly driving home on icy roads and a child jumps in front of my car, whom I hit and injure; I serve a friend seafood to which, unbeknownst to either of us, she is allergic and she dies; a person puts a gun to my head and credibly threatens to kill me unless I assist him in robbing a store and so I help rob the store; I drop someone else’s very expensive vase and break it, but I am only 6 years old; I am innocently going about my business and another person attacks me, credibly threatening to kill me, and I kill the attacker to save my life; I try to assassinate my Premier because I believe he is an alien sent to Earth to kill all Canadians; or I stab my sister with a knife while I am sleepwalking. In all these cases, I have harmed another and performed the actus reus of some criminal offense: assault, homicide, robbery or aiding a crime, destruction of property, and attempted murder. But surely in none of them should I be branded a criminal, with the social stigma and serious consequences that would have on my future opportunities, and punished. The examples given cover four different kinds of cases, however, and the reasons why it

would be wrong to treat my behavior as criminal differ among them. We examine such reasons in this article.

Elements of Criminal Offenses Criminal offenses consist of an actus reus (a prohibited act, result, or omission) and mens rea (a mental component of fault for the prohibited act), with some relation between them. The required relation between the prohibited act and fault element is typically called contemporaneity, which requires that the mental element and the act occur concurrently in time and that the mental element be directed at the prohibited act. Thus, for example, assault consists of the act of applying unlawful force against another, but that force must be applied knowingly or intentionally. What the person must know or intend is that he or she is applying unlawful force to the other. The mental element must be directed to the act itself. Typically, to commit a crime, one must not only perform a prohibited act or bring about a prohibited result but also do so with a particular mental state, such as knowledge, intention, malice, recklessness, or willful blindness. Recklessness involves adverting to, being aware of, or foreseeing the risk that one’s conduct may produce or constitute a prohibited result and proceeding despite that risk. Most serious crimes have at least one subjective mens rea condition. A subjective fault condition concerns the mental state of the accused at the time the actus reus was committed: what the actual defendant knew, foresaw, or intended. Subjective fault concerns what was in the mind of the accused when acting. Only if the accused knew or intended or foresaw that his actions would or might bring about the actus reus of a crime is he guilty of committing that crime. Generally, crimes cannot be committed accidentally or inadvertently. The requirement of subjective mens rea or subjective fault opens up a range of possible defenses to a criminal charge – defenses that demonstrate that the accused lacked the required fault element at the time of acting. Criminal offenses can only be committed by persons acting consciously and in voluntary control of their bodies. This most basic requirement of criminal liability, the requirement of voluntariness, also provides a basis for a number of defenses to a criminal charge. A person who performs what would otherwise be a prohibited act but does so unconsciously or without bodily control over his movements will have a defense to the charge that relieves him of liability for the resulting act. The requirement of voluntariness reflects our belief that people should be held criminally liable and blamed only for harms they cause through an exercise of their own free will. Although the voluntariness requirement is related to mens rea (a person cannot act unconsciously and yet knowingly

Defenses at Criminal Law

or intentionally) and to the actus reus (a person who falls down a flight of stairs could hardly be described as acting at all), it is a distinct requirement of criminal liability that applies to all kinds of crimes, regardless of what fault element is required and what kind of act is in question. Persons must also have a certain status to be criminally liable for their conduct: They must be responsible agents. The exact conditions of criminal responsibility are a matter of dispute, but the general idea is both clear and sound. We do not hold storms or cows criminally responsible even if they cause serious harm to individuals. Why? Because storms and cows are not responsible agents. Human beings, by contrast, are generally responsible agents. They are appropriate targets of reactive attitudes such as blame and resentment, and they may be called to answer for their conduct when that conduct harms others. What makes human beings responsible agents is their possession of a complex set of capacities – emotional, intellectual, social, moral, volitional, and psychological. The ability to appreciate the nature of one’s conduct and its consequences, an awareness of the interests of others, an ability to recognize the reasons behind criminal prohibitions and to respond to the values the criminal law protects, and the ability to control one’s conduct are all important capacities in understanding why we are responsible agents. Our ability to choose how to act, to restrain our emotions, to regulate our conduct by social norms, to assess risk, and to conform to the law are all vital to our being responsible. However, the capacities that make us responsible are enjoyed as a matter of degree, more or less, and are not well-developed in every person. Some people may experience emotional, volitional, and intellectual impairment that diminishes their capacities, perhaps below a level at which it is fair to hold them responsible for their conduct. Various forms of mental illness may operate this way, as might compulsions and phobias. Moreover, these various capacities develop slowly between birth and adulthood. Very young children simply do not have the capacities needed to be responsible for what they do; they are not fit to answer to society for their conduct, and so they should not be held criminally responsible for what they do. If young children inflict harm on others, they must receive education and instruction, not punishment. Young children cannot properly be held accountable for actions that contravene the law because they lack the intellectual and emotional maturity needed to form the required intent to violate the law and to know the nature and consequences of their actions. In the conditions of responsibility itself we find additional grounds of legal defense: youth, insanity, and diminished capacity. Connected to the basic status defenses, such as insanity and youth, is another important class of defenses that also arise out of the status of individuals, although in this case, particular individuals. This class includes special

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permissions or immunities from prosecution given to particular individuals because of some social or political role they occupy. The defenses are necessary for the proper performance of those roles, and the roles are socially valued. Thus, for example, parents are allowed to administer correction to their children that involves spanking, even though spanking would otherwise constitute assault. Police officers, fire officials, physicians, and others may perform acts that would otherwise be criminal, such as breaking and entering a dwelling place without the owner’s permission or administering medical treatment on an unconscious person without consent. Elected politicians are protected from prosecution under defamation laws if they say what would otherwise be defamatory about a fellow member of Parliament in the House of Commons or equivalent legislature. Likewise, most countries recognize the principle of diplomatic immunity, which protects foreign diplomats from prosecution in countries where they perform diplomatic duties, even if they commit what would otherwise be criminal offenses. In all of these cases, specific exceptions to rules of general application are laid out, and the exceptions give rise to defenses that protect those to whom they apply from criminal liability. Finally, a range of defenses under criminal law are required to prevent the legal system from being implicated in or perpetrating wrongdoing. These are procedural defenses, sometimes codified in the criminal law directly, such as the defense of double jeopardy. This rule protects individuals from being tried more than once for the same crime. Generally, if a person has been acquitted of a crime, he or she cannot be retried for the same crime, even if the police or prosecution gather additional information that would make conviction at a second or subsequent trial more likely. Similarly, a person should not be convicted of offenses that he or she was pressured by state officials into committing. If a person is pressured into committing a crime that she would not otherwise commit, by state officials, she has the defense of entrapment. Finally, there has developed a defense of officially induced mistake of law. Although mistake of law or ignorance of the law is generally not a defense, it has been recognized that a person may have relied on official advice as to the legality of some activity. If the advice turns out to be mistaken, the person performs what is a legally prohibited act. Yet if the person sought advice from an official responsible for administering the law in question, the advice was reasonable on its face, and the person relied on it in determining how to act, it would seem unjust to hold him responsible for the resulting crime. Various criminal law procedures and rules of evidence give rise to procedural defenses – defenses that must be recognized if the criminal law is to be administered justly and fairly.

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Nonrecognition of these procedural defenses would implicate the state in wrongdoing or in performative contradictions. Consider double jeopardy as an example involving performative contradiction. States claim a monopoly on power within their jurisdictions, and in exchange they promise to provide authoritative and final resolution of any disputes between members of the state. Once the top court in a jurisdiction has ruled on a matter, it must be taken to be decisively and finally resolved, at least from a legal standpoint. Given that trial courts, in which a criminal matter is heard by a judge or a judge and jury, are the final arbiter of matters of fact, criminal courts are to provide final resolution of matters of criminal guilt or innocence. If a court rules that a person is not guilty, that is the end of the matter. However, if the state were then permitted to retry the accused to get a different result, then that would involve the court saying that it is not the final arbiter of matters of fact. The state would claim both that it provides final and decisive answers to questions of guilt and, in re-trying a case, that it does not. To say that a person can be tried again for the same crime suggests that the determinations of the court on matters of guilt are not final or decisive. This is a performative contradiction. Similarly, in the case of entrapment, should a person be convicted of a criminal offense that he or she would not have performed but for pressure from state officials to do so, the state would be engaged in or implicated in wrongdoing. At the very least, the state officials would be parties to the crime, having aided or abetted it, encouraged it or counseled it, etc. All of these ways of participating in crimes are criminal. It would bring criminal justice into disrepute if state actors could encourage crime to the point of bringing people to engage in criminal activities they would not have engaged in without that encouragement and then hold the people involved solely responsible for the resulting offenses. This is also the case for officially induced legal error. Here, the individual took reasonable steps to ensure that he conformed to the law by seeking advice about the law from a relevant legal official. He then relied on that advice in choosing how to act. However, because the advice was mistaken, the conduct he engaged in was actually illegal. Should he be held liable to punishment for so acting, the state would be implicated in his wrongdoing; he would not have engaged in it, after all, but for the advice he received from state officials. Where entrapment and officially induced error are recognized, they often function not to absolve the person for his legal wrongdoing but as a check to punishment. They result in a stay of the proceedings rather than an acquittal because the state lacks the moral authority to hold the person responsible for the wrong he has done, given its involvement in the wrongdoing. We might include diplomatic immunity within this general class of defenses needed to prevent state

wrongdoing, when the immunity arises from international agreements between states. If two states have entered into an agreement or treaty not to prosecute each others’ diplomatic staff while engaged in the others’ country on state business, then to allow prosecution would be a violation of international treaty obligations and therefore wrong.

Criminal Defenses It might be thought that a criminal defense is any consideration that defeats a criminal charge and so relieves the accused of criminal liability. In such a broad view, having an alibi would be a defense, insofar as having an alibi precludes conviction of the offense charged. This is not typically what legal theorists and philosophers of law mean when they speak of criminal defenses, however. Rather, they have in mind a narrower set of considerations that any just criminal law system will recognize as grounds for withholding criminal liability. However, many criminal defenses do operate in the first way described; they operate to raise a reasonable doubt as to whether the accused actually committed the crime by raising a reasonable doubt as to at least one element of the crime. Defenses negating mens rea operate this way. We examine them first and then discuss defenses that operate very differently, either to defeat responsibility altogether or to block the normal transition from proof of all the essential elements of the crime to a finding of liability. Defenses Negating Mens Rea The most common reason why we should not hold a person responsible for bringing about the actus reus of a crime is because he or she did so without the required mens rea. I am not guilty of assault if I fall and crash into another or accidentally injure a child with my car, and I am not guilty of murder when I give my friend a shrimp that leads to her death. This is so even though applying force to and bringing about the death of another person are the actus reus for assault and homicide, respectively. I brought about the prohibited result but without fault, without the mental conditions necessary for the complete crime. I did not apply force intending to do so, or knowing that my action might lead to that result, and I did not plan to bring about my friend’s death, intend her death, or foresee it as a possible outcome of my actions. I can bring about the actus reus of an offense without mens rea accidentally or because of some reasonable mistaken belief about the facts and circumstances in which I am acting. However, I have not committed a crime because an essential element of the crime, namely mens rea, is absent. Many criminal law defenses operate to negate an

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essential element of the offense, usually mens rea. Accident and mistake of fact are common examples. We require mens rea because we do not think people should be condemned and punished unless they acted with fault. Fault for criminal activity transforms it from harm into wrongdoing. Crimes are not committed accidentally, mistakenly, or even carelessly, although we may inflict harm in these ways; crimes are committed knowingly, intentionally, or recklessly. It is because criminals knowingly or intentionally inflict harms on others, violate their rights, or act to undermine the conditions of social peace and cooperation that society is entitled to punish them. By their actions, they deny the equality of persons and the rights on which social peace and cooperation are founded, taking a greater liberty than they would grant to others. Through punishment, society reestablishes its commitment to peace and cooperation and the equality of persons. However, unless a person has intentionally or recklessly violated the rights of others or transgressed the norms of peaceful society, this general justification for punishment is absent and so punishing the person would be unjust. Justifications The previous examples also include cases of justification. Persons who are justified in violating a prohibitory norm of criminal law are responsible for their actions and have completed the full crime, including actus reus and mens rea. Thus, justifications are a different kind of defense than those negating mens rea. Nonetheless, we do not treat their actions as criminal or impose punishment. In the case of justifications, we do not punish because we think the person’s action, although satisfying the conditions of a criminal offense, was not wrong in the circumstances. Injuring or even killing another in self-defense is a justified action. The person knows her actions may lead to the death of her attacker, perhaps even intends to bring about the attacker’s death, and does so, thus satisfying the conditions for murder, yet the killing was justified. Selfdefense is a paradigmatic example of a justified action that would otherwise be criminally wrong. Self-defense, along with defense of third parties and defense of property, is explicitly codified as a defense in many criminal codes. Many countries treat acting from necessity as justified as well, on the grounds that a person who acts under necessity chooses ‘the lesser evil.’ Thus, an alpinist lost in a blizzard who breaks into a cabin and burns some of the furniture for heat commits what would otherwise be the crimes of break and enter and destruction of property. However, because this was a lesser evil than freezing to death, he was justified. He may owe the cabin owner compensation, but he will not be criminally punished for his act.

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The rationale for justifications such as self-defense and necessity is typically described in utilitarian terms: In the circumstances, it is better, all things considered, that the person took the action she did than obey the law. It is better that an innocent person defends herself or others from unlawful aggression, even if defending herself requires inflicting harm or death on her attacker; better that a lost skier break into a cabin than freeze to death on the mountain.

Excuses Many jurisdictions, but not all, treat necessity as a justification. In Canada, necessity is not treated as a justification but, rather, as an excuse, along with duress. Duress involves situations in which a person commits what would otherwise be a criminal offense in order to avoid a credible threat of serious harm from another person. This is the ‘gun to the head’ situation, wherein I help rob the store to avoid getting shot. Canadian courts consider necessity and duress as parallel situations, the difference being the source of the threat: natural circumstances in the case of necessity, such as a storm or fire, and humanmade threats in the case of duress. In both, criminal actions undertaken to avoid the threatened harm may be excused because although what the person did was wrong, he is not blameworthy for doing it under the terrible circumstances he faced. The impulse to excuse is humanitarian, recognizing that persons may find themselves in circumstances, through no fault of their own, in which compliance with the law would be too difficult to expect of a reasonable person. We cannot expect persons to freeze to death in order to respect the property rights of others nor allow themselves to be killed or seriously injured by a person coercing them. Excused conduct is wrong, but the person committing the act is not deemed blameworthy because he acted reasonably given the circumstances.

Exemptions The cases considered thus far concern the actions of responsible agents, who are answerable to the criminal law. Those who act with justification or excuse take responsibility for their actions but insist such actions are not properly punishable because they do not show disregard for the rights of others or the values the criminal law protects. A person arguing that she has not committed a crime because she did not inflict harm intentionally, knowingly, or recklessly likewise does not deny her status as a responsible actor answerable to the law. Defenses that exempt a person from criminal responsibility, however, concern agents who are not criminally responsible because some personal characteristic makes them not

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properly answerable for their behavior to the state whose laws they have violated. These are exemptions. Some exemptions are a product of law itself, such as that enjoyed by foreign officials under diplomatic immunity. Others involve persons who are exempt from criminal liability because they are not responsible agents. This class includes persons under the minimum age for criminal liability and the legally insane. Young children cannot commit any crime, and the insane cannot be held responsible for harms they cause as a result of their mental defect. Likewise, persons acting in a state of automatism, while sleepwalking, in a disassociative state caused by a severe blow to the head or psychological trauma, without conscious control over their bodily motions, and without the connection between their actions and a controlling mind making their conduct voluntary cannot be held responsible for what they do. We might say such persons do not ‘act’ because action presupposes voluntary control, in which case they would not have performed the actus reus of any crime, or we might say they lack mens rea because there is nothing about their behavior that they know or intend or foresee. Some countries treat automatism in these ways. However, we might just say that such persons lack the basic conditions of agency and so cannot be criminally responsible, just like others who are exempt from criminal liability. Intoxication Courts have always had a difficult time dealing with intoxicated offenders. On the one hand, intoxication seems clearly relevant to the assessment of mens rea because it might affect the mental states of an accused. What a person knew, foresaw, or anticipated as a result of her action might be influenced by her intoxication, depending on the severity of the impairment resulting from it. Thus, a person might not have the mens rea for the crime charged because of intoxication and so should have a defense negating mens rea. On the other hand, judges are not comfortable with the idea that a person should escape liability because of her own reckless conduct in becoming intoxicated. Self-induced or voluntary conduct should not function as an excuse, and certainly does not transform wrongful action into permissible conduct, and so it cannot be a justification either. Different legal jurisdictions have dealt with intoxication differently, but most have imposed rules (either judge-made common law rules or by statute) that function to ensure that persons who commit crimes while intoxicated do not have a defense for their conduct. They often treat self-induced intoxication as an alternative ground of fault, sufficient to establish liability for bringing about an actus reus while intoxicated. By contrast, most jurisdictions accept that involuntary intoxication functions as a complete excuse. If a person

receives a drug from her dentist, is slipped an intoxicant by another person without her knowledge, or becomes intoxicated as a result of taking a prescription containing no warnings of the risk of impairment, she will have an excuse to any crime she might commit while intoxicated. Partial Excuses The defenses discussed previously function as complete defenses: When the conditions of the defenses are met, they operate to wholly block the judgment that the accused was responsible for the act or to block the normal transition from responsibility for harm to liability to punishment for it. Other defenses are only partial: They reduce the degree of responsibility and blameworthiness of an offender without relieving him or her of liability altogether. Provocation functions as a partial excuse, reducing murder to manslaughter. If a person kills in the heat of a sudden and immediate passion, prompted by the provocation of his victim, he will be convicted of the lesser charge of manslaughter rather than murder. The provocation must be such that a reasonable person in the circumstances would have been provoked to violence by the provocative act or insult. Originally developed as a response to husbands who killed their wives or their paramours when confronted with an act of infidelity, the defense is now available for anyone who reacts with deadly violence to serious provocation. Many jurisdictions also have a partial excuse of diminished capacity. This defense recognizes that the capacities that constitute responsible agency are enjoyed by different people at different levels. A person might face serious difficulties conforming to the law because he has significantly diminished cognitive, emotional, or volitional capacities. A person may suffer from serious mental illness or impairment that does not reach the level of legal insanity but that nonetheless reduces his ability to conform to the law. When this is so, he may have a defense of diminished capacity for crimes he commits. This defense will not relieve him entirely of liability for his offense, but it may be treated as a formal mitigating factor that reduces either the charge to which he is exposed or the severity of the sentence that is imposed.

The Rationale of Criminal Defenses Different theories have been offered to explain and justify the defenses at criminal law. Whether a single theory can account for all the different kinds of defenses is a matter of dispute among legal theorists. At the very least, the procedural defenses must be separated from the others because their rationale is clearly different from the others. It is not the case that

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persons enjoying diplomatic immunity, or those protected from conviction by the doctrines of double jeopardy, officially induced legal error, or entrapment, need be less than fully responsible agents. Nor are their actions permissible or excusable in the circumstances in which they were performed. They may commit the offense in question with the full mens rea, through a conscious and voluntary act. Yet these procedural defenses are politically important to ensure that the state, through its system of criminal justice, is not itself implicated in or a perpetrator of wrongdoing. There may be good political reasons for exempting foreign diplomats from criminal liability, thereby ensuring that they are not answerable to the host country for any wrongdoing they engage in but, rather, leaving it to their home country to deal with any bad behavior they engage in while representing it. If the countries involved have agreed to such a system in international treaties, the host country must abide by the terms of its agreements. This is also the case with double jeopardy, officially induced mistake of law, and entrapment, as explained previously. The rationale of such defenses is explicitly political. They are necessary to ensure the just administration of criminal law and the moral right of the state to call to account those who engage in criminal conduct. The other criminal law defenses, by contrast, have as their rationale the protection of those who are ‘morally innocent’ from criminal liability. In the case of mens rea defenses, the person has not completed the crime and so has not engaged in criminal wrongdoing. In the case of justifications, what the person did was not wrong in the circumstances. When acting under excusing conditions, it would be unreasonable to hold the person to strict adherence to the law. When a person is not in conscious and voluntary control of his actions, he cannot bring his conduct into conformity with the law. Also, when a person lacks the capacities needed to appreciate the nature or consequences of his actions, or know that they are wrong, he again cannot be held to be morally blameworthy for his failure to comply with the law’s demands. Some theorists think that we recognize the defenses we do because we are only entitled to call people to account for conduct that they choose freely to engage in. Only freely chosen actions can be the basis of criminal liability. This view (called the choice theory) denies that people can be criminally responsible for harms they inflict negligently and thoughtlessly. Freely choosing to inflict harm on others or to violate their rights is the most culpable form of wrongdoing, and it warrants the most severe punishment; only this kind of intentional, purposeful, or reckless choice to flout the values protected by the criminal law can be the basis of liability. Alternatively, proponents of the character theory think that we are responsible for actions that reflect our settled

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character. Generally, we can determine what a person’s character is, what sort of person he is, and what virtues or vices he has from his conduct. From the fact that a person engages in dishonest conduct, for example, we can usually infer that he is a dishonest person. However, in the cases involving the defenses, the normal transition from what a person does to the nature of his character is blocked. From the fact that a person committed an assault while sleepwalking, or in self-defense, for example, we cannot infer that he is a violent person or that he has the character flaw of disregard for the interests of others. It is only actions that manifest a morally corrupt character that deserves criminal sanction. Specifically, only conduct that is motivated by the kinds of character flaws the criminal law ought to concern itself with – cruelty, dishonesty, disregard for the rights and interests of others, etc. – should be punished. When a person acts with a justification or an excuse, or without the mental fault element of the crime, his action does not thereby demonstrate the kind of character flaw the law punishes when it is manifested in criminal conduct. Other theorists think that the best explanation of our defenses is that we should hold people criminally responsible for violating the law only when they have a genuine opportunity to meet its expectations. This (opportunity) theory is closely related to another, whose proponents think we should only hold those who have the capacities to conform to the law responsible for failures to do so (capacity theory). The basic idea is the same in each version: We can only legitimately hold people accountable for harms they had a reasonable opportunity and the capacity to avoid. If either circumstances or personal characteristics make it impossible or unreasonably difficult for a person to meet the expectations set by law, we cannot blame him or her for failing to meet its standards. Each of these theories provides a rationale for the defenses we recognize at criminal law more or less successfully and comprehensively. Each has significant explanatory power and highlights important strands of thought in legal practice. Whether they can be reconciled into a unified theory of criminal responsibility or not is a matter of controversy among legal theorists.

Should New Defenses Be Accepted? For all the defenses currently recognized at criminal law, they were at one time controversial and novel. Most developed through common law, by judges doing justice in individual cases. Thus, it is always an open question whether some newly proposed defense should be accepted because it will distribute liability more justly. A range of new defenses have been proposed in recent years.

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A whole host of ‘rage’ defenses have been proposed by accused persons: road rage, hockey rage, air rage, race rage, etc. The suggestion has been that the circumstances created conditions in which reasonable people could lose control and engage in criminal conduct that they would not have otherwise engaged in. These proposed defenses have not found favor with judges. Another suggestion is that poverty and seriously disadvantaged backgrounds should provide a defense. The idea is that those who suffer serious social disadvantage may have greater difficulty (or less genuine opportunity) conforming their conduct to the law’s standards. Although such considerations have not been accepted as a standing defense relieving individuals of liability, they are often taken into account at the sentencing stage of criminal procedures. Thus, poverty and social disadvantage are often recognized as informal mitigating factors that can reduce a person’s sentence for criminal wrongdoing. Still other defendants have tried to use ‘groupthink’ or ‘mob mentality’ as a defense. The phenomena underlying these attempts have been studied by social psychologists and sociologists, and there is some evidence that individuals may act in group settings in ways they would not act individually. Thus, again, the suggestion is that certain circumstances may undermine the ability of individuals to conform to the law, and thus they should be excused for their resulting criminal conduct. These suggestions have also been rejected by judges. Similarly, increased understanding of human genetics has opened up a range of other demands for defenses based on genetic predispositions to criminality. The idea is that if some individuals are genetically predisposed to engage in criminal conduct, it would be unfair to then hold them liable for that conduct. We do not have control over our genetic endowments, and it would be as unfair to hold a person responsible for acting on a genetic predisposition to violence, for example, as to hold him responsible for a genetic predisposition to stuttering. Again, these arguments have been largely unsuccessful in persuading judges to recognize a genetic defense. They have failed primarily because even if it is true that there are genetic predispositions to criminality, those predispositions do not determine subsequent conduct. The entire criminal justice system operates on an assumption of free will, sanity, and individual capacity to control conduct. Finally, there has been considerable attention in multicultural societies to the possibility of a cultural defense. Recent immigrant groups may face special difficulties meeting the legal expectations of their new country. In some cases, the difficulty will be epistemic or knowledge based. As previously mentioned, it is a well-established principle of criminal law that ignorance of the law is not a defense, but it must also be recognized that individuals coming from very different cultural traditions might be

ignorant of facts that are relevant to criminal law. For example, some immigrant groups use various substances in the treatment of illness or protection from evil spirits that are known to be harmful (e.g., mercury). If a person sprinkles her home with mercury, believing it will ward off harmful spirits, and she thereby puts the health of her children in jeopardy, should she be charged under child abuse laws? It would seem not. More problematic are cases in which the host country considers some practices harmful but the immigrant group does not, and the difference is not based in mistaken factual beliefs of the immigrant group. Facial scarring and genital surgery provide common examples. For some immigrant groups, these practices are culturally important and are performed in the belief that they are necessary for the welfare and group acceptance of the child or adolescent upon whom they are performed. In other words, the immigrants believe that they are acting in the best interests of their children when they perform these actions. However, the host country may disagree, and such actions may be criminalized as child abuse. Similarly, some cultural groups engage in a practice of ‘bride capture.’ For members of these groups, this is an acceptable way to bring about marriage. However, to Western legal systems, it appears to be kidnapping, forcible confinement, and rape. How Western criminal legal systems should deal with these cases is controversial. The problem is that those who participate in them do not think they are doing anything wrong. Thus, they do not fit the paradigm of a criminal – someone who intentionally flouts the values that the criminal law protects and thereby shows disregard for the rights and interests of others. The individuals in question do not display such disregard in their conduct. Thus, perhaps they should qualify for a cultural defense. Most problematic are situations in which there is simply a clash of values between the immigrant group and the majority in the host country. This situation arises especially in matters concerning the rights of women and gender equality. In these cases, Western legal systems have been reluctant to modify their expectations to accommodate those whose values deviate from those reflected in criminal law, even when those values are deeply embedded in cultural and religious traditions. The criminal law sets minimal standards of reasonable behavior in society that all people are to meet. Thus, judges are reticent about accepting new defenses that would relieve individuals from liability for failing to meet its standards. Criminal conduct is per se unreasonable, and legal officials are reluctant to recognize additional grounds for not holding people to account when they act unreasonably. Unless there are clear grounds for thinking that a person lacked the capacity to

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act reasonably in the circumstances, judges are unlikely to accept proposals that would expand the range of defenses at criminal law.

See also: Juvenile Crime.

Further Reading Dimock S (1997) Retributivism and trust. Law and Philosophy 16(1): 37–61. Dimock S (2009) The responsibility of intoxicated offenders. Journal of Value Inquiry 43: 339–368. Fletcher G (1978) Rethinking Criminal Law. Boston: Little, Brown. Frey RG and Morris EW (eds.) (1991) Liability and Responsibility: Essays in Law and Morals. Cambridge, UK: Cambridge University Press. Gardner J (2007) Offenses and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press. Hart HLA (1968) Punishment and Responsibility. Oxford: Clarendon. Horder J (2004) Excusing Crime. Oxford: Oxford University Press. Renteln A (2004) The Cultural Defense. Oxford: Oxford University Press. Tadros V (2005) Criminal Responsibility. Oxford: Oxford University Press.

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Biographical Sketch Susan Dimock earned her B.A. in Philosophy and History from the University of New Brunswick, an M.A. in Philosophy from York University, and a Ph.D. from Dalhousie University. She joined the faculty at York University in 1991 and currently holds the rank of Professor. Her areas of research and teaching include philosophy of law, ethics, political philosophy, public sector ethics, and the early modern history of philosophy. She has published articles on the subjects of personal autonomy, trust, punishment theory, criminal responsibility, coercion, and contractarian ethics. She is also the editor of a number of textbooks in philosophy of law and applied ethics. She has been actively involved in governance at York University. She has been President of the York University Faculty Association, Chair of the Faculty of Arts Council, and Chair of Senate. She has also been Director of the York Centre for Practical Ethics and is currently the Master of McLaughlin College.

Democracy E Lagerspetz, University of Turku, Turku, Finland ª 2012 Elsevier Inc. All rights reserved.

Glossary Congruence principle All those who are affected by a decision should have a right to participate in making it. Discourse ethics The central ethical principles can be derived from the general pragmatic presuppositions of communication and argumentation. Epistemic populism The aim of decision making is to find the correct solution to a problem or the true answer to a question. Democracy is the best form of decision making, because people as a group are more likely to find correct solutions than even the best-informed individual citizens.

A Definition of Democracy Democracy is traditionally defined as a system of poli­ tical decision making in which the people as a whole have the supreme power. However, this defines democ­ racy as a general and vague ideal rather than as an actual institutional arrangement. More concretely, democracy could be defined as a political system in which all the adult members participate in decision making in equal terms, are free to express their views, to stand for office, and make proposals, and the most important decisions are based on some reasonable, egalitarian, and effective way to amalgamate their expressed opinions. Moreover, the resulting decisions bind all the members of the community, and the officials are bound to implement them. This more complex definition is procedural in the sense that it refers to a method of making decisions, rather than to their con­ tent. Nevertheless, it still defines an ideal type. The democratic nature of actual states and communities is inevitably a matter of degree. According to the definition, democracy is a means to make binding decisions. The fundamental requirement is that the citizens are able to express their values in an authoritative way, in a referendum or in elections. Purely consultative mechanisms or information-gathering devices (like opinion polls) are not, as such, democratic. It is not enough that the citizens’ opinions are heard and somehow taken into account. Various consultative mechanisms may nevertheless be an important part of a working democracy because they provide arenas for

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Imperfect procedural justice Decisions or choices should be made by using a fair procedure; yet, there are independent standards for results and even a decision or choice made according to the procedure may fail to satisfy them. Principle of publicity People should have access to all reasons used in making decisions that significantly affect their lives. Wollheim’s Paradox: A supporter of democracy is, by definition, committed to the view that if a majority supports the policy alternative x, it should be implemented. At the same time, her own judgement may be that non-x is nevertheless the best policy.

discussion, help to form the agenda for binding decision making, and may guide the implementation of decisions. Majority rule is not a part of our definition. Many democratic theorists have seen unanimity as the ultimate ideal, and in modern democracies majority rule is usually combined with various minority-protecting devices and consensual mechanisms. Nevertheless, it is plausible to claim that within the framework of the modern state, the equality of participation requires a frequent use of major­ ity rule. In the modern state, decisions are made under the condition of disagreement. Disagreements result from moral and political pluralism, as well as from material scarcity. The continuous possibility of irresolvable dis­ agreements makes the use of majority rule necessary.

Problems in Democratic Theory We set two requirements for public decisions. First, they should be good: reasonable, well-informed, and morally acceptable. Second, they should be made in the right way: by legitimate authorities who follow a procedure that is in itself legitimate. There is a potential tension between these two requirements, for decisions that are made in the right way are not always good decisions. Democratic processes, like all authority-conferring procedures, are instances of what Rawls calls imperfect procedural justice. There are (at least) two interrelated problems that arise from the tension between content and procedure: the problem of autonomy and the problem of political knowl­ edge. Suppose that I think that x is the best plan or policy

Democracy

and therefore it ought to be enacted. I also believe that the decision should be made in a democratic way. The result of the democratic process is non-x. So either I am committed to the inconsistent position that both x and non-x ought to be enacted, or I have to drop my initial view that x, the best policy, ought to be enacted. In the latter case, I submit my judgment to the judgment of somebody else. This seems to be incompatible with the demand for personal autonomy, the demand that I should be the independent source of my own judgments. It does not matter whether the decision-maker is a single auto­ crat or a democratically constituted majority: in both cases I submit my judgment to an alien will. This is sometimes called Wollheim’s Paradox. It does not, of course, constitute a paradox in the logical sense; never­ theless, it highlights the central internal tension in our conceptions of democracy. While the problem of autonomy seems to suggest anarchistic conclusions, the problem of political knowl­ edge has an authoritarian flavor. Most classical political theorists agreed that politics should aim at the common good or the public or the general interest. This view is shared by theorists of natural law, classical republican theorists, and utilitarians. But the role of the common good or the general interest is also central in everyday political rhetoric. Policies are rarely, if ever, defended in purely egoistic terms. Democracy is seen, at least partly, as a continuous attempt to realize the common good. The realization of the common good may require special knowledge or special talents. If we can be assured that the decision-makers possess the required knowledge and talents, the problem of autonomy is solved, for then their decisions provide us rational reasons to submit our judg­ ments to their judgments. We should obey authorities simply because we are then able to do those things we want to do better. This conception of authority has its roots in the theories of Plato and Aristotle. Indeed, Plato’s Republic is the historical paradigm for the foundation of political authority on superior knowledge. Most histori­ cally important arguments against democracy are but versions of the epistemic argument. To summarize, the epistemic argument against democracy runs like this: (1) politically important decisions should realize the com­ mon good, (2) it is possible to have knowledge about the content of the common good, (3) some people have more knowledge of the common good than others, and (4) those who have more knowledge about the common good than others are more likely to make decisions that realize the common good than those who have less knowledge about it. Therefore, (5) those who have more knowledge about the common good should make the politically important decisions. But, according to our definition, (6) democracy is a system in which everyone is equally entitled to participate in the decision making, at least at some level

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of the process. Therefore, (7) politically important deci­ sions should not be made in a democratic way.

Skeptical Arguments for Democracy If we accept premises (1) and (2) of the epistemic argu­ ment, it seems natural also to accept steps (3) and (4). Premise (6) follows from the definition of democracy given above. How can we avoid the antidemocratic con­ clusion (7)? One way to challenge the argument is to deny its initial premises (1) and (2). Moral relativists, realists, and some postmodernist theorists of democracy have argued that, at least in the conditions of pluralism, the notion of the common good and of political knowledge do not make sense. The value of democracy is not related to the content of decisions, but to the very process of peaceful competition between fundamentally incommen­ surable values and interests. However, this skeptical position has some uncomfortable consequences. First, if there are no moral or political truths, the claim that democracy is the best system, for example, because it allows peaceful competition between views and values, is as relative or subjective as any other political value statement. Second, if striving for the common good or general interest is, nevertheless, an indispensable part of democratic politics, the skeptical view cannot become generally shared. If all citizens agreed on the view that political values are fundamentally unjustifiable, they would have no rational motive to participate in demo­ cratic decision making. Democratic competition would be reduced to pure struggle for power. If the skeptical the­ orists value democracy (as they do), they should not propagate their own views. A weaker version of the skeptical argument is more plausible. We may admit that the common good is a matter of knowledge (premise (2) above). We may also admit that, in principle, some people may have better knowledge about it than others (premise (3) above). Thus, there can be epistemic authorities in matters con­ cerning the common good. But unlike, say, in natural sciences, there is no generally acceptable way to decide who is and who is not an epistemic authority. Therefore, political knowledge itself cannot legitimate claims to political authority. The argument can also be put in the following way. The interim conclusion (5) in the antide­ mocratic argument is that all politically important decisions should be made by political experts only. Now, the question of who is a political expert is itself a politically important decision. Indeed, it is likely to be the most important decision of all, for by choosing wrong experts we are likely to make wrong decisions. By (5), this decision should also be made by political experts. We are in a regress.

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However, this weaker skeptical argument already pre­ supposes one basic value of democracy, namely citizens’ equality. According to this argument, a government of political experts would be legitimate only if all citizens could accept it. A consistent elitist may deny this. If there is genuine knowledge in politics, it is possible that only an expert is able to recognize another expert. Perhaps there is no way to persuade the ignorant to accept the govern­ ment of the experts. In such a case, an elitist might be forced to accept democracy as a lesser evil. Even if majo­ rities were unable to recognize true expertise, no one can, in the long run, rule without the support of majorities. Therefore, some kind of democracy is unavoidable for pragmatic reasons. Still, a difference remains. Elitists are likely to hold a presumption against more extensive use of democratic procedures. They are likely to emphasize the role of independent representatives, of expert advisors, and of constitutional constraints, and to oppose more intensive forms of popular participation. Sincere demo­ crats may also accept such institutional devices, but, unlike elitists, they would see them as necessary evils, as second-best solutions needed to protect democracy and to make it practically workable in the modern world.

Epistemic Theories of Democracy One possible response to the problem of knowledge is to challenge premise (3) of the argument. Although politi­ cally relevant knowledge exists, the best source of politically relevant knowledge is actually the democratic process itself. Democratic methods, like voting, are the best – and perhaps the only – methods for acquiring knowledge about the common good. This was JeanJacques Rousseau’s view. According to him, the task of the voters was to find out the content of the general will. The general will, as distinguished from the mechanically counted sum of individual wills, was always directed toward the common good of the political community. This also solves the problem of autonomy. According to Rousseau, ‘‘when an opinion contrary to my own prevails, it proves nothing more than that I have made a mistake, and that what I took to be the general will was not’’ (The Social Contract, book IV, chap 2). Thus, if I think that x is the best thing to do, but the majority votes for non-x, I have a conclusive reason to change my mind. According to Rousseau, in a well-organized commu­ nity the relevant knowledge ‘‘is everywhere fully evident and requires only good sense to be perceived’’ (The Social Contract, book IV, chap 1). This view can be called epis­ temic populism. The appeal of this argument for democratic procedures is that it relies on the same basic premises as the antidemocratic argument: (1)–(7). According to the argument, we may have better or worse knowledge about the common good. But even if it

is true that a political expert is likely to make better decisions than an average citizen, all citizens together may still make better decisions than the best of the experts. Many contemporary democratic theorists accept some version of epistemic populism. There are two possible versions of this view: the role of democratic processes may be conceived either as constitutive or as indicative. In other words, the supposed common good is either something that emerges only in the democratic process itself, or, then, the common good exists independently of the process, and the process is simply a means to deter­ mine its content. However, the first, constitutive version shares a problem with the skeptical view discussed in the section titled ‘‘Skeptical Arguments for Democracy’’. According to the skeptical view, there are no politically relevant truths; according to the constitutive view, a poli­ tically relevant truth is simply the outcome of the democratic process. Suppose that we all become suppor­ ters of this view. What, then, are we supposed to argue and deliberate about? What claims or statements may we rationally bring into the process if we are already aware that there is no rational reason to accept a claim or a statement about the content of the common good unless it is a product of the very process? According to the second version of epistemic populism, democratic processes provide good evidence about the independently existing common good. But how can we know that the evidence is actually good? We can present the following dilemma for the supporters of this version of epistemic populism: if an independent common good does exist, then either we can recognize its content or we cannot. If we cannot, it is uninteresting; but if we can, we recognize it either by democratic processes alone, or by both democratic processes and by some other means as well. If we can recognize the common good by some other means, the ability of democratic processes to recognize the common good cannot be a part of the justification of democratic institutions. On the other hand, if the common good can only be revealed through democratic processes, we cannot assess their reliability as sources of evidence. Surprisingly, a purely theoretical result seems to pro­ vide an answer. The so-called Jury Theorem, proved by Marquis de Condorcet already in 1785, shows that if there are only two possible kinds of answers to a question – correct and incorrect ones – and if the average probability of an individual voter answering a question correctly is greater than 0.5 (on a scale from zero to one), the prob­ ability of obtaining the correct answer from a majority of a group of voters is higher than the average, and it increases rapidly as the size of the group increases. For example, when the average competence is 0.505 and the number of people participating in decision making is 10 000, the probability that the majority of them will reach the right

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solution is 0.8413 (again, on the scale from zero to one). If their average competence is slightly higher – say, 0.525 – their probability of being right is as high as 0.999. Here the epistemic populist can find support for her confidence that majority voting provides reliable evidence on the content of the common good. The argument based on the Jury Theorem seems to provide an appealing justification of epistemic populism. It admits that there can be genuine knowledge about the common good, and that this knowledge can be the basis of political authority. Premises (1)–(3) of the antidemocratic argument are thus accepted, but democracy can still be justified as the best method (unless the competing clai­ mants for this authority are highly competent) because the majority is the best claimant of authority on matters concerning the common good. In this way, Condorcet’s result also seems to provide a coherent interpretation of Rousseau’s view. A closer examination reveals numerous problems with this argument. First, contrary to the widespread claim, Condorcet’s Jury Theorem is not, strictly speaking, an argument for democracy, except when applied to rela­ tively small communities. The Theorem is only an argument for collective decision making based on major­ ity rule. It seems to show that large groups perform better on decision making than even the best of experts. But it does not show that this group has to be coextensive with the group of all adult citizens. According to the Theorem, the epistemic competence of majorities increases rapidly when the size of the group increases. The majority in a group of, say, 100 000 citizens is already almost infallible. Any further increase in the size of the decision-making group has no significant epistemic impact. Thus, the Theorem does not justify political equality. A large mod­ ern state in which only, say, 5% of the adult population is entitled to participate in decision making is practically as effective a truth-seeker as democracy. Second, the epistemic argument for democracy proves too much. If democratic processes provide the best evi­ dence about the content of the common good, the outcomes of democratic processes provide conclusive reasons for citizens to change their views. The problem is that persisting opposition becomes unreasonable. We usually think not only that opposition is often reasonable, but that it actually plays a vital role in the continuous functioning of democracy. In other words, it may be perfectly reasonable to think that x is the policy that – given the democratic verdict – should be implemented, but non-x is nevertheless the best policy.

Deliberative Theories of Democracy While Rousseau and Condorcet focused on voting, many theorists of democracy since Aristotle have emphasized

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the role of public discussion. The recent resurrection of the deliberative ideal in democratic theory could partly be seen as a reaction against the interest-based concep­ tions of democracy that derive from utilitarianism and from the theory of rational choice, and have flourished especially in political science since the Second World War. In the recent philosophical discussion on democ­ racy, the deliberative theory is certainly the most popular alternative. Many deliberative theorists have been influenced by the discourse ethics of the German philosopher and poli­ tical theorist Ju¨rgen Habermas. In the real world as we know it, discussion is often limited by ideological distor­ tions, particular interests, social inequality, and even by a naked repression of opinions. In an ideal world governed by the rules of communicative rationality, the participants in a discussion would have only a single aim, to solve practical and theoretical problems rationally. Hence, they would use only the force of argument, and accept state­ ments and policy prescriptions only for rational reasons. This would solve the problem of autonomy. In a rational consensus, no one is forced to submit his or her judgement to that of another. The rational discussion would filter out ideological distortions as well as claims based on personal or group egoism. The Habermasian counterfactual sup­ position is that ideally rational individuals, discussing in an ideal communication situation, would reach a rational agreement on any given issue related to their general­ izable interests. Moreover, this is not merely utopian, because as sincere participants in everyday discussions we all have implicitly accepted the norms of communi­ cative rationality and the commitment to the search for a rational consensus. This implicit commitment explains why the appeal to shared values like the general interest is the norm even in real-life politics. The procedures and practices of real life may approximate the ideally rational procedures, and the ideal may be used as a yardstick when criticizing the existing democratic procedures. The deliberative theory of democracy is, in many senses, a more appealing normative view than its utilitar­ ian and Condorcetian competitors. Unlike the latter theories, which emphasize the aggregative aspects of democracy, deliberative theories recognize that the legiti­ macy of democracy does not depend only on the fairness of the voting rules, but also on the fairness and rationality of the processes in which preferences are formed and revised. It pays attention to the nature and quality of the discussion that precedes the final verdict. Democracy is not conceived only as a machine that takes expressions of individual preferences as inputs and produces decisions as its outputs. The problematic side of the deliberative view is that elections, voting, and the majority rule are often conceptualized merely as imperfections of the democratic process. These are justified only by the less-than-ideal conditions of the actual world. Most notably, in real

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decision making there is always a time limit. Because of the need to make binding decisions in a finite time, we often have to cut off the debate before a consensus has been reached, and just take vote on the issue. Only this friction makes closure rules such as the majority principle rational. Against this view, it may be argued that the presence of a time limit, material scarcity, and pervasive disagreements, are constitutive properties of political decision making rather than its imperfections. Unlike a world without coercion or without manipulation, a world without time limits cannot be conceived as an ideal that could be approximated. If there is no time limit for delib­ erations, there is no real need to make any binding decisions at all. The question is whether the ideal can work as a critical test situation for political decision making. Even if the deliberative ideal model is accepted, it is still unclear why the majority principle is considered as the second-best alternative when a rational consensus is unattainable. If there is no consensus, somebody has to submit. Why should it be the minor rather than, say, the less informed part? Does the voting result provide the minority with an additional reason to believe that its view is not the correct one? Why does it not provide a similar reason for the majority to doubt the correctness of its own opinion? Actually, most deliberative theorists justify the majority rule as the second-best by appealing to its egalitarian nature. Equality is a central norm in deliberative communication. However, if a rational consensus is not attainable in a finite time, the decisionmakers are forced to violate some norms of communica­ tive rationality. It is not clear why only the norm of equality should be taken as inviolable. Actually, the the­ orists of deliberative democracy take democratic equality as an independent value that is not derivable from the value of deliberation.

Democratic Equality It seems that democracy cannot be justified in purely epistemic terms. Its value is at least partly connected to its egalitarian nature. Democratic equality consists of (at least) two separate principles. The first is the principle of maximal inclusion: all adult members should be included. Second, the rights to participation should be equal among those included. One important aspect of this principle is citizens’ equality as voters: every voter has only one vote, and all the votes are of equal value. Votes are counted, not weighed. How is the democratic equality to be justified? For a utilitarian, or, more generally, a consequentialist moral theory, equality can have only an instrumental role. The most obvious condition of democratic equality is equality of interests: if the supporters and opponents of a proposal have equal stakes, the simple majority rule

maximizes the total utility. In other conditions, however, nonegalitarian ways of making decisions might produce better results. For right-based moral theories, the role of political equality is equally problematic. A right to equal treatment may well be a basic or natural right. The right to equal participation is different, for it means a right to exercise power over the others, and, moreover, it already presup­ poses a specific institutional structure. The most important right-based justification of democratic equality in the contemporary literature is the so-called congru­ ence principle (or all affected interests principle). According to the standard formulation, all who are cau­ sally affected by a decision should have a right to participate in making it. This formulation, however, is internally incoherent. The content of the decision deter­ mines which interests are affected by it. Thus, by ‘those who are affected’ we cannot mean those whose interests are actually affected by a particular decision, for that can be determined only when the decision has been made. Perhaps we should say that all who could possibly be affected by a decision should have a right to participate? But this version seems to lead to a reduction. Any resource, say, a cent of money or an hour of time, used for one purpose, could equally well be used for some other purpose. The conclusion seems to be that all people in the world have potential interests to all decisions made, and are therefore entitled to participate in making them. Nevertheless, the congruence principle obviously has some intuitive plausibility. In most contexts, the fact of actually being affected by a decision, private or public, does create a prima facie right to be heard. If the decisions made somewhere have a significant effect upon my life and my interests, I do have a right to present my view­ point to the decision-makers. I may have further rights to be informed and consulted, a right to defend myself or to respond, to make an appeal, a complaint, or a lawsuit, sometimes a right to demand reconsideration. The right to be heard arises from the natural fact that my life is affected. The right to participate in the nationwide poli­ tical decisions may be seen as an instance of this more general right to be heard. But without additional pre­ mises, the right to be heard is insufficient to explain why hearing should take the strong form of democratic participation.

Democracy and Rights The relation between democracy and rights is a complex one. On the one hand, the normative ideal of democracy clearly presupposes many fundamental rights. Most importantly, the traditional political freedom rights such as the freedom of speech are necessary preconditions for democracy. On the other hand, the outcomes of

Democracy

democratic processes may violate rights. This is the tradi­ tional problem of majority tyranny that has troubled the liberals since the nineteenth century. The most extreme libertarians, such as Robert Nozick, see rights and democ­ racy as incompatible. Some mainstream liberals, such as Ronald Dworkin, argue that the task of democratic pro­ cesses is to arbitrate between competing interests. Issues that are related to rights should take precedence over the democratic process; in practice, this is usually equated with a strong form of judicial review. In contrast, Ju¨rgen Habermas sees democracy and individual rights as basi­ cally compatible. Finally, some majoritarian democrats, such as the philosopher Jeremy Waldron, have argued that democratic processes should be taken as fundamental. Their argument is not that democratic majorities should have the right to violate our individual rights; their point is rather that in a pluralistic world, there is no agreement on the exact content of these rights. Sometimes rights may clash: for example, the right to privacy and the freedom of press may point to different directions. Quite often, changes in technology, increased knowledge, and changes in values alter our conceptions of rights and of their importance; environmental issues provide good examples. According to the argument, such problems should ulti­ mately be solved in a democratic way. If we deny this, we have to accept the epistemic argument against democracy discussed in the section titled ‘Epistemic Theories of Democracy’: only Supreme Courts and similar expert bodies are sufficiently competent to deal with issues related to the basic rights. The problem of majority tyranny should be distin­ guished from the problem of permanent majorities (and minorities). Even if a majority respects the basic rights of the minorities, it may still treat them unfairly, ignoring their specific values and interests. If such a majority is also permanent in the sense that it is based on some stable prepolitical differences (for example on ethnic or reli­ gious divisions), it may be asked what rational reasons the minorities have to obey the democratic procedures. It seems that there is no institutional solution to this pro­ blem. Institutional arrangements such as proportional representation may mitigate it, but even proportionally elected bodies usually use the majority principle in their internal decision making. Consensual arrangements that provide minorities a veto right over some decisions or ensure some proportionality over the outcomes may be more effective in ensuring fairness, and they have actually been used in countries troubled by pervasive ethnic con­ flicts (for example, in Northern Ireland and Lebanon). While such arrangements may sometimes be practically necessary, they unavoidably compromise the democratic equality. The existing political divisions and identities are taken as granted and unchangeable, and those citizens who are unwilling to identify themselves totally with any of the recognized groups have less power than their

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fellow citizens. One of the preconditions of a working democracy seems to be relative pluralism: there are numerous social and political groups but they are over­ lapping, none of them forms a monolithic majority, and citizens are at least sometimes willing to switch their political loyalties. Still one problem is that of the future generations. Since the early nineteenth century, some critics of democracy have remarked that even the most egalitarian democracy is necessarily an oligarchy of the present gen­ eration in which the present (adult) members of the demos are free to ignore the interests of the future generations. This certainly constitutes a problem for all the prevailing theories of democracy, and the present ecological pro­ blems make it more burning than ever. However, it cannot be used as an argument against democracy. Any nondemocratic ruling elite (for example, one constituted by an ecologically enlightened experts) is likely to face the same problem, unless we accept a strong form of the epistemic argument (1)–(7). The situation is the same as above: if people are generally likely to favor their own interests, so are the members of the enlightened elite. If, however, human beings may also be guided by altruism and by moral principles, the general public may be as good a guardian of the common good as any elite.

Representation vs. Direct Democracy From ancient Greece to the eighteenth century, ‘democracy’ meant a system based on citizens’ direct participation. Representation was considered an aristo­ cratic practice. In contrast, modern democratic states are invariably representative democracies, although many countries, especially Switzerland and some states in the U.S., use the referendum device extensively. There are two traditional arguments for representation. According to the competence argument, elected representatives are likely to be more virtuous and better informed than average citizens. Therefore, they are more able to find out what the common good requires. This is actually a version of the epistemic argument (1)–(7) discussed in the section titled ‘Epistemic Theories of Democracy’. The obvious counterargument is that if people are not suffi­ ciently competent to make the important decisions, what guarantees that that they are sufficiently competent to choose the representatives who make them? What pre­ vents from accepting the epistemic argument against democracy in its full force? According to the practical argument, direct democracy is not practicable in large and complex polities like mod­ ern states. Moreover, an extensive system of direct democracy is an overly demanding ideal. Citizens of the modern state do not, unlike the model citizens of Aristotle or Rousseau, see civic participation as a part of their

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shared conception of the human good. Partial remedies such as referendums are slow and expensive. They may be used as supplements of representative institutions, but most decision making has to be entrusted to smaller groups. In large communities, the influence of a single member is bound to be indistinguishable even in a direct democracy, so individual citizens do not have strong instrumental motives to acquire politically relevant infor­ mation or to go to the polls sufficiently often. Even though the modern information technology may make voting easier, it cannot make an individual voter more powerful. According to the argument, representation is compatible with democracy, for the people want to govern themselves through representatives. Direct democracy would simply favor small groups of activists at the expense of the majority. In this sense, representative democracy is likely to be more equal than direct democ­ racy. However, the practical argument does not exclude attempts to extend direct forms of participation, insofar as citizens themselves support them. An additional problem in referendum democracy is that of the agenda. If people are not willing to go to the polls very often, the political decisions submitted to the people have to be reduced to simple choices between few clearly defined alternatives. Those who define the ques­ tions submitted to the people necessarily exercise considerable power over the outcomes as well. Representative democracy is often considered paternalis­ tic because it is supposed to be based on the competence argument. In one sense, however, representative democ­ racy may appear to be less paternalistic than referendum democracy. In a small group of full-time decision-makers, votes can be taken as many times as is needed and all alternatives having some popular support may be dis­ cussed and voted on. It is at least theoretically possible to give the representatives full control over the agenda. In this sense, both representative democracy and referendum democracy have to abandon some aspects of face-to-face direct democracy. Representation rejects direct participation but referendum democracy rejects the decision-makers’ full control of the agenda. One possible response to the practical argument for representation is that because the modern nation-states are simply too large to be genuine democracies, they should be broken down to smaller units that could allow more direct forms of participation. This idea is in line with the views of Aristotle and Rousseau, and it has been supported by many radical utopists since the nineteenth century. The obvious problem is that in a utopia of innumerable self-governing small units, the most impor­ tant political problems are likely to arise in the interactions between these units, unless they simulta­ neously return to self-sufficiency and to much simpler technology. Any method to regulate the relations between

interdependent units seems to require something like representation. The last problem provides some reasons for another radical proposal. Perhaps we should raise democracy to the supranational level, and ultimately create a global democracy. The congruence principle gives some sup­ port to this proposal. The most important problems faced by the modern democracies – for example, global warm­ ing, pollution, economic recessions, refugee problems, or the global military insecurity – transgress the borders of a single state. For example, the European Union may be seen as an attempt to come to terms with this predica­ ment. The EU also illustrates one fundamental problem shared by all such proposals. The congruence principle does not only require that those who are affected by a decision should have a right to participate in decision making. It also requires that those who are not signifi­ cantly affected by a decision should be excluded. It is not compatible with the principle that all Euro-citizens par­ ticipate in making a decision that concerns only the inhabitants of one small member state. The fundamental question is who decides what the right level of decision making is in different issues. A global or supranational democracy would also intensify the problems tradition­ ally related to representation: the problems of accountability and of the lack of citizens’ interest. Nevertheless, it is not possible to cope with the global problems without some kind of supranational institu­ tions. The democratic accountability of such institutions is likely to be one of the most important challenges of democratic theory in the near future.

Democracy and Applied Ethics The philosophy of democracy is a part of general social and political philosophy. Nevertheless, the way we con­ ceive the nature of democracy has important implications to applied ethics. The most important implications concern the moral requirements attached to various insti­ tutional roles in democratic societies. If democracy is accepted as a legitimate form of government, it means that at least sometimes, democratic decisions constitute independent reasons for actions that are able to override our private judgments. The fundamental practical ques­ tion is how wide the authority of democratic procedures is. It is not just the question of the obligations of private citizens. Politicians, judges, bureaucrats, army officers, and sometimes even doctors have duties and responsibil­ ities that are connected to the legitimacy of the government they serve. A democratic government, like any modern form of government, can work only if these office-holders by and large obey its decisions, sometimes against their own better judgment. Thus, even in the most democratic society there is a permanent tension between

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the demands of private conscience and those of public authority. A second important class of practical problems is related to the principle of publicity. Publicity and the freedom of information are central in the deliberative theories discussed above. But even the utilitarian theories of democracy – for example, those put forth by Jeremy Bentham and J.S. Mill – see public discussion and the existence of an independent, active, and well-informed press as necessary conditions of a working democracy. The democratic principle of publicity may, however, sometimes clash with the other democratic principles such as the right to privacy, effective decision making, or security. Thus, the philosophy of democracy is inti­ mately connected to such fields of applied ethics as the ethics of journalism and media ethics.

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Goodin RE (2007) Enfranchising all affected interests, and its alternatives. Philosophy and Public Affairs 35: 40–68. Habermas J (1996) Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy. Rehg W (trans.) Cambridge: MIT Press. Hyland JL (1995) Democratic Theory. The Philosophical Foundations. Manchester: Manchester University Press. Manin B (1997) The Principles of Representative Government. Cambridge: Cambridge University Press. Rousseau JJ (1973) In: Cole GDH (ed.) (trans) The Social Contract and the Discourses. London: Dent. Saward M (1998) The Terms of Democracy. Cambridge: Polity Press. Saward M (ed.) (2007) Democracy. Critical Concepts in Political Science (4 vols.). London: Routledge. Waldron J (1999a) The Dignity of Legislation. Cambridge: Cambridge University Press. Waldron J (1999b) Law and Disagreement. Oxford: Oxford University Press.

Relevant Websites See also: Autonomy; Discourse Ethics; Distributive Justice, Theories of; Liberalism; Political Obligation; Rights Theory; Theories of Justice, Rawls.

http://www.idea/int/ – International Idea, The International Institute for Democracy and Electoral Assistance.

Further Reading

Biographical Sketch

Bohman J and Rehg W (eds.) (1997) Deliberative Democracy: Essays in Reason and Politics. Cambridge: MIT Press. Budge I (1996) The New Challenge of Direct Democracy. Cambridge: Polity Press. Christiano T (1996) The Rule by the Many. Boulder: Westwiew Press. Dahl RA (1989) Democracy and Its Critics. New Haven: Yale University Press. Estlund D (2008) Democratic Authority. A Philosophical Framework. Princeton: Princeton University Press. Goodin RE (2003) Reflective Democracy. Oxford: Oxford University Press.

Eerik Lagerspetz is the Professor of Practical Philosophy at the University of Turku, Finland. He has published two books and several articles on democratic theory, philosophy of law, and the history of legal and political thinking. His book The Opposite Mirrors (1995) studied the ontology of social institutions. He is currently working with the philosophical problems related to the theory of social choice and to other formal approaches to collective decision making.

Dental Ethics J V M Welie, Creighton University, Omaha, NE, USA ª 2012 Elsevier Inc. All rights reserved.

Glossary Cosmetic intervention Treatment that is not aimed at restoring or protecting a person’s health but on esthetic improvement of that person’s appearance. Fiduciary relationship Relationship based on trust (Latin: fides), generally because one of the parties in the relationship is vulnerable and dependent on the other party’s benevolence.

The Discipline of Dental Ethics The Emergence of Dental Ethics Normative guidelines regulating the behavior of dentists have a long history. The Code of Hammurabi from approximately 1790 BC, the only surviving copy of which was chiseled in a large block of basalt stone that is now housed at the Louvre Museum, states that a den­ tist’s two hands shall be cut off if the patient’s death is due to the dentist’s malpractice (which may seem awfully severe but was actually an improvement over the prevail­ ing ‘‘an eye for an eye, a tooth for a tooth’’ rule). But as a discipline, dental ethics is quite young. The first codes of dental ethics were only drafted in the second half of the nineteenth century AD. In 1921, the German dentist Baden publishes his ‘‘Die rechtlichen und sittlichen Grundlagen des zahnaerztlichen Berufes in ihren Beziehungen zur Standesmoral’’ (the legal and moral foundations of the dental profession and its relationship to professional ethics), followed 2 years later by Noyes’s ‘‘Ethics and Jurisprudence for Dentists.’’ By the end of the twentieth century, there were text­ books in dental ethics as well as ethics for dental hygienists on the market in several languages, authored and edited by scholars in a variety of countries, including the United States, the United Kingdom, The Netherlands, Sweden, Germany, and Italy. In 2007, the FDI World Dental Federation published the first edition of its Dental Ethics Manual. In the latter quarter of the twentieth century, several dental organizations also became active in the field of ethics. The Professional Ethics in Dentistry Network (PEDNET), later renamed the American Society for Dental Ethics (ASDE), was established in 1987. In that same decade, the American College of Dentists (founded in 1920), began focusing on dental ethics; it is one of the

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Medical indication Justification to provide a particular medical intervention based on objective information that the patient is suffering from a specific illness for which this intervention is likely to provide relief. Profession A collective of experts who have jointly and publicly committed to altruistically place their expertise in the service of all people who are genuinely in need of such expert care, and in turn are trusted by the public to do so.

chief concerns of that organization today. In the mean­ time, the International Dental Ethics and Law Society (IDEALS) was founded in 2000, assuming responsibility for the biannual international conferences in dental ethics and law that had been offered since 1992. Dental Ethics as a Separate Discipline What justifies the investment of such significant energies in the development of a new field of healthcare ethics? There is no question that dentistry is a health profession. Hence it is subject to the same ethical values and norms that guide medicine, nursing, physical therapy, and others. Basic ethical concepts such as respect for patient autonomy and the duty first and foremost not to harm apply to dentists as much as they do to pharmacists. Orthopedic surgeons must obtain informed consent before initiating the knee replacement and so must den­ tists before placing an amalgam restoration. Dentists share in the painful duty to engage in peer review and if necessary to blow the whistle on an incompetent collea­ gue. And like all health professionals they must warrant the trust that patients place in them. But none of this is truly specific to the practice of dentistry and hence does not necessitate the development of a separate field of ethics, that is, dental ethics. Moreover, the practice of dentistry does not appear to involve the kind of dramatic scenarios that are the focus of much of contemporary bioethical scholarship and teach­ ing. Unlike physicians, dentists are never faced with the challenge of when to let go of a dying patient. Unlike pharmacists, they will not be asked to fill a prescription for ‘‘morning after’’ pills. Unlike nurses, they will not be asked to insert the venous line of a prisoner about to be executed by lethal injection. Unlike geneticists, their research does not involve embryonic stem cells. Unlike

Dental Ethics

clinical psychologists, they are not likely to be told about a patient’s plan to harm others. The absence of similar such complex and contentious issues appears to imply that there really is no need for a separate discipline of dental ethics. This is not to say that those teaching ethics to dental students can simply repeat their lectures designed for medical students or their case studies designed for nursing students. In order for educational offerings in the field of ethics to be effective, instructors of dental students must be familiar with the nature of dental practice so as to provide applicable examples, create realistic case studies, and select or write inspirational study materials. They must be familiar with the historical development of the profession of dentistry, the codes of ethics, and other normative policy documents issued by organizations in the oral healthcare field. And they must have a good insight in the overall dental curriculum, the settings in which dental education takes place, as well as the learning styles of most dental students. In this pedagogical sense, there is certainly a need for a specific discipline of dental ethics. But the question remains of whether dentists face ethical challenges that other healthcare providers do not face. Or are there ethical challenges that all kinds of healthcare providers might face at some point in their career, but that dentists face in a much more dramatic or systemic fashion such that it makes most sense to examine and analyze those challenges in the context of dental practice? For example, many different healthcare profes­ sionals may occasionally find themselves having to decide whether restraining a patient is justified. But psychiatrists and other mental health professionals face this challenge much more frequently, and most advanced bioethical scholarship about this issue has therefore been achieved in the domain of mental healthcare ethics. In this article, five ethical areas will be discussed that are not the sole concern of dentists but that dentists face much more commonly and more urgently than most other health professionals.

Independent Medical Speciality Except for the field of podiatry, which has emerged only recently, dentistry is the only medical specialty that is practiced by non-physicians. Unlike pharmacists, nurses, or occupational therapists, the diagnostic and therapeutic approaches used by dentists are essentially the same as those used by otolaryngologists (ear-nose-throat specia­ lists) or ophthalmologists (eye specialists). However, the latter are physicians who subsequently specialized in the treatment of those specific body parts, whereas dentists do not have to first attain a medical degree – at least, not anymore. Italy, Spain, and Austria are among the rare

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exceptions where dentistry used to be a medical special­ ity, sometimes called stomatology (i.e., the science of diseases of the mouth). But in the late twentieth century, their educational requirements were equalized with those of other European countries (to foster free movement of professionals inside the EU), and the Italian dentista nowa­ days is just a dentist, and not a physician-dentist. Reflecting this separate standing, dental education is also offered in special schools of dentistry, separate from medical schools. The first such American dental school was founded in Baltimore in 1840 as a free-standing school. Nowadays, dentistry is generally taught in uni­ versities, but in Canada and the United States, dental schools are still fully independent of medical schools and some university medical centers have dental schools but not medical schools. In many European countries, the early part of the dental curriculum may still parallel the medical curriculum, while dentistry is often a division of the medical school. But even in these countries, dental students graduate with a different degree and are licensed to practice only dentistry. This unique status of dentistry among the many fields of medicine not only has educational and economic con­ sequences, many of which are highly advantageous for patients and practitioners alike, but also ethical conse­ quences. The most urgent of these is the different recognition that dental treatment tends to receive com­ pared to medical treatment. Diseases of the oral cavity can be very debilitating. Toothaches physiologically are among the most severe pains one can suffer. Caries is the most common infection among children and dental conditions are a major cause of lost days of school. Furthermore, there is ample evidence that many diseases of the oral cavity can impact the health of the person overall and even result in death, ranging from the obvious example of oral cancer to cardiac conditions, diabetic complications, arthritis, and preterm delivery of babies with low birth weight. And yet, insurance companies typically do not reimburse for dental care (unless the patient has taken out separate dental insurance). The Medicare program, which covers health care for elderly citizens of the United States, covers virtually all forms of medical treatment, but not dental care. This, in turn, impacts the access people have to oral health care ser­ vices, a topic covered in the last section of this article. A very different consequence of the separate status of dentistry concerns the practitioners themselves. Whereas medical students are trained by many different medical specialists and generally end up practicing in large multi­ disciplinary and multispeciality care facilities, dentists by and large are trained by dentists and end up working in small, private dental offices. Consequently, physicians tend not to interact with dentists much, and dentists tend not to interact much with physicians, or for that matter, any other health professionals. Yet most patients

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tend to see their dentist more frequently than their pri­ mary care physician, enabling the former to diagnose systemic conditions first, ranging from AIDS to anorexia or addiction to amphetamines. The separate and solitary character of dentistry creates a mental barrier to dentists’ consulting with other health professionals (and viceversa), frustrating integration of care. It also impacts, as will be discussed later, the development of standards of dental care that are informed by and sufficiently sensitive to the overall health and social characteristics of patients.

The Shift to Elective and Cosmetic Interventions From Healthcare to Smile Therapy The lesser recognition as health professionals that dentists tend to receive is not only due to the age-old separation of dentistry from the medical profession, as outlined in the former section; it is also a problem reinforced by the emergence of cosmetic dental treatment. When in the early twentieth century plastic surgeons realized that the techniques they had developed to reconstruct the faces of soldiers damaged by gun shot wounds and bomb shells could also be used to beautify an otherwise unharmed face, the discipline of cosmetic plastic surgery was born. Initially, the medical profession tried to keep surgeons from embarking on cosmetic interventions, arguing that such interventions are not medically indi­ cated, have no medical benefit, and hence should not be of concern to physicians. Ugliness, after all, is not described in pathology textbooks as a disease. But vanity is a power­ ful force, as are the many pressures on people to conform to a socially prescribed ideal of beauty, race, height, or body shape. Cosmetic plastic surgery quickly became popular and the medical profession was forced to end its opposition, allowing physicians to engage in and even limit their practices to cosmetic plastic surgery and other cosmetic procedures. Dentistry followed suit. But what sets physicians apart from their dental peers is that cosmetic medical interven­ tions are by and large performed by a limited and welldefined class of physicians, that is, plastic surgeons, dermatologists, and ophthalmologists. The average neo­ natologist, immunologist, geriatrician, neurosurgeon, or oncologist does not perform many cosmetic interventions, if any. In contrast, almost all dentists devote a significant part of their practice to cosmetic interventions. Orthodontia is very often a matter of esthetics as opposed to oral functioning, as are bleaching and veneers. Cosmetics also tends to be a very profitable part of den­ tistry even though (or sometimes because) insurance companies do not cover such interventions (and hence there are no limitations on the amounts that can be charged).

Advertisements by dentists also tend to focus on cos­ metics; one rarely encounters an advertisement in which a dentist warns against the dangers of undiagnosed oral cancer or premature delivery. Advertisements generally show energetic and beautiful people with a big smile on their face. Many dentists include some variation on the word ‘‘smiling’’ in their practice name. Even professional organizations such as the American Dental Association have gone to great lengths to associate dental care with smiling. The ADA now has a Smile Healthy program and its program designed to provide education, preventative, and restorative care to low-income children who do not have access to care is called Give Kids A Smile. These advertisements and announcements are intended to draw people to the dental office. In the case of the ADA’s Give Kids A Smile program, the children will then receive oral health care (as opposed to cosmetic enhancements). But the unintended consequence of those smile campaigns is that the public at large is encouraged to view dental care foremost as smile therapy as opposed to healthcare. The Fiduciary Relationship Between Dentist and Patient As mentioned, this widespread shift from relief of the most severe pain a person can suffer – traditionally the sole function of the itinerant dentist who would set up shop in the market square and extract teeth before moving on to the next town – to esthetic enhancements that are completely optional, renders it ever more difficult to argue convincingly that dentistry is essentially a medical discipline and should be fully covered by private and public insurances. But this shift also impacts the relation­ ship between individual dentists and their patients. The relationship between physicians, nurses, or other health professionals, and their patients is traditionally defined as a fiduciary relationship. That is to say, patients must be able to trust up-front any and all physicians, each and every nurse, every therapist, merely because of their being health professionals (and not because they have come to know them as trustworthy after several visits, much as one can come to trust one’s car dealer or stock broker). Whereas most other relationships between ser­ vice providers and their clients are contractual, patients are not in a position to bargain and negotiate the terms of such a contract. Their trauma, disease, and suffering have rendered them vulnerable and largely dependent on the expert advice of health professionals. In turn, health professionals must warrant patients’ trust. This is achieved first and foremost by the commit­ ment shared by all health professionals not to capitalize on patients’ vulnerability but to always give priority to patients’ health-related interests. Thus, while it is per­ fectly permissible for a car dealer to date a client, nurses

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may not use the trust patients place in them to commence a romantic relationship. Physicians may only recommend treatments that their patients truly need; overtreatment (in an attempt to earn a larger income) is not permitted. In contrast, it is perfectly permissible for car dealers to try to sell their clients more luxurious cars than they need. Indeed, most car buyers really only need a vehicle that can safely get them from home to work or school; every­ thing else is a matter of desire and taste, rather than genuine need. When patients come to their dentist because of ram­ pant caries, a raging abscess, or severe bruxism, that renders them vulnerable. They genuinely need treatment and they are dependent on dentists to obtain relief of their complaints. They trust – and have no other option but to trust – that their dentist will only recommend treatments that are likely to provide effective relief, neither different, nor less, or more treatments. In turn, dentists must base their recommendations on a combination of biomedical science, objective diagnostic information about the patient, and their own verifiable clinical experience. Thus, patients’ relationships with their dentist are both ethically and legally viewed as a fiduciary relationship. Cosmetic Interventions and the Dentist–Patient Relationship However, things change when the services requested and offered are not medically indicated, when there is no objective need on the part of the patient, when the treat­ ment is completely optional, and the success of its completion can never be assessed objectively. For ulti­ mately, beauty is in the eye of the beholder; it is not a matter of science. When a dentist provides veneers because the patient believes whiter teeth will make her prettier, when the orthodontist places braces because the patient believes it will make him more handsome, one cannot objectively argue with either patient. Conversely, neither the veneers nor the braces are truly needed in these instances. The patients are not diseased and their health will not improve as a result of the interventions. Indeed, it seems incorrect to even use the label ‘‘patients,’’ for they are not akin to the patients suffering from a malignant tumor or an infection. Instead, they are more akin to clients and the dentist who provides the veneers or the braces is more akin to a beautician or an interior decorator than an oncologist. It should be pointed out once more that there is noth­ ing intrinsically immoral about placing veneers, braces, or any other purely cosmetic intervention. But problems do arise when these services are marketed within the context of a fiduciary relationship, when those receiving the care are led to believe or sustained in their belief that since the providers of these services are health professionals, they can trust them to only recommend treatments that are

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objectively needed, neither different, nor less or more treatments. This is exactly why the medical profession in the early twentieth century objected to physicians’ engaging in purely cosmetic plastic surgery. Nowadays, cosmetic medical services are provided widely. But they are provided by a relatively well-defined subsection of physicians. As mentioned, the average phy­ sician is not in the business of providing cosmetic services. When a pregnant woman goes to her obstetrician she will expect and trust that physician to give only medically sound advice. Their relationship is fiduciary. In contrast, when somebody visits a plastic surgeon, chances are that he is going there to obtain a cosmetic service and will fully expect the physician to cater to his vanity. That person is a client and it behooves him to beware of the advertisements and other sales tactics used by the surgeon to whet people’s appetite for cosmetic services. For that doctor is a businessperson, and their relationship is contractual. But when somebody comes to the dental office for her semi-annual check-up, what does or should she expect? Both treatment for her caries and bleaching? What is the dentist going to be proposing? Only a crown, or also a closure of that small split between the incisors? Cosmetic interventions are part and parcel of almost every dentist’s daily work, with on average a quarter of all care being done for esthetic purposes. Thus, the dentist is switching hats continuously, or may even be wearing two hats at the same time. Will the patient know which hat? It is not possible – or at least very problematic – to be both in a fiduciary and contractual relationship with the patient. Either the patient can blindly trust the dentist, or she must beware of the dentist as any assertive shopper should be vis-a`-vis a sales person. Any healthcare provider must be conscious of the ethical (and legal) challenges that arise when the services to be rendered shift from medically indicated treatments that have objective benefits, to beautification and similar enhancements that are achieved using surgery, drugs, and other medical interventions but are not themselves a matter of healthcare. The fact that it is experts trained in healthcare who provide those services does not make the services themselves healthcare services. What sets dentistry apart from most other health professions is that this shift has taken place in virtually every dental office. Dentists more than other health professionals face the challenge to make absolutely clear to their patients whether and when they are wearing the hat of healthcare provider and can be fully trusted to recommend only medically indicated interventions that have objective benefits, and when they are engaging in the business of providing optional cosmetic services with subjective ben­ efits only, so that patients will know when to simply trust their dentists and when to bring a healthy dose of ‘‘buyer beware’’ attitude to the dental office.

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The Conflict Between Profession and Business Patients’ Trust and Dentists’ Conflicts of Interests In the former section, we have seen that the relationship between healthcare providers and their patients is essen­ tially a fiduciary relationship. Rather than approaching their physician or pharmacist with a buyer-beware atti­ tude, patients must be able to visit their healthcare providers with the certainty that the latter will not recom­ mend unnecessary services or otherwise capitalize on patients’ vulnerability. Patients have to trust that health providers will give priority to patients’ health interests above their own financial or other personal interests. We have also seen that the fiduciary relationship is grounded on and predicated by the nature of the services rendered. It is their illness, trauma, or disability that renders patients vulnerable and dependent on the exper­ tise of a health professional. If the nature of the services changes to, for example, a purely optional cosmetic inter­ vention, the patient becomes a client, the provider a business person, and the fiduciary relationship based on trust changes into a commercial relationship, the terms of which should be spelled out in a mutually agreeable contract. The challenge that all health professionals face is how to warrant patients’ trust. The social organization of healthcare providers in professions, as opposed to guilds or trade organizations, is one such mechanism. Membership in a profession assumes completion of a standardized educational program, required maintenance of one’s competencies throughout one’s career, abidance by clinical standards and treatment protocols, as well as more painful duties such as peer review and internal disciplining (more about these in the section titled ‘Peer Review’). But the defining hallmark of a genuine profes­ sion is the public promise (the literal meaning of the word ‘‘profession’’) to put the interests of those served ahead of one’s own interests. Most healthcare professions under­ score this public commitment in a very visible manner through white coat pledges and graduation oaths. There are many healthcare provider interests that can come into conflict with the healthcare interests of patients. Clinical researchers may want to enroll their patients in experimental studies; dental students may want to practice certain restorations on their patients; amorous practitioners may desire to start a romantic relationship. But the single most important provider interest is certainly financial. Health professionals earn their living by treating patients. Those conflicts of interests can become serious and harmful to patients. Institutional review boards, informed consent protocols, disclosure requirements, and publication

guidelines are ongoing attempts to protect patients against the interests of clinical researchers and the biomedical industry. Guidelines in codes of ethics and legally binding proscriptions in dental practice acts are intended to protect patients against the amorous interests of dentists (and viceversa). But it appears difficult to protect patients against financial interests.

Dentists as Entrepreneurs Depending on the reimbursement system, the temptation for dentists to provide more, less, or different treatments than the patient really needs will differ. For example, in a capitated system in which a dentist is paid a fixed amount per patient by the insurance company, irrespective the treatments performed, it is advantageous to the dentist to provide less rather than more treatments. In a fee-for­ service system, the temptation will be to perform more interventions. Then again, if the reimbursement rates used by insurance companies are much lower than that which dentists can charge privately paying patients, it is advantageous for dentists to refuse treatment of insured patients altogether. Dentists are certainly not the only health providers facing these financial conflicts. But they do tend to face this conflict in a more direct and urgent manner. If a patient receives healthcare from a team of professionals, each contributing a small part of the overall care plan, it becomes much more difficult for the members of that team to individually adjust their interventions in an attempt to advance their own income. For on the one hand, those interventions are tied to and part of the over­ all care plan; on the other hand, the whole team would question the adjustments. Conversely, the income of any given team member may be determined more by what a fellow team member recommends than by his or her own decisions. The findings of the pathologist will determine whether a patient is going into surgery; that decision determines whether the anesthesiologist joins the team; the outcome of the surgery in turn will determine whether the intensive care nurses get another patient or rather the rehab team. However, most dentists do not operate in hospitals or large clinics. Instead, they run private practices, either solo or with a one or two partners, a few hygienists and some auxiliary staff. Dentists’ income is directly dependent on and determined by the number and nature of the interventions they decide to perform. This practice arrangement, and the ethical challenges it presents, is not simply an accidental circumstance in which graduating dentists unexpectedly find themselves. The ability to be an independent entrepreneur is actually one of the factors that attracts students to the field of dentistry in the first place, and the overwhelming major­ ity of graduates try to start their own practice, purchase

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the practice of a retiring dentist, or join a small private practice. More than other health professionals, dentists also tend to view other dentists in the community as competitors rather than peers. The economic law of demand and supply is a painful reality for many dentists and any new dentist coming to town is likely to have an impact on the number of patients frequenting the existing offices. This, in turn, puts pressure on dentists to attract patients by means of advertising. It also pressures dentists to diversify their practices by including more profitable cosmetic services all the way to dental spas. The cover of the February 1997 issue of the Reader’s Digest magazine stated in big bold letters ‘‘How Dentists Rip Us Off’’ and contained an article describing a journal­ ist’s journey along 50 different dentists in the United States, getting 50 different recommendations each with a different price tag ranging from nothing to almost $30000. When patients have to fear – or even if they believe they have to fear – that the treatment recommendations of their dentists are influenced by the dentists’ own financial interests, the fiduciary relationship is at risk.

Warranting Patients’ Trust Standardization of Dental Care When the 1997 Reader’s Digest article appeared, the American Dental Association was quick to point out that the criticism leveled at the profession of dentistry was unfair: of course the estimates quoted by the different dentists surveyed by the Reader’s Digest journalist differed, because the treatments proposed differed. And those treatments differed not because dentists routinely over­ treat, but because different dentists can quite reasonably come to very different treatment recommendations. In other words, the range of diagnostic assessments, prog­ nostic predictions, and therapeutic approaches tends to be very large when it comes to oral healthcare. Whereas a patient can and may expect that a dozen different oncol­ ogists will not recommend a dozen different treatments, patients should not expect such consistency among dentists. One of the explanations commonly offered for this variation is that dentistry is not an exact science, at least not as exact as oncology. Compared to oncology, rela­ tively little outcomes research has been performed in dentistry. More importantly, such outcomes research often results in multiple treatments appearing equally effective. Furthermore, effectiveness in dentistry is dependent to a large extent on the experience that any given dentist has acquired with a particular mode of therapy. Thus, therapy Z may be the most effective for condition C when performed by dentists K, L, and M, but not when performed by dentists O, P, and Q.

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All of these explanations are reasonable and fair. And yet none of them by itself suffices to dismiss the Reader’s Digest charges as biased. It may be true that relatively little outcomes research is performed in dentistry com­ pared to, for example, oncology. But why is it that so little outcomes research is performed? That dearth may well be caused, at least in part, by the individualistic character of dentistry discussed in the previous section. Dentists cher­ ish the fact that they are independent entrepreneurs who are personally responsible for the patients they accept into their practices. Consistent with this practice manage­ ment style is a clinical philosophy that emphasizes personal experience and expertise, as opposed to standar­ dized treatments according to protocols developed in large-scale scientific studies. Consider the second explanation that is commonly offered to explain the variation in treatment recommen­ dations received by the Reader’s Digest journalist. Let us grant that it was actually reasonable for the dentists quoted in that article to reach treatment plans that dif­ fered so dramatically as to warrant prices ranging from zero to $30 000 because of the nonconclusive nature of the outcomes research studies available. That should, how­ ever, not have resulted in dentist A recommending treatment X with a price tag of $250, dentist B recom­ mending treatment Y with a price tag of $8000, and dentist C recommending treatment Z with a price tag of $30 000. Instead, all three dentists should have informed the journalist that his condition could be treated effec­ tively with three different treatment modes (X, Y, and Z), each with a different price tag. After all, the principle of respect for patient autonomy demands that patients are informed about all of the reasonable treatment options available so that they can select which of these options to consent to. The third explanation points to differences in exper­ tise. Such difference is a reality and should indeed be cherished. For it is more advantageous to the public when dentist A is really good at providing treatment X, dentist B at treatment Y, and dentist C at treatment Z, as opposed to all three dentists being only modestly compe­ tent at providing all three interventions. However, this too should have been made clear in the informed consent process. Patients have the right to be informed about all effective treatment modes, not just the ones that their dentist happens to be good at. Dentist A should have informed the Reader’s Digest journalist that there are three treatments available, but that he only felt comfor­ table providing treatment X, and if his patient wished to undergo treatment Y, he would gladly refer the patient to dentist B. By not informing the journalist about different but effective and acceptable treatment modes and offering to refer the patient, the journalist could reach only two conclusions: the dentists who withheld that information

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(1) either did so unintentionally because they did not know there were other scientifically sound diagnostic assessments, prognostic predictions, and/or therapeutic approaches available, which is another way of saying that those dentists were not adequately knowledgeable about the state of contemporary dentistry; or (2) they intentionally withheld such information because they did not want to lose the patient to another dentist. Though neither amounts to ripping off the public, either charge would be rather serious. For the conclusion fol­ lows inevitably that the public should not put blind trust in their dentists but adopt a buyer-beware attitude. To phrase the same conclusion positively: it is of paramount importance for the sustenance of the fiduciary relationship between dentists and their patients that den­ tists (1) engage in outcomes research and try to establish treatment protocols so that patients can be assured that 12 dentists will not give 13 different recommendations; (2) if outcomes research remains inconclusive such that multi­ ple diagnostic, prognostic, or therapeutic modes appear to yield comparable results, patients should be informed about that fact such that they can freely choose between different treatment modes; (3) finally, if a dentist lacks the expertise to provide the mode of treatment that the patient chooses, the dentist should readily offer referral of this patient. Peer Review Related to the issue of standardization is the issue of peer review. As pointed out already, a hallmark of profession­ alism is self-regulation. The freedom from external control is a highly cherished asset. In contrast, the related responsibility to assure quality and reduce risk generally is shunned, particularly if it involves review of or blowing the whistle on one’s peers. This hesitance to evaluate the practices of one’s colleagues is understandable; it is a painful process that few professionals are eager to under­ take. But the profession of dentistry is particularly challenged in this regard because of the way dental care is structured. Whereas physicians, nurses, therapists, and pharma­ cists tend to work in larger teams, operating in an environment that fosters informal peer review, most den­ tists work in small private practices with few if any colleagues looking over their shoulders. Indeed, that is one of the features that attracts many aspiring health professionals to the practice of dentistry. Consequently, dentists often associate peer review only with resolving disputes between dentists and disgruntled patients in an attempt to keep those patients from going to court. Peer review is not seen as a preventive mechanism that can keep patients from becoming disgruntled in the first place. To make matters worse, some dentists who view other dentists in the community foremost as competitors seem

to criticize fellow dentists not for the sake of true peer review, but simply to reduce the competition. Though the magnitude of the problem is not known, it is severe enough for the American Dental Association Code of Ethics to specifically instruct dentists to report ‘‘instances of gross or continual faulty treatment by other dentists’’ (see the ADA website in Relevant Websites section) but not to make a ‘‘disparaging comment about prior services’’ to the patients involved (x4C). This article on ‘‘Justifiable Criticism’’ is followed by a lengthy and terse Advisory Opinion, urging dentists to abstain from ‘‘unknowing or unjustifiable disparaging statements against another den­ tist’’ and concluding that ‘‘where comments are made which are not supportable and therefore unjustified, such comments can be the basis for the institution of a disciplinary proceeding against the dentist making such statements.’’ The unintended consequence of this stern warning against unjustified criticism may be that it also keeps dentists from leveling justifiable criticism about substandard practices by other dentists.

Availability of and Access to Basic Oral Healthcare Many nations struggle to provide citizens with universal access to basic healthcare services. Paradoxically, even the United States, which spends more than any other nation of its gross domestic product (GDP), faces the daunting problem of a quarter of its population being uninsured or underinsured, with some 20 million people dying prematurely each year because of lack of access to healthcare. But in many countries, including again the United States, the problem of universal access is even more daunting in the area of oral healthcare. This problem has many systemic roots. They range from people in general not assigning as much importance to dental care (when compared to other forms of medical care), to insurance companies excluding dental services from their medical insurance packages, to low reimburse­ ment rates for patients on public support systems, to no such support being available at all. Lack of good dental insurance in turn may make it difficult for dentists to convince patients of the need to undergo and pay for the recommended treatment plan. The Duty to Accept Patients The reverse is also true. Some dentists refuse to accept patients into their practices when they know that the patient’s insurance does not reimburse dental treatment at prevailing market rates. When there is a shortage of dentists, they can afford to pick and choose whom they want to serve, deselecting patients who are not as

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profitable economically. But is it ethical to deselect patients based on their income? Different codes of dental ethics answer this question differently. The FDI World Dental Federation in its International Principles of Ethics for the Dental Profession insist that the dentist must provide care that is needed to alleviate an emergency or for ‘‘humanitarian reasons,’’ but otherwise ‘‘the dentist has the right to decline to treat a patient’’ (see the FDI website in Relevant Websites section). The American Dental Association has a slightly more restrictive view, confirm­ ing that dentists must always provide emergency care, but otherwise ‘‘may exercise reasonable discretion in selecting patients for their practices’’ (Section 4A). The ADA Code of Ethics also prohibits refusal of treatment solely on the basis of the patient’s race, creed, color, sex, or national origin, or the patient’s seropositive status for blood-borne pathogens such as HIV and hepatitis. Note that refusal of treatment based on the patient’s financial or insurance status is not excluded. The Canadian Dental Association (CDA) is still more restrictive. It contends that ‘‘a dentist shall remember the duty of service to the patient and therefore is responsible to provide for care to all members of society’’ (see the CDA website in Relevant Websites section). Not only does this mean that the dentist must provide emergency care; a dentist may only ‘‘refuse to accept an individual as a patient on the basis of personal conflict or time constraint.’’ It is only reasonable for dentists to refuse acceptance of additional patients when their practice is at full capacity. However, the CDA code appears to be the exception rather than the rule. Most codes of dental ethics under­ score the dentist’s right to choose whom to serve and to refuse treatment to patient categories that are not likely to be profitable or pose additional challenges such as dis­ abled patients or institutionalized patients. Apparently, treatment of vulnerable and underserved patients is gen­ erally viewed as a matter of charity, not of justice; providing such care is good and praiseworthy, but refus­ ing to do so is not morally wrong. When health professionals assert a strong individual right with regard to whom they wish to serve, this also impacts the professions’ larger contract with society. The privileged status that the profession of dentistry (and other professions) has been granted by society, including a legally protected monopoly on the practice of dentistry and the right to self-regulation, is predicated on the profession keeping its end of this social contract, which includes the provision of basic oral health care to all members in society in need of such care, or at least a united and serious effort to reach that goal. If the profes­ sion fails to be so committed, or even if the public comes to believe that the profession is not doing its utmost toward the realization of universal access to needed healthcare, it may decide to impose legally binding

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guidelines on dentists or even end the profession’s mono­ poly. Indeed, several governments have recently expanded the scope of practice of dental hygienists or created a whole new cadre of mid-level dental practi­ tioners (called dental therapists or dental technicians). It appears other governments are following suit. The Definition of Basic Oral Healthcare A different issue in the debate about universal access to basic oral healthcare concerns the definition of basic oral health care. For example, the widespread merger of cos­ metic dental services and oral healthcare services discussed earlier has made it increasingly difficult to sharply distinguish between the two. But even within the category of oral healthcare services, it is not easy to separate out basic oral health care. For most of the history of dentistry, basic oral health care was all dentists could provide. Indeed, the care ren­ dered was far below even the most minimal modern definition of basic oral healthcare, for dentists did little more than extract teeth. In the twentieth century, the science and practice of dentistry has improved dramati­ cally, enabling modern dentists to prevent caries, diagnose malignancies early, rescue traumatized teeth, realign and reshape teeth, design near natural prostheses, reposition and rebuild jaw bones, and do all of this without the patient suffering much pain in the process. Extraction is still an option and sometimes the only option. But in most instances, it is unnecessary and may even be considered medical malpractice. However we define basic dental care, most dentists will insist that it cannot be treatment that falls short of the standard of dental care. An unintended consequence of the dramatic and ongoing rise in the standard of care is that basic oral healthcare is no longer within reach of certain patient categories. This may be because oral healthcare that meets the modern standard of care is no longer affordable. It may be because institutionalized patients are not able to come to the dental office, the only place where modern, high-tech dental care can be rendered. It may be because the patient is an illegal immigrant who fears coming back for the return visits that are needed to complete the multiphasic treatment plan. It may be because the Alzheimer’s patient is unable to understand the significant changes that are going to happen to her dentition and would experience the improvements as an alienation from her own mouth instead. These unintended exclusions require that a more flex­ ible standard of care be developed with different standards applying to different patient categories. The same treatment plan that is truly beneficial for an other­ wise healthy and independent 75-year-old patient may not be beneficial for the institutionalized elder who is suffering from Alzheimer’s dementia. In fact, if such

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treatment were to result in significant discomfort or, worse, alienation, it would be harmful for that patient, regardless of whether it is technically the most advanced treatment and executed with near perfection. Conversely, a much simpler, technically less advanced intervention that would constitute malpractice in the former patient may be the optimal treatment plan for the latter patient. See also: Advertising; Altruism and Economics; Cosmetic Surgery; Health and Disease, Concepts of; Professional Ethics.

http://www.cda-adc.ca/en/cda/about_cda/code-of-ethics/ index.asp – Code of Ethics. http://www.dlef.co.uk/ – Dental Law & Ethics Forum (UK). http://www.ideals.ac – International Dental Ethics and Law Society. http://www.fdiworldental.org/ – International Principles of Ethics for the Dental Profession. http://www.ada.org/194.aspx – Principles of Ethics and Code of Professional conduct.

Biographical Sketch Further Reading Beemsterboer PL (2009) Ethics and Law in Dental Hygiene (2nd edn.), Philadelphia: WB Saunders. Davison JA (2000) Legal and Ethical Considerations for Dental Hygienists and Assistants, St. Louis: Mosby. Kimbrough VJ and Lautar CL (2007) Ethics, Jurisprudence and Practice Management in Dental Hygiene (2nd edn.), Upper Saddle River NJ: Prentice Hall. Lambden E (ed.) (2002) Dental Law and Ethics, Abingdon (UK): Radcliffe Medical Press. Ozar DT and Sokol DJ (2002) Dental Ethics at Chairside: Professional Principles and Practical Applications (2nd edn.), Washington DC: Georgetown University Press. Rule JT and Bebeau MJ (2005) Dentists Who Care. Inspiring Stories of Professional Commitment, Chicago: Quintessence. Rule J and Veatch RM (2004) Ethical Questions in Dentistry (2nd edn.), Chicago: Quintessence. Welie JVM (ed.) (2006) Justice in Oral Health Care. Ethical and Educational Perspectives, Milwaukee: Marquette University Press.

Relevant Websites http://www.acd.org – American College of Dentists. http://www.societyfordentalethics.org – American Society for Dental Ethics.

Jos V.M. Welie studied medical sciences and law at the University of Maastricht and philosophy at the Radboud University of Nijmegen, both in The Netherlands. A Fulbright grant brought him to Loyola University of Chicago’s Department of Medical Humanities. Subsequently, he started specializing in medical ethics. He obtained his doctorate in medical ethics from the Radboud University of Nijmegen Faculty of Medical Sciences. His areas of primary interest include ethical issues in chronic and terminal care, Jesuit invol­ vement in health sciences education, dental ethics, the philosophical foundations of clinical ethics, the human body and person, and the relationships between law and ethics. In addition to teaching medical ethics at Creighton University’s School of Medicine, Dr. Welie is also a Professor in the Graduate School and the School of Dentistry Department of Community and Preventive Dentistry. Dr. Welie is the Founding Secretary of the International Dental Ethics and Law Society. He has (co-)authored or edited some 175 publica­ tions, including eight books. His most recent books are Death and Medical Power. An Ethical Analysis of Dutch Euthanasia Practice (With H ten Have; Open University Press, 2005) and Justice in Oral Health Care. Ethical and Educational Perspectives (Marquette University Press, 2006).

Developing World Bioethics D B Resnik, National Institutes of Health, Triangle Park, NC, USA Published by Elsevier Inc.

Glossary Ethical relativism The belief that ethical obligations, duties, or rights vary according to cultural, social, or economic conditions. Exploitation Taking unfair advantage of a person, community, or population. Genetically modified crop A crop that has been genetically engineered to display desired traits, such as herbicide resistance, drought resistance, or enhanced nutritional value. Informed consent The process in which a human research subject (or the subject’s legal representative)

Background Ethical, legal, political, and social issues related to the impacts of biomedicine and biotechnology on the devel­ oping world emerged as a topic of major concern for bioethicists during the late 1990s, when researchers, humanitarians, political advocacy groups, and others raised the public’s awareness about practices and policies that adversely affected the rights, welfare, and dignity of people living in impoverished countries. There was a growing recognition that many clinical trials conducted in the developing world were exploiting individuals and communities, and that ethical principles accepted by many nations were not being upheld in the developing world. Though bioethicists have paid attention to these and other difficult issues for a little more than a decade now, the underlying problems and concerns have a his­ tory that predates current debates by 600 years. In thinking about bioethics issues in the developing world, it is also important to consider the social and economic conditions that currently prevail in these countries. Although there is no commonly accepted definition of a developing nation, for the purposes of this discussion a developing nation is a country that lags far behind other countries with respect to key socio­ economic indicators, such as gross domestic product, average income, infant mortality, and average life expec­ tancy. Developing nations are often burdened by poverty, unemployment, famine, civil wars, and infec­ tious diseases. The situation in sub-Saharan Africa is especially grim, where 25 million people are infected with HIV/AIDS, 2 million of whom are children,

makes a free and informed choice to participate in a research study. Patent A privilege granted by the government that allows the inventor of an invention to exclude others from using, making, or commercializing the invention for a limited period of time, usually 20 years. Placebo A chemically inactive substance given to a patient or research subject instead of an active treatment. Randomized, controlled trial A clinical research study enrolling human subjects in which individuals are randomly assigned to an experimental treatment group or one or more control groups.

17 million people have died from HIV/AIDS, leaving behind 12 million orphans, and 900 000 people die from malaria each year, 100 000 of whom are children. Twenty percent of all childhood deaths in sub-Saharan Africa are due to malaria. Diarrheal diseases, such as cholera and rotavirus, also take a heavy toll: Over 2 million people in developing nations die from diarrheal diseases each year, 500 000 of whom are chil­ dren. Diarrheal diseases are the second leading cause of death in children under age 5 in developing countries. Other diseases that place a heavy burden on people living in developing nations include tuberculosis, measles, yellow fever, Chagas disease, and river blindness.

Controversial Perinatal HIV Prevention Trials The bioethics community started to pay more attention to ethical issues in the developed world when a contro­ versy erupted concerning clinical trials to prevent the perinatal (mother–child) transmission of HIV. Peter Lurie and Sidney Wolfe, both members of Public Citizen’s Health Research Group, published an article in the New England Journal of Medicine in which they argued that 15 clinical trials conducted in Coˆte d’Ivoire, Uganda, Tanzania, South Africa, Malawi, Thailand, Ethiopia, Burkina Faso, Zimbabwe, Kenya, and the Dominican Republic were unethical. Marcia Angell, the editor of the journal, published an editorial supporting Lurie and Wolfe’s conclusions in which she

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compared the trials to the infamous Tuskegee Syphilis Study. Angell also opined that the trials exhibited a double-standard: one for the developed world and one for the developing world. Harold Varmus, Director of the National Institutes of Health (NIH), and David Satcher, Director of the Centers for Disease Control and Prevention (CDC), published an article in a subse­ quent issue of the journal rebutting the charges made by Lurie, Wolfe, and Angell. The debate continued for several years in the pages of prominent bioethics and biomedical journals, such as Science, British Medical Journal, American Journal of Public Health, Hastings Center Report, Bioethics, Kennedy Institute of Ethics Journal, Journal of Law, Medicine, and Ethics, and American Journal of Bioethics. The controversial studies had several sponsors and collaborating institutions, including the NIH, CDC, World Health Organization (WHO), and the UN Joint Program on HIV/AIDS, as well as local governments. Three years prior to the publication of Lurie and Wolfe’s article, the New England Journal of Medicine had published the results of the AIDS Clinical Trials Group (ACTG) Study 076, which showed that a treatment regi­ men involving the administration of the antiretroviral drug zidovudine (AZT) to pregnant, HIV-positive women during pregnancy and labor, and to their infants for 6 weeks following birth, reduces the rate of perinatal transmission of HIV from 25% to 8%. The ACTG regi­ men soon became the standard of care for treating HIVpositive pregnant women in developed nations, but it was seldom implemented in developing nations, due to its exorbitant costs and administrative complexities. The ACTG regimen required the administration of approxi­ mately $800 worth of AZT (in 1996 U.S. dollars), which was far greater than the per capita income in many devel­ oping countries. Investigators and representatives from the sponsors and collaborators designed a clinical trial to determine whether administering cheaper and simpler alternatives to the ACTG regimen would be effective at preventing the perinatal transmission of HIV. The goal of finding a therapy that would reduce the risk of genetic toxicity was another important factor in the study design, since antiretroviral drugs may cross the placenta and induce genetic mutations in the fetus that manifest them­ selves later in life. In three studies conducted in the United States, all patients had access to antiretroviral drugs. In 15 of the 16 studies conducted in developing countries, some of the patients did not have access to antiretroviral drugs. Several of these studies included placebo control groups. A year after the beginning of the trial, investigators were able to demonstrate that admin­ istration of one-tenth of the amount of AZT used in the ACTG regimen in the last 4 weeks of pregnancy reduced the rate of perinatal HIV transmission by 50%.

Placebo Control Groups Critics of the trial argued that it was unethical to include placebo control groups, because administration of AZT was a proven, effective therapy, and it is unethical not to offer patients/subjects an effective therapy when one exists. According to the critics, clin­ ical investigators, as practicing physicians, have an ethical obligation to provide their patients/subjects with optimal medical care. Investigators can enroll patients/subjects in a randomized, controlled trial only when the different treatment groups are in clinical equipoise, i.e., it is not known which treatment is more effective prior to initiating the trial. Placebo con­ trol groups may be used in research with human subjects only when it is not known whether there is a therapy for the patient’s condition that is more effective than a placebo. Since AZT was known to be an effective therapy, critics argued that the 15 placebo-controlled studies should have used active control groups, i.e., groups that receive an effective therapy. The stu­ dies could be designed to compare the effectiveness of different doses of AZT, for example. Defenders of the disputed studies argued that placebo control groups were necessary to obtain scientifically rigorous results in a relatively short time with limited resources. Active control trials would require much larger sample sizes (and therefore more time and resources) than placebo control trials because they would be attempting to detect smaller differences between treatment groups. Using placebo control groups, the trials were successfully completed in a year. With no placebo groups, it would have taken much longer, according to defenders of the disputed trials, who also argued that patients/subjects in the placebo control groups were not receiving suboptimal care, because AZT was not available to most people in the countries in which the studies took place, due to eco­ nomic conditions. Physicians do not have an obligation to provide medical care that is not ordinarily available in a particular country. The standard of care for medicine must reflect local conditions. The issue of whether it is acceptable to use a placebo control group in a clinical trial in a developing nation (or any other nation) when an effective therapy exists is far from settled. This placebo debate reflects a deeper divide concerning the relationship between a clinical investigator and a patient/subject. Those who take a restrictive approach to the use of placebo control groups argue that the clinical investigator’s therapeutic obligations to the patient/subject are primary and that the investigator should always provide the patient/subject with optimal medical care. Those who take a less restrictive approach to the use of placebos in research argue that the ethics of clinical research are different from the ethics of clinical medicine. Clinical

Developing World Bioethics

investigators can use placebos in research, provided that patients/subjects consent to research participation and are protected from excessive risks. Two influential international guidelines for research with human subjects, the World Medical Association’s Helsinki Declaration and the Council for the International Organization of Medical Science’s (CIOMS) International Ethical Guidelines for Biomedical Research Involving Human Subjects, both include statements concerning the use of placebos in research. The Helsinki Declaration takes a restrictive approach to the use of placebo control groups, while the CIOMS Guidelines take a less restrictive approach. The Helsinki Declaration allows placebo control groups only when no proven treatment exists or when there are sound metho­ dological reasons for conducting the study and subjects in the placebo groups will not be subjected to serious risks or irreversible harm. The CIOMS Guidelines allow for the use of placebo controls in these circumstances and also when an effective therapy is not available in a host coun­ try for the foreseeable future, due to economic or logistic reasons, provided that adequate protections are in place to prevent harm to patients/subjects.

Exploitation The controversial HIV prevention trials highlighted another important issue in research ethics in developing nations: exploitation. Some critics argued that the inves­ tigators and sponsors of the disputed studies exploited the research subjects and host communities because the trials did not provide them with a fair share of the benefits of research. They argued that even $80 worth of AZT would be beyond the reach of many of the people in the host countries who needed it. Thus, the investigators and sponsors would receive substantial benefits from the stu­ dies but the subjects and their communities would receive few benefits in return. They were also concerned that the HIV prevention studies would encourage additional drug testing in developing nations by pharmaceutical compa­ nies, which could lead to even more egregious exploitation. Since the late 1990s, pharmaceutical com­ panies have become much more involved in clinical research in developing nations, such as India, China, South Africa, Nigeria, Kenya, Mexico, and Brazil. Many commentators and organizations have become concerned that companies are taking advantage of cheap human labor and lenient (or nonexistent) research regulations to save money and conduct research that might not be allowed in the United States or other developed nations. Companies are outsourcing clinical trials to the develop­ ing world and exploiting human subjects and local populations.

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Defenders of the HIV prevention trials argued that they were not exploitative. Indeed, the trials were intended to be the paradigm of fair benefit sharing, since the trials were designed to develop a therapy to address an important public health problem in developing nations. Although $80 worth of AZT might be beyond the reach of many people who need it, it would be much easier to obtain than $800 worth of AZT. Concerning the trend of increased pharmaceutical research in the devel­ oping world, defenders of the HIV prevention studies could point out that this trend was well underway before the controversial studies began and that decisions made by the NIH, CDC, WHO and other organizers probably had little effect on pharmaceutical companies. Exploitation is another disputed topic in research ethics. Debates about exploitation reflect a deeper divide concerning social justice and the obligations of developed nations toward developing nations. There are many different accounts of exploitation, ranging from libertar­ ian approaches to egalitarian ones and socialist/Marxist theories. According to libertarians, a transaction or rela­ tionship between two people is exploitative only if it involves harm or lack of consent. If a person consents to and benefits from a transaction or relationship, then it is not exploitative, even if the benefits are distributed unfairly. Research in the developing world is not exploi­ tative, in this view, if human subjects are not harmed and they consent to research participation. In the libertarian approach, it would be acceptable for a pharmaceutical company to conduct clinical research on a drug that is not likely to offer significant benefits to the subjects or community (e.g., a medication for erectile dysfunction), provided that the subjects are not harmed and they agree to participate in the study. According to egalitarians, a transaction or relationship that unfairly distributes benefits is exploitative, even if the parties consent and mutually benefit. Thus, research in the developing world that does not provide subjects and/ or communities with a fair share of benefits is exploitative. Determining what counts as a fair share of the benefits of a transaction or relationship can be a difficult problem for this approach. Some writers have maintained that a fair share of the benefits of research conducted in developing nations could include access to medications developed as a result of the research, medical care not related to parti­ cipation in research (incidental or ancillary care), strengthening the healthcare infrastructure of the com­ munity, sharing in the profits from intellectual property, or providing public education. Socialist approaches argue that exploitation cannot be understood or addressed only by focusing on particular transactions or relationships. To understand and address exploitation, the social context must also be considered, because the social context can affect the bargaining power of the parties. Research subjects and communities in the

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developing world may not be able to reach fair agree­ ments with investigators and sponsors due to their poverty, poor health, and cultural or linguistic barriers, which can undercut their bargaining power. To ade­ quately address the social context of research, it may be necessary for sponsors and investigators not only to share benefits but also to support various activities related to economic or social development, such as improving the educational, agricultural, or healthcare systems. The Helsinki Declaration and the CIOMS Guidelines address some topics related to preventing or minimizing exploitation in research. The Helsinki Declaration requires that research involving vulnerable or disadvantaged populations or communities should be responsive to the needs of the population or community, and there must be a reasonable expectation that the population or community will benefit from the research. The Declaration also requires that at the conclusion of a study, subjects are entitled to share in any benefits that result from it, such as access to new treatments identified by the study or appropriate medical care. The CIOMS Guidelines require that investigators and sponsors take steps to help strengthen the capacity of host countries to review research, when the countries lack those capaci­ ties. Capacity-building activities may include helping to establish or fortify ethical review committees, develop­ ing healthcare technologies, improving healthcare infrastructure, and educating the community. Sponsors are also required to ensure the availability of healthcare services necessary to conduct biomedical research and to treat subjects who are injured in research. Sponsors also have an obligation to make a healthcare product or service developed as a result of the research reasonably available to the population or community. The CIOMS Guidelines also mention that sponsors are not required to provide care for incidental conditions unrelated to the study or post-trial access to medications, though it is morally desirable that they do.

Informed Consent The controversial HIV prevention trials raised a third issue related to the ethics of research in developing nations: informed consent. Critics charged that subjects in the disputed studies did not make informed choices of their own accord because they did not fully understand the research and they had little access to medical care other than participating in a study. Many subjects enrolled in the trial, according to critics, because they thought they would receive treatment that would pre­ vent their infants from developing HIV/AIDS. They did not understand that they might not receive treatment to prevent transmission of HIV. Defenders of the trials rebutted these charges by claiming that steps were

taken to ensure that the subjects were fully informed, such as the use of interpreters, consent documents trans­ lated into the language of the host country or population, and community liaisons to help with the consent process. This article cannot settle the dispute of whether informed consent was adequate in these HIV prevention trials. However, it is important to observe that the underlying issues are a perennial concern in research conducted in developing nations, because there are many different factors that can make it difficult to obtain consent. First, the research subjects and the investigators may speak a different language, even when the investi­ gators are from the host country. In many African and South American countries as well as in Indonesia, there are languages unique to local populations as well as local variations of common languages. Investigators must take great care to ensure that consent documents are properly translated and that interpreters have the requisite local knowledge. Second, many populations in these countries have no written language, so the usual methods of doc­ umenting consent may need to be altered. For example, if the subject does not sign a consent form, oral commu­ nications between investigators and subjects could be witnessed and documented by a third party. Third, populations from developing nations may not under­ stand key concepts in clinical research and modern medicine, such as randomization, double-blinding, pla­ cebos, human rights, causation, experimentation, and the difference between research and therapy. Fourth, the idea of individual consent may be alien to people living in villages or tribes in which permission needs to be obtained from local leaders or a council of elders for medical care or other activities. Members of an African tribe may not understand that they can decide not to participate in a study even if it has been approved by tribal leaders. Investigators and sponsors need to address these and other potential barriers to informed consent in developing nations and work with local com­ munity representatives in recruiting human participants, in developing consent documents, and in designing and implementing research. The CIOMS Guidelines and Helsinki Declaration address some of these issues concerning informed consent. The Guidelines recommend that investigators respect local customs concerning consultation with com­ munity leaders, but that under no conditions should the consent of a leader be substituted for the consent of the individual subject. The Guidelines also recommend that investigators develop culturally appropriate ways of communicating with research subjects and that sponsors provide funds for sufficient resources (such as inter­ preters and liaisons) to ensure that consent is legitimately obtained. The Helsinki Declaration states that when consent cannot be expressed in writing, oral consent must be documented and witnessed.

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Local Variations in Research Ethics A fourth issue raised by the controversial HIV prevention trials is whether ethical standards should be universal or local. Critics argued that placebo controls should not have been used because the same standards of research ethics that apply in developed nations should apply in develop­ ing ones. If using placebo controls is unethical in Boston, it should also be unethical in Botswana. Investigators and politicians from some of the developing nations in which the trials took place responded to this argument by claim­ ing it was a form of ethical imperialism. Ethical standards must take into account local circumstances, such as cul­ ture, language, politics, and economics. Placebo control groups can be acceptable in a developing nation if they are necessary to develop effective treatments that are also affordable. The question of whether ethical standards should reflect local circumstances is a meta-ethical issue that transcends the controversy surrounding the perinatal HIV prevention trials. Since the 1960s, philosophers, anthropologists, and other scholars have engaged in a vigorous debate concerning ethical relativism. Many phi­ losophers have argued that ethical standards are rules that would be accepted by any rational person and therefore ought to apply universally. Anthropologists have coun­ tered that ethical standards are not universal because there are significant variations in social norms among different cultures, and that rationality is a culturally defined concept. For example, different cultures have different norms concerning sexual conduct, the status of women, and punishment. Proponents of ethical univers­ alism have confronted this empirical evidence by remarking that ethical standards are intended to be nor­ mative ideals that are independent of descriptions of human behavior. One cannot make inferences about how people ought to behave from observations of how they do behave. From the fact that many people cheat on their income taxes, one cannot infer that they ought to cheat. Opponents of universalism have challenged the idea that normative ideals are independent of descriptions of human behavior. Ethical standards must be based on facts concerning human behavior, psychology, and social organization. Thus, facts about cultural variations in social norms could have some bearing on ethical standards. Some philosophers have navigated through the horns of the universalism vs. relativism dilemma by conceding that there are some local variations in social norms that shape ethical standards but arguing that there are still some core ethical principles that apply to all cultures or societies, such as respect for human life, respect for property, honesty, justice, and beneficence. These core principles are universally accepted because they are

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necessary for social cohesion and survival. A society would soon break down if its members lost all respect for human life, for example. Core ethical principles may be applied and interpreted differently in different socie­ ties, but they still hold. For example, the United States and Singapore may have very different legal systems, but they both share a commitment to justice. This strategy for dealing with the universalism vs. relativism conundrum may also apply to the ethics of research with human subjects. One could argue that there are some core ethical principles that apply to human research, such as respect for persons, beneficence, and justice, but that these principles may be interpreted and applied differently in different cultures or societies. For example, providing human subjects with an informed consent document may be an important part of respecting persons in the United States, but not in a society in which there is no written language. Community consultation may be an important part of respecting persons and pro­ moting justice in an African village, but not in a suburb of Atlanta. Thus, ethical standards for research with human subjects can be universal in scope but still take local circumstances into account.

Drug Development and Intellectual Property The lack of affordable medications to treat diseases that place a high burden on developing world populations was another issue raised by the controversial HIV prevention trials. The high cost of AZT was a major factor in the trial design: If AZT had been affordable, there would have been little need to conduct an experiment to determine whether a protocol for preventing perinatal HIV trans­ mission using much less AZT than used in the ACTG regimen would work. Drug prices have been a major impediment to treating and preventing diseases that greatly impact developing world populations, such as HIV/AIDS, malaria, dysentery, and tuberculosis. HIV/ AIDS activists, medical organizations, and human rights groups have blamed pharmaceutical companies for con­ tributing to the developing world’s ills by charging high prices for their products, and they have vented their frustration through protests, editorials, and lobbying. They have argued that high drug prices for life-saving medications are immoral and inhumane. Governments from the developing world have also expressed their dis­ pleasure with the high price of medications, and some have overridden or circumvented drug patents to ensure that their populations have access to affordable medica­ tions. Pharmaceutical companies have defended their prices as necessary to recoup their investments in research and development (R&D). To assuage the public

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and demonstrate a sense of social responsibility, some companies lowered their prices in developing nations and participated in drug giveaways. Deciding what counts as a fair (or ethical) price for a drug is a complex economic, social, and moral issue. The main purpose of the patent system is to promote scientific discovery and technical innovation by rewarding inven­ tors for ingenuity and encouraging private firms to support R&D. In most countries, patent holders have 20 years of legal protection, during which time they have a right to exclusive control over the manufacture, commer­ cialization, and use of their invention. The patent application becomes a public record when the patent agency awards the patent, so that others may learn from the inventor. According to some estimates, it costs any­ where from $100 to $800 million to develop and test a new drug and bring it to market. Since the R&D process takes about 10–12 years, most drugs are under patent protection for only 8–10 years. Once a pharmaceutical patent expires, other companies can make generic ver­ sions of drug, which will greatly reduce the original company’s market share and profits. Drug companies have warned that without an 8- to 10-year window of market exclusivity provided by patents, they would greatly reduce their investments in R&D. Currently, pri­ vate companies sponsor over 60% of all the biomedical R&D in the world. It is doubtful that governments or private foundations could compensate for the loss of biomedical R&D funding if private companies greatly reduced their share. The most plausible critique of patenting recognizes that patents play a key role in stimulating discovery and innovation in biomedicine and biotechnology, but it is sometimes claimed that there should be exceptions to patent protection that allow countries to respond to national emergencies, such as the HIV/AIDS pandemic or other public health crises. Indeed, the Trade Related Aspects of Intellectual Properties (TRIPS) agreement, which has been adopted by members of the World Trade Organization (WTO) includes provisions that allow countries to override or circumvent patents to address national emergencies. Developing nations pressed for inclusion of this provision in the agreement to minimize the harms that could result from protecting intellectual properties belonging to developed nations. Although the emergency exception in TRIPS is a reasonable policy tool, great care must be taken to ensure that it is not abused. Countries should invoke the exception to address legitimate emergencies, not to reduce drug prices in general or punish private companies. To safe­ guard the integrity of global markets, countries that make use of the emergency exception should not export products resulting from patents they have overridden or circumvented.

Environmental Ethics Before concluding this article, it is important to mention environmental ethics issues pertaining to developing nations that have generated some debate. Genetically modified (GM) crops, such as corn, wheat, potatoes, soybeans, rice, and tomatoes, have been on the market since the 1990s. Genetic modification differs from conventional methods of altering plants, such as selective breeding, because it involves the insertion of genes into the plant’s genome. Genetic engineers have developed plant varieties with genes that enhance nutritional content or shelf-life, confer resistance to herbicides or pesticides, or produce proteins that are toxic to some insect species. For example, Golden Rice is rice engineered with genes that increase production of vitamin A; Bt corn is a variety of maize that contains toxins from the Bacillus thuringiensis bacterium, which becomes toxic in the guts of some types of moths and beetles; and Roundup-ready crops are plants that are resis­ tant to Monsanto’s widely used herbicide known as Roundup. GM crops have been controversial, especially in Europe. The European Union (EU) banned GM crops from 1998 to 2007. Though the EU has lifted its ban, it has initiated mandatory labeling of GM foods. Austria and Hungary have banned GM crops. The United States has not banned GM crops or enacted mandatory labeling requirements. Opponents of GM crops argue that they pose risks to human health, that are not well understood, and that they have no advantages over traditional food crops. Though most agricultural researchers believe that GM foods are just as safe as traditional foods, some studies have shown that GM foods can produce toxic effects in rodents. The long-term effects of consuming GM foods are unknown. Opponents also argue that GM crops can threaten the environment if genetically modified plants breed with native plants and introduce new genes into the population, or escape from the cultivation area and become invasive species. Proponents of GM crops argue that they are just as safe as traditional food crops and that environmental disruption can be minimized. Proponents also contend that genetic modification can increase the efficiency of agricultural production and reduce the use of pesticides and herbicides. GM crops have also generated controversies in devel­ oping nations. Many developing nations face the prospect of massive starvation and malnutrition each year. GM crops could help developing nations deal with these pro­ blems by increasing agricultural productivity. However, many developing nations have not been receptive to GM crops. Some nations, such as Zambia, have decided to ban GM crops for public health and economic reasons. Zambian leaders are worried that allowing GM crops into their country will affect their agricultural exports to

Developing World Bioethics

European countries, which may decide to not purchase food from Zambia if GM crops are grown there. Zambia also rejected thousands of tons of corn donated by the United States because it was likely to contain GM kernels, which placed over 2 million people at risk of starvation. Other developing nations have accepted GM crops but have become frustrated by intellectual property protections asserted by seed companies. Farmers in the developing world usually save seeds from their crops for future plantings, so they do not have to buy seeds each year. Seed companies have claimed that this practice violates the terms of their licensing agreement and they have sued farmers for growing crops from saved seeds. To help enforce their licensing agreement, some seed com­ panies have inserted terminator genes into their crops, which make seeds produced by the plants sterile. Global climate change is another environmental ethics issue of special concern for developing nations. Most scien­ tists agree that the global surface temperatures have increased from 0.5 to 1.0 � C since the twentieth century and that temperatures will continue to rise 1–5 � C during the twenty-first century. The production of greenhouse gases (primarily carbon dioxide and methane) by human activities is a major cause of global warming. Reducing emissions of greenhouses gases may help to prevent or mitigate additional warming. According to some studies, developing nations may bear a disproportionate share of the adverse impacts of global climate change. Many devel­ oping nations have large populations living near the coastline, which will be impacted by rising sea levels and tropical storms. Infectious diseases, heat waves, flooding, and droughts caused by global warming will also take their toll on developing nations. Though global warming will also have adverse impacts on developed nations, more advanced countries may be better able to adapt to climate change than less advanced ones, because they have more resources. Although developing nations have good reasons to try to help prevent or mitigate global warming, they also are interested in developing their economies. The reductions in greenhouse gas emissions required by international treaties, such as the Kyoto Agreement, may undermine the economic growth of developing nations. Some devel­ oping nations, such as China and India, have argued that it is unfair to require them to reduce their greenhouse gas emissions, because developed nations are largely respon­ sible for causing climate change. Many developing nations are now undergoing the process of industrializa­ tion, but developed nations industrialized many years ago and produced most of the greenhouse gases that have brought about climate change. Developed nations have responded to this argument by claiming that all countries need to do their part to prevent or mitigate climate change. Though nations are not equally responsible for

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causing the problem, they are equally responsible for addressing it.

Acknowledgments This research was supported by the Intramural Program of the National Institute for Environmental Health Sciences (NIEHS), National Institutes of Health (NIH). It does not represent the views of the NIEHS, NIH, or the U.S. government. See also: Exploitation; Human Research Subjects, Selection of; Informed Consent; Intellectual Property Rights; Moral Relativism.

Further Reading Angell M (1997) The ethics of clinical research in the third world. New England Journal of Medicine 337: 847–849. Benatar S (2002) Reflections and recommendations on research ethics in developing countries. Social Science and Medicine 54: 1131–1141. Council for International Organizations of Medical Sciences (CIOMS) (2002) International Ethical Guidelines for Biomedical Research Involving Human Subjects. Geneva, CIOMS. http://www.cioms.ch/ (accessed August 2010). Jegede A (2009) Understanding informed consent for participation in international health research. Developing World Bioethics 9: 81–85. London A (2001) Equipoise and international human subjects research. Bioethics 15: 312–332. London A (2005) Justice and the human development approach to international research. Hastings Center Report 35: 24–37. Lurie P and Wolfe S (1997) Unethical trials of interventions to reduce perinatal transmission of the human immunodeficiency virus in developing countries. New England Journal of Medicine 337: 853–856. Macklin R (1999) International research: Ethical imperialism or ethical pluralism? Accountability in Research 7: 59–83. Pinstrup-Andersen P and Schiøler E (2001) Seeds of Contention: World Hunger and the Controversy over GM Crops. Washington, DC: International Food Policy Research Institute. Resnik D (1998) The ethics of HIV research in developing nations. Bioethics 12: 285–306. Resnik D (2001) Developing drugs for the developing world: An economic, legal, moral, and political dilemma. Developing World Bioethics 1: 11–32. Shah S (2006) Body Hunters: How the Drug Industry Tests Its Products on the World’s Poorest Patients. New York: New Press. Varmus H and Satcher D (1997) Ethical complexities of conducting research in developing countries. New England Journal of Medicine 337: 1000–1005. White M (2007) A right to benefit from international research: A new approach to capacity building in less-developed countries. Accountability in Research 14: 73–92. World Medical Association (2004) Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects. http:// www.wma.net/e/policy/b3.htm. (accessed August 2010).

Relevant Websites http://www.wma.net/en/30publications/10policies/b3/ index.html – World Medical Association, Helsinki Declaration.

778 Developing World Bioethics http://www.cioms.ch/ – Council for the International Organization of Medical Science’s International Ethical Guidelines for Biomedical Research Involving Human Subjects.

Biographical Sketch David B. Resnik, J.D., Ph.D. is a Bioethicist and Chair of the Institutional Review Board at the National Institute of

Environmental Health Sciences (NIEHS), National Institutes of Health (NIH). He has published 7 books and 160 articles in ethical, legal, and philosophical issues in science, medicine, and technology. He is the associate editor of Accountability in Research and an Adjunct Professor of Philosophy at North Carolina State University. Prior to joining the NIEHS in 2004, he was a Professor of Medical Humanities at the Brody School of Medicine at East Carolina University (1998–2004) and an Associate Professor of Philosophy at the University of Wyoming (1990–98).

Development Ethics N Dower, University of Aberdeen, Aberdeen, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Aid Transfer of resources on noncommercial terms (as grants or concessionary loans), either by governments or by individuals’ donations to promote development in poorer countries (the South) or to alleviate absolute poverty. Development (1) A process of socioeconomic change, which is the object of public policy and planning. (2) (Less specifically) a process of change in a society which ought to happen (e.g., from a worse state to a better state) – in certain respects parallel to the earlier idea of progress. Distributive justice Principle of social justice that requires that resources and wealth should be so distributed as to meet the needs of all people in a society or in the world as a whole. Economic growth One measure of development in a country enabling its inhabitants to have access to a

Introduction As a self-conscious area of academic enquiry, development ethics is of very recent origin (some 25 years standing), and its emergence more or less parallels the establishment of the International Development Ethics Association (1984), which has helped give some public identity to it. This is not to say that individual thinkers such as Louis-Joseph Lebret and Denis Goulet were not talking about ethical or value issues in development or even using the phrase ‘‘development ethics’’ for some while before that. Indeed the central questions with which development ethics deals – having to do with the nature of the good life, the principles underlying an appropriate social order, and the ethical demand for change – have been around ever since enquiry into the human condition began. Although, as we shall note later, the range and complex­ ity of the issues covered by development ethics has enlarged, it essentially emerged from critical ethical reflec­ tion on the process of socioeconomic development in poorer countries (variously called underdeveloped, devel­ oping, the South), which since the Second World War were seen as the object of international aid programs. As Goulet, a pioneer in the field of development ethics, put it, devel­ opment ethics is concerned with ‘‘the ethical and value questions posed by development theory, planning and practice’’ (Goulet 1977: 5). It includes both a consideration of the what of development (the kinds of goods/benefits)

materially higher standard of living. Economic growth is the central feature of the dominant paradigm of development, a paradigm often rejected by development ethicists. North–South relations The relations between richer countries in the industrialized economically developed countries of the world (the North) and poorer economically developing countries (the South). Ethical issues are raised, usually from the perspective of global ethics that postulates cosmopolitan obligations, both about aid programs and about the general trading and investment policies of the North in the South. Well-being The condition in a human being of flourishing. This is a central normative standard by which development should be defined, about which rival ethical theories provide different accounts.

and the how of development (the kinds of rights/wrongs associated with processes of social change). As the later discussion will illustrate, from the point of view of those who see themselves engaged in develop­ ment ethics, nearly all discourse about development, including that of the dominant paradigms that stress eco­ nomic growth at the core of development, is implicitly if not explicitly normative or evaluative in character. But it is characteristically those who for one reason or another have become dissatisfied with what is done and pursued in the name of conventional development, who actually see themselves engaged in development ethics. In this article, we first consider the conventional paradigm of development and then outline the various alternative paradigms adopted by development ethicists. We then examine the philosophical foundations of these conceptions of development, and finally examine the ethi­ cal issues that arise when we see development in the global context of aid, global economic relations, and globalization.

What is Development? The Dominant Paradigm In the dominant view of the last 50 years, the key question has been primarily about the processes of socioeconomic change within economically poorer countries (developing countries/the South). There have in fact been two

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concerns of the international community since the Second World War. First, enabling the poorer countries to catch up with industrialized countries and thus reduce the gap between the industrialized world and the nonindustrialized world; and second, tackling absolute poverty. It was gen­ erally assumed that the two went together and mutually supported each other (at least in the long run). Because both goals were clearly desirable and matters of general consensus in the international community, the ethical basis of it all was, if reflected on at all, seen as self-evident. What then dominated thinking and planning were economic growth models. General improvements in the economy of poor countries will lead to reduction in inequalities between countries and reduction of extreme poverty. This is not to deny that there were various rival theories about how best to achieve this, and as the devel­ opment decades progressed, different theories took precedence. An early approach (still favored by some) was one according to which general economic growth will benefit everyone, including the very poor, by a pro­ cess in which wealth, largely stimulated in the richer sectors, spreads or trickles down to all in society (a mod­ ern variant of Adam Smith’s hidden hand mechanism). However, others felt that this needed to be modified because it was evident that poverty reduction did not auto­ matically follow from economic growth without some kind of intervention or direction from central institutions such as governments. Modifications (within mainstream develop­ ment economics/studies) of this economic growth model included growth with equity (i.e., growth with mechanisms, generally state-directed ones, to redistribute wealth in favor of the poor) and basic needs theories, again targeting the poor with programs designed to meet basic needs. Because the goals (overall growth and poverty allevia­ tion) were seen as self-evidently good and mutually supportive, the mainstream debates about models of devel­ opment were not usually seen as ethical debates or as involving development ethics. Rather, the various debates about rival models were seen primarily as debates about appropriate means to the same goals, that is, debates about what types of policies, institutions and so on did as a matter of fact achieve the twin goals most effectively. Much debate in development thinking was about causal issues (and this remains true to this day). But the positions adopted were in fact also informed by ethical assumptions, and these were made more explicit as challenges to them emerged.

Questioning the Dominant Paradigm By the beginning of the 1980s, both philosophers outside development studies and some within the field (such as, notably, Amartya Sen) were self-consciously questioning the ethical foundations of development, both about the appropriate means of pursuing it and about the

appropriate ends of development. In varying degrees, these enquiries questioned the dominant paradigm.

Normative Accounts of Development Various writers began to stress the humanistic assump­ tions underlying development discourse; in this respect, Denis Goulet, writing books long before the 1980s, was a pioneer. There are two features to what I am calling the humanistic emphasis: first, that in the last analysis it is individual human beings whose lives go well or badly; and second, that an account of human well-being is needed that is considerably richer than accounts of increases in economic well-being. In the 1990s, the Human Development Reports of United Nations Development Program had quite explicitly in both title and content stressed the range of criteria for assessing and measuring progress in the good life. This was actually prefigured in the defini­ tion of development given in the 1986 UN Declaration on the Right to Development: Development is a comprehensive economic, social, cultural, and political process, which aims at the constant improve­ ment of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom. (UN Declaration on the Right to Development, 41/128: preamble)

Development is concerned with progress in human well­ being/flourishing. Economic growth and industrialization are only means to certain ends, and they are only justified if they achieve those ends; if they do not, as the critics would claim they sometimes do not, then they are not justified, and may even be inappropriate if they frustrate attempts of poor people to achieve well-being. It should be noted that even improvements in indicators such as higher calorie intake, easier access to water, or better housing are means to ends, not ends in themselves. Generally, of course, such things do lead to better lives, but it is not self-evident that they do. Easier access to water may indeed have advantages, but if the presence of the well or pump upsets traditional patterns of life in the village, there may be costs as well that need to be taken into account. It is not clear then that development understood in conventional terms does always advance human well­ being. Once this has been accepted, various other things held to be self-evident also become questionable. Does the South necessarily have to imitate or catch up with the North? If it is not clear that the image of the good life offered by the model of development in the North – materialism, consumerism, liberal choice, and so on – is satisfactory, why should countries with other kinds of values, often religious, seek to imitate the North?

Development Ethics

Perhaps there are other ways of tackling extreme poverty (bad in almost any value scheme) that do not depend on wholesale commitment to economic growth. All sorts of alternative models of development, based on value and factual premises rather different from those of the economic growth paradigm are offered (many linked to ecological visions or feminists’ perspectives). Some theories of development seek primarily to enlarge the criteria for evaluating development: economic growth (or growth with equitable distribution) is still be seen as necessary, but its adequacy in accounting for the key values or goals to be sought is questioned. Other theories are more radical, questioning the centrality or necessity of economic growth (at least for sectors other than the very poor), but presenting alternative models of change (which may involve growth in other things). All these theories make much more of other criteria such as freedom, equal­ ity, rights, community, political participation, a healthy relationship to the environment, and so on. At the extreme, there is the rejection of development altogether as an appropriate object of pursuit. Thus, for instance, Wolfgang Sachs and others see development discourse as ineradicably linked to the global economy that homoge­ nizes cultures, and therefore they reject it as an important organizing concept for identifying desirable social change. These critical responses to the dominant paradigm of development are all based on alternative value systems that have in more recent years led to more sustained philosophical reflection on their bases (see the section titled ‘Philosophical Exploration’). But what also emerged from these alternative approaches is an important feature: the criticisms of the economic paradigm are not merely criticisms of it as applied to poorer countries in the South; they are in effect (if not in primary focus) criticisms of that paradigm as applied to rich countries as well. In other words, development ethics is not really about ethical issues to do with the South, it is about development any­ where. (See Box 1 for my summary of this subsection.)

Box 1

Approaches to Development

1. Economic growth as central: Free market with trickle-down effect; With mechanisms for equitable distribution; Focus on poverty reduction/basic needs. 2. Economic growth as necessary but not sufficient: Importance of other criteria as well as economic growth, e.g., liberty, rights, participation, equality, community, respect for the environment. 3. Radical alternatives: Economic growth in general neither necessary nor suffi­ cient: redefinitions of authentic development or rejection of development altogether.

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Grassroots/Planning Issues The increasingly sophisticated exploration of the ethical foundations of development is not confined to abstract or general issues of overall policy, but informs much discussion of more specific situations, planning decisions, and grassroots development projects. Often projects in which modern tech­ niques are introduced come into conflict with traditional communal values. Policies that meet the immediate needs of poor people may be seen as problematic when issues of sustainability are considered, if for instance they involve overgrazing and overcropping. Conversely, traditional prac­ tices may actually be more environmentally sustainable and in harmony with nature compared with new practices intro­ duced by outsiders. The promotion of the status of women comes up against various forms of cultural resistance. The policy of giving aid in conflict situations may be questioned if that is likely to fuel the conflict. What focus on such dilemmas brings out are two impor­ tant features of development ethics. Because development is by definition a process of change, for which there would be no justification if it were not from a worse state to a better state, development decisions are being made in situations of transi­ tions in an imperfect world. Even if thinking about development often has a reference to an idea of full or perfect development and the values that would be fully realized in it (a modern way of thinking about utopia), the hard ethical issues in development have to do with the real world of change in conditions that are not merely marked by extreme suffering, but also by human imperfections: prejudice, ignor­ ance, fear, greed, power, and the social, political, and economic structures that reflect them. These form the back­ cloth to many of the real dilemmas in decision making (see Box 2 for summary of common themes in development ethics).

Philosophical Exploration In this section, we make explicit the various philosophical theories that underlie different models of development, in some cases criticizing the dominant paradigm in some cases supporting it.

Box 2 Areas of Agreement in Development Ethics 1. 2. 3. 4. 5. 6.

Development is ethical in character; Development Ethics is multidisciplinary; Reduction of poverty is central to authentic development; Development is ultimately human development; What is appropriate is context-sensitive; Conventional Development qua economic growth part of the problem.

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Normative Positions in Philosophical Ethics Since the 1980s, mainstream moral philosophy has entered the discourse of development to a significant degree. Three kinds of questions can be identified. First, if development is about change from a worse state to a better state and this centrally involves the improvement of the lives of human beings, by what criteria do we measure that improvement: what is the good life? This has been the primary focus of discussion. Part of the debate is over the preferred terminology such as welfare, well-being, or flourishing, part of it over how to interpret these key concepts. But two further kinds of question arise: part of what makes a society move from a worse state to a better state is the general nature and quality of its social structure and relations, how human well-being is distributed in the society, what kinds of liberties and rights are in place, what kind of moral culture exists, what values of democratic participation are established, and so on. Third, ethical questions can be raised about the pursuit of development by a country in terms of its external relations to at least three things: the environ­ ment, future generations, and other countries in the world. Aman’s 1992 book Ethical Principles for Development: Needs, Capacities and Rights, based on a conference on the same theme a year before, reflects accurately the kind of involvement of moral philosophers in development think­ ing. Three of the main philosophical approaches are indeed those of needs (represented there, for example, by Peter Penz), rights (represented, for example, by Jim Nickel), and capacities (represented by David Crocker). The needs approach, picking up on an earlier basic needs strategy (associated with Paul Streeten), stresses the importance of an account of needs, to be sharply distin­ guished from wants and luxuries in which to ground the priority of action to address extreme poverty. Interest in rights theories also has a dual purpose, of providing an account of the essential elements of human well-being, but also providing the basis for, in the words of Henry Shue, ‘‘the minimum demand of all humanity on all humanity’’ (Shue, 1996: 52). The capacities or, as it has generally come to be known, the capabilities approach has gained prominence in recent years. (Since 2001 the Human Development and Capabilities Association has been the center of much interest.) The approach found in the writing of the Indian development economist-cum­ philosopher Amartya Sen has been given philosophical development in the writing of thinkers such as David Crocker and Martha Nussbaum, the latter giving it a neo-Aristotelian interpretation. The central concern is to map out the central capabilities that are developed and then exercised in ‘‘functionings’’ in the range of things a person has ‘‘reason to want to be and do,’’ and so provides an account of human well-being that, while

placing sufficient emphasis upon physical well-being, also properly bring in psychological and social capabil­ ities and functionings. Another approach of importance in this debate is what can be called the Kantian approach, which stresses the fact that human beings are rational agents whose well-being is exhibited in the properly developed exercise of rational choice and autonomy. A prominent exponent, Onora O’Neill, argues that extreme poverty undermines the properly developed exercise of rational agency. Thus this approach gives a good theoretical basis for the thesis that helping the poor is essentially a matter of empower­ ing them. There are other approaches as well. For instance, utilitarianism can also provide a basis for identifying what the essential elements of well-being are (happiness; preference, satisfaction, etc.) and a rationale for the dis­ tribution of well-being in society (i.e., that which maximizes well-being). Similarly, a liberal theory such as that of John Rawls provides a relatively thin account of what human good consists in (the exercise of choice to achieve each person’s conception of the good), an account of the primary goods (wealth and liberty) needed for this, along with principles for the distribution of these primary goods in society. What is perhaps striking about utilitarian and liberal theories (including those that stress the impor­ tance of free markets) is the fact that relatively uninformative accounts of what the good consists in are provided (preference satisfaction, doing what you want/ choose), as compared with the earlier mentioned accounts (such as the capabilities approach). The Utilitarian and liberal theories tend to go hand in hand with the eco­ nomic growth paradigm. After all, if one thinks it is adequate to say that human well-being consists in getting what you want or exercising choice, then it seems selfevident that more wealth enables you to get more of what you want or to exercise more choice, so it is obvious that economic growth is desirable. It is this inference that much of the recent philosophical discussion precisely questions. This survey of ethical theories is by no means com­ plete. There are, for instance, certain religiously based ethics or various kinds of ecological ethics that press for a richer account of what (real) human well-being consists in, and hence of what constitutes real development. It will be apparent that once the level of discussion engaged in is that of basic moral theories about the good and the principles of social order, the implications are not merely about appropriate criteria for change in develop­ ing countries, but apply equally to richer countries. Indeed, much of what motivates philosophical enquiry into the appropriate basis of social change stems from an unease about the priorities and commitments of rich countries themselves.

Development Ethics

Of course, one source of that unease stems precisely from the relationship that rich countries have with poorer countries, in terms of their aid programs, but also much more significantly in terms of their wider economic rela­ tionships in trade and investment. For instance, if more aid should be given or if economic relations should be such as to benefit poorer countries more, this, it may be argued, requires a willingness to reduce economic growth in the North, or even question its dynamic altogether. Another source of unease about the economic growth policies of the North stems from a concern about the way of life in the North being too affluent, too materi­ alistic, or too consumerist, and so there is a desire to consider more explicitly the essential values that should underlie policy in the North. A third area of concern that invites a re-examination of the basic values underlying development in the North stems from concern for the environment – protecting Nature now and the well-being of future generations – hence the immense interest in the ethics of sustainable development. Theoretical Considerations About the Nature of Development Discourse In the previous section, we looked at several ways in which philosophers bring moral philosophy into the dis­ cussion of values underlying development. These have been primarily normative, that is, rival theories are pre­ sented about the content of the values and their justification. But there are also a range of ethical and more generally philosophical issues that can arise in con­ nection with thinking about development, which are not so much to do with defending a particular value approach as examining some of the more theoretical assumptions and issues lying behind the discourse. Consider for instance conceptual issues about the meaning of ‘‘development’’: what are its links with the Aristotelian idea of teleological development from poten­ tial to full development as in the development of a fetus into an adult or an acorn into an oak, with the idea of evolution as in biology or the idea of progress as in Victorian thinking about progress? What is the signifi­ cance of the fact that development refers both to the current process of change and also to a future state of having achieved development, and what is the relation­ ship between the two? It is apparent from much of the discussion above that many thinkers are keen to stress that their account of development presupposes values of various kinds, hence the interest in development ethics. But perhaps the ethical dimension is not, as it were, an optional extra, which some thinkers are keen to bring in, but can be, and is, excluded in much other thinking, for example, that of many who accept the dominant growth paradigm. Perhaps it is sig­ nificant that all attempts to define development, at least

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where development is being regarded as an object of policy or planning, that is, as something to be chosen and intentionally pursued, are implicitly if not explicitly ethical or evaluative. Dower, for instance, has argued that we should define development as ‘‘a process of socio-economic change which ought to happen.’’ (Dower, 1989: 9). This is the thin account (or concept) that underlies any development ethicist’s attempt, con­ ventional or otherwise, to give a thick account (or conception) that is justified as being what ought to happen. Universalism, Particularism, and Relativism A third kind of consideration (which crosses the norma­ tive/theoretical division above) is of immense importance, namely the issue of universalism, particular­ ism, and relativism. Much of the ethical concern about development has come from an unease that the patterns of development that are dominant in the North are not appropriate to social change in the South, and that in many ways what is happening with the strengthening of the global economy is the destruction of traditional cul­ tures, worldviews, and value systems, even though such value systems are in fact right for those cultures and are the appropriate basis for whatever change needs to take place. In other words, the values that should underlie social change vary from society to society. What is hap­ pening in the global economy is but the latest manifestation of European cultural imperialism or Eurocentrism. Most but not all writers in development ethics share in this unease, but in varying degrees and with different views of its theoretical significance. One response, noted earlier by Sachs, is to see the idea of development closely tied to the European value sys­ tem, itself born of the Enlightenment and the idea of universal reason, and thus, in the name of celebrating diversity and the need to defend traditional value systems against the encroachment of global capitalism, to reject the idea of development altogether as an appropriate vehicle for articulating desirable social change. Much of the language of Latin American liberation theology reflects this, rejecting development in favor of liberation, that is liberation from the external models of change imposed by outsiders. But those within development ethics, who retain a commitment to the central concept but recognize that rival values can be built into it, can also make the point that diversity of cultures and norm within them are to be defended in the name of development. This is because it can be claimed that the kinds of social change that ought to happen, or it would be good to happen, are different in different places, and, for instance, depends upon the values already accepted by the people in question. We should note that the recognition of particularism in diverse conceptions of appropriate

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development is consistent both with a Sachs-style rejec­ tion of development discourse and with a radical interpretation of development discourse itself. The recognition that much diversity needs to be accepted and defended (in the face of the homogenizing tendency of international economics) can then stem from two very different theoretical positions, relativism and a universalism that incorporates diversity. The relativist position, often in modern times identified with postmo­ dernism, essentially rejects the idea of a universal value system of any kind (because there is no vantage point from which to achieve it) and claims that values are relative to different countries or cultures (or in an extreme version, different individuals), so it is impossible to provide any general ethical theory (such as the ones indicated above) that could apply to all societies, and hence to all processes of change called development. The values underlying each society’s appropriate social change are internal to that society and its traditions, history, and current situation. It is possible of course for a development ethicist to adopt this relativist position. There is nothing in the general position of being inter­ ested in the ethical issues in development that precludes such a relativist position. On the whole, however, those interested in development ethics do not adopt the posi­ tion, but rather the universalist position that incorporates diversity, pluralism, and particularism. This stems from a belief in a universal value core itself, concerning, broadly conceived, elements of human well-being such as secur­ ity, subsistence, community, and participation in decision making. It also stems from a belief in the validity of universal norms of global responsibility, for example, of the rich to support authentic development in the South, norms that are problematic on a purely relativist position. Most development ethicists prefer to identify some kind of universal value framework and then accommodate various kinds of diversity within it. Thus those who advocate a neo-Aristotelian or Kantian or rights approach are generally keen to show that their theories are at a sufficiently high level of generality as to allow significant variations in different societies’ development: these varia­ tions are expressions of or interpretations of the underlying value in different social contexts. It would not be their intention to see their theory as projecting an essentially Western value theory that for instance highlighted the central role of material growth onto other parts of the world, though their critics might argue that, despite their intentions, they are doing just that. Indeed, this might be the criticism made by many development ethicists of the dominant economic para­ digm insofar as it is premised on a libertarian or utilitarian value framework. That is, although the advo­ cate of the free market and the Northern model of economic transactions might claim that this is premised on the freedom of the individual to pursue his own

Box 3

Ethical Theories and Development

1. Normative positions concerning the good life/social order: Kantianism, Aristotelianism, basic rights needs theories, utilitarianism, Rawlsian liberalism. 2. Metaethical issues: Links with teleology, evolution, progress; Evaluative nature of definitions of development. 3. Relativism vs. universalism concerning the values inherent in development.

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conception of the good or seek his own preferences (which might be culturally influenced in different ways), and thus be neutral between cultures, the critic disagrees. From the point of view of the critic, this very model of the individual rational chooser is not neutral, as between different forms of cultural life, but advocates a very dis­ tinctive form of cultural life in contrast with more communal conceptions or ones in which certain religious values are central. (Consider the clash between Western materialism and Islamic theocratic ideals.) Although most development ethicists do set out to develop some kind of nondogmatic universal value the­ ory, it should be noted that, just as nothing in the idea of development ethics precludes relativism, so nothing in the idea precludes an attachment to a dogmatic idealism of some kind or other that the thinker knows full well is not actually accepted in many of the societies for which it is recommended. Thus, a highly specific religious model of appropriate change, or a model dominated by an eco­ logical vision, or a model advocated by an avid secular liberal defender of free choice, might be advocated for all societies, with the quite specific implication that what is dominant and accepted in most countries at present is simply misguided (Box 3).

International Development Issues I now turn to various issues that arise at the international or global level. These are the issues that arise if one considers international or global ethics insofar as it has a bearing on development issues. I shall define international or global ethics as the ethics of the relationships between states and between individuals living in different parts of the world. Ethical issues germane to our enquiry have been identified and discussed by a number of writers, both within the disciplines of philosophy and international relations and outside them, and although these issues would now be seen as clearly belonging to the remit of development ethics, they have been to some extent dis­ cussed without being seen as part of development ethics, partly because these issues arose before development ethics had emerged as an identified subdiscipline.

Development Ethics

The three main issues to be focused on are the ethics of aid, the ethics of international economic relations, and the ethical implications of globalization. These have a direct bearing on development in the following ways. Aid clearly is directed (whatever the motive) to the development of the recipient country, whether to the overall development of the country as a whole or to the specific development projects for the very poor in those countries. Either way, clarity about what development is and what values underlie it is rather important, since aid is only a means to some good that it promotes, and it takes its value from the value of the end. Similarly, the kinds and levels of economic relations that rich countries or actors such as transnational companies exercise have a distinct bearing on the kinds and levels of development that take place in a poorer country. If, therefore, we have a view as to what is an appropriate kind of development for such a country, and we come to recognize that international trade and investment is not, either in its intentions or in its consequences, adequately achieving this develop­ ment (or is actually impeding or undermining it), then we will have reason ethically to criticize it and seek ways of modifying or controlling it. The third issue affects how we think of development by situating the development of a particular country in the context of global development and global problems. The Ethical Basis of Aid Most writers concentrate on the ethical basis for an individual’s giving aid to help alleviate distant poverty. The assumption is generally that this provides the basis for a parallel argument that rich countries should give official aid to poorer countries. That is, the same argu­ ments about what individuals should do, whether based on consequentialist or nonconsequentialist considera­ tions (see later in this section), also apply to states. While this position requires defense (because on the face of it the duties of government are governed by more complex considerations, such as the preference of their electorates on the one hand and on the other the existing international codes of practice and existing agreements), it is assumed in what follows. It should also be noted that there is often a further difference between private giving and government aid. Most pri­ vate giving is directed to projects for the poor and justified on the grounds that the very poor are helped, whereas much if not most government aid is directed to the overall economic improvement for a poor country and may be justified on those grounds, without specific reference to poverty alleviation as its justification. Various ethical bases for aid have been given, many of them not surprisingly the same as the ones given in the section ‘Normative Positions in Philosophical Ethics’ for

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the internal ethical basis of development. Thus Beitz extends Rawls’s theory of social justice for a domestic society to a global society, and he argues that the condi­ tion of mutual economic interdependence is such that it requires the principles, most notably the difference prin­ ciple, to be applied globally. Thus, ideally the world ought to be so organized that the least well-off (the poor in the South) are better off than they would be under any other global arrangement. He recognizes we are far off that point, but should move gradually toward it. Henry Shue’s theory of socially basic rights to subsistence, secur­ ity, and liberty, which imply the correlative duty on the part of others generally not to deprive others of their rights, to protect from standard threats of deprivation, and to come to the aid of those deprived of their rights, provides another basis for global action to alleviate global poverty. Onora O’Neill, in Faces of Hunger, uses a Kantian argument to support the claim that the rich should take action, including political action against existing power structures, to empower the poor (see above). But perhaps the best known single example of an ethical argument used to get the rich to give their money (and no doubt, time, effort, and resources gener­ ally) is Peter Singer’s article titled Famine, Affluence and Morality, reprinted many times because it sets out a clear argument and replies to objections with a clarity that has hardly been matched since, though many papers have been written. The central argument in this depends upon a simple premise: ‘‘if it is our power to prevent something very bad from happening, without thereby sacrificing anything of comparable moral importance, we ought to do it’’ (Singer, 1972: 232). Although Singer himself is a utilitarian, he fashions this principle, which is the major premise of the argument, in such a way as to include, as he sees it, both consequentialists and nonconsequentialists. All the above arguments are essentially forward-looking arguments, in the sense that they do not depend on looking back on the situation and asking how did the current level of extreme poverty come to exist? They are dependent on acknowledging (1) that it exists, whatever its causes, (2) we in the North (those of us reasonably well-off) have the capacity to give or support (effective) aid, and (3) so we ought to do so. How much and in what ways is a matter for further debate. Certainly not all take the extreme ‘‘as much as you can’’ line of Singer’s argument. But it should be noted that some arguments for giving aid are backwardlooking (to recall WD Ross’s well-known conception) in the sense that they depend on the recognition (which is somewhat controversial) that countries in the North engaged in and continue to be engaged in exploitation of the South (colonialism and neocolonialism) and therefore ought to make amends/restitution/recompense for the injustice done. Thomas Pogge, for instance, has argued that the international economic system actually violates

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the rights of the poor. If individuals give aid on this basis, they do so as beneficiaries of or as part of larger causal chains in such exploitation, not because they themselves are the active perpetrators of it. There are, however, various arguments lined up against all these arguments (quite apart from rejecting the empirical assessment of exploitation in the last-men­ tioned argument). They fall broadly into three kinds of arguments: those that do not accept a general duty to help others, whether in one’s own society or elsewhere, those that do accept a general duty to help others but restrict it to the domestic domain and so deny global responsibility, and those that claim that even if there is in principle a general duty to help people anywhere, since aid generally does not work, in practice it does not apply. First, it is not self-evident that our basic moral code has to include a general duty to help others. The main function of morality is to refrain from harming others in various ways or interfering with their rights, and although we can have particular duties of positive care, for exam­ ple, as parents to children or when we are under a contract to care for someone, there is no general duty to help others; so a fortiori there is no duty to help others in other parts of the world. Second, although most development ethicists them­ selves, as noted above, would see it as a corollary of their commitment to universal values to argue that we have duties of care the scope of which is worldwide, it is by no means self-evident that this is so. Arguments from relativists, and those conventionalists and communitar­ ians who take the strong line that moral duties arise out of social convention or the traditions of a particular com­ munity, lead to conclusions of different kinds, that our duties to peoples in other parts of the world are either nonexistent or marginal compared with those to members of one’s own society. Parallel to these arguments, there is the quite specific argument belonging to international relations theory called international skepticism, according to which, because of the nature of the international system of independent states, for example, the fact that there is no common power to enforce rules, there is no morality between them, only an arena of contending powers, so a fortiori there is no duty to give aid or further the devel­ opment of other countries (and if a country does so, it is to further its own interests). Thirdly, there is a cluster of arguments to the general effect that aid either does not generally, or cannot, work and so there is no duty to do what is impossible. Such arguments are either to do with the general nature of aid, with the argument that it necessarily creates dependency or to do with the long-run ecological con­ sequences of aid, particularly emergency food aid. Garrett Hardin’s approach is particularly well-known in this regard (Box 4).

Box 4

The Arguments for and Against Aid

A. The arguments for aid: 1. Forward-looking arguments: if we have the capacity to help, we ought to help:

• • • •

Extended benevolence (Singer); Kantianism; Basic rights; Global social contract. 2. Backward-looking argument:

•

Restitution for past (and present) exploitation. B. The arguments against aid: 1. No general duty to help others anywhere. 2. Obligations to help are exclusively/primarily to members of one’s own society; therefore global obligations are nonexistent/marginal. 3. Aid does not or, because it creates dependence, cannot work.

Trade/Economic Relations Aid programs are of course only a very small part of the total impact of rich countries on the economies of poor countries; most of the impact is the result of trading relationships, investment policies in the Third World, including the making of loans and then requiring debt repayment. These impacts may be through the policies of governments and their agents or through the activities of transnational companies and banks that are based in a rich country but operate in other countries. Many writers have examined these relationships and noted the inequality of wealth and power involved, and the creation of dependency and periphery status (especially those of Marxist orientation such as Frank), that is, the dependency/underdevelopment theorists of Latin America referred to earlier. Some writers have criticized this with great moral passion such as Hayter, while others have in a more theoretical mode, attempted to construct ethical theories with which to criticize the patterns of power in the name of global distributive justice (see, e.g., Beitz). In the 1970s, the so called group of 77, the block of developing countries at the United Nations, promoted the idea of a New International Economic Order (which was adopted by the UN), which in many ways reflected the interest in the ideas of global (distributive) justice and a new distribution of power in the world. Although the intellectual foundations of the idea may still be valid, it did not survive as an active vehicle of change and in fact the 1980s was a period in which the inequalities of power in the world became greater. The harsh consequences of the recycling of oil surplus money through loans to the South began to be felt, with the pressures of debt repayments becoming and continuing to be a major burden on countries in the

Development Ethics

South. These debt repayments were one factor in the continuing of and growth in levels of extreme poverty. The Jubilee 2000 movement was concerned with encouraging rich countries to cancel or reduce the debt of the Heavily Indebted Poor Countries (HIPCs). The twenty-first century has seen a resurgence of interest in the challenges of global justice. World Development and Globalization The phenomenon of globalization has an important bear­ ing on how we think about development issues. The processes associated with globalization – increasing world markets, global communication through the media and through the Internet, the development of international institutions and regulations, the increasing impact of international NGOs (nongovernmental organi­ zations) – all contribute toward the emergence as a social reality of something that may be called world society. Thinkers over the ages have often postulated the idea of a civitas maxima (the greatest society), and indeed many moral theories, like the ones discussed above, at the heart of development ethics precisely suppose that we all, in ethical terms, belong to one moral order or one moral community, whether or not the reality of a world society exists. If it does not, then the moral theories support movement in the direction of achieving it. What is happening in the world, despite many other factors such as ethnic struggles, can be seen as a gradual but pronounced move in the direction of the emergence of a world society. This is not to say that what is emerging is what cosmopolitan idealists would like, since the strengthening of the world economy is, as noted earlier, producing homogenization of cultures (and therefore the undermining of traditional cultures), it is reenforcing global inequalities, and it is also putting pressure on the global environment. However, the bearing of this on development is important. The phrases ‘‘world development,’’ ‘‘interna­ tional development,’’ and ‘‘global development’’ have certainly been in use for some time, but the exact mean­ ing of these phrases has remained ambiguous. On the one hand, the phrases can refer to the overall process in the world as a whole in which separately the various pro­ cesses of development in different countries occur. It is a byproduct and has a summative function. On the other hand, they can refer to the framework within which international cooperation occurs in order to promote development in particular countries, especially in the South. (Thus aid programmes can be seen as interna­ tional development.) But with the process of globalization, a third sense can be identified as emerging, though it is often implicit. If the world as a whole is to be thought of as one (emerging) society, then the development of that society

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is an object of prescriptive interest. ‘What kind of world do we want?’ is really a question about development, albeit about the development of the largest unit: the whole world. The issues are not of course merely about economic growth in the world as a whole or with the priority of poverty alleviation, but about the values to be sustained and promoted in the world as whole, the kinds of diversity to be accepted or celebrated, the kinds of global institutions (not merely international ones) that need to be fostered to give expression to global governance. Global governance is not, after all, the same as world government, because there may be many different ways of ordering our common affairs at a global level, as the Commission on Global Governance argued in 1995. An important dimension of this, of course, is concern for the environment and the need for sustainable devel­ opment. The Rio conference of 1972 reinforced the current commitment to sustainable development and has led to various international initiatives, not least in the area of serious climate change policies. Environmental issues in the modern world are, of course, crucially global in reach, and effective measures often require actions by all countries. So any effective way of fostering sustainable development needs to be global in scope and conception. Such measures are, therefore, in logic and ethical require­ ment, about global development, even if this language has not been taken up very much as yet. That is, environ­ mental protection requires global development, not merely the development of this or that country, consid­ ered in isolation. This level of enquiry belongs to the emerging agenda of development discourse and development ethics. But it also illustrates another more general point. Most thinking hitherto about development has assumed that the primary unit of development is the nation-state (and other units have been defined intranationally or internationally in terms of it). This is because development as an object of prescriptive interest is something subject to human con­ trol, at least to some degree. Nation-states have had that kind of control. But development can be about any size or shape of human association that can, by its corporate or collective decision making, affect the way its own future goes. So if we are now seeing a changing world order in which the nation-state has a less central place, there will not only be greater interest at the global level but also greater interest in what happens at more local levels. It is not merely that these trends are happening, whether we like it or not. There are moral arguments for moving toward a greater sense and reality of global society as well as a returning to a greater sense and reality of local community. But these arguments are really about devel­ opment since they are about desirable social change in the world as a whole.

788 Development Ethics See also: Deep Ecology; Development Issues, Environmental; Distributive Justice, Theories of; Environmental Ethics, Overview; Global Ethics, Approaches; Global Ethics, Overview; Mobility (Migration); Sustainability.

Further Reading Aiken W and LaFollette H (eds.) (1995) World Hunger and Morality. Engelwood Hills: Prentice-Hall. Aman K (ed.) (1992) Ethical Principles for Development: Needs, Capacities and Rights. Montclair: Institute for Critical Thinking. Attfield R and Wilkins B (eds.) (1993) International Justice and the Third World. London: Routledge. Beitz CE (1979) Political Theory and International Relations. Princeton: Princeton University Press. Crocker DA (2008) Ethics of Global Development: Agency, Capability, and Deliberative Democracy. Cambridge: Cambridge University Press. Dower N (1989) What Is Development? A Philosopher’s Answer. Glasgow: Centre For Development Studies. Gasper D (2005) The Ethics of Development. Edinburgh: Edinburgh University Press. Goulet D (1977) The Uncertain Promise. New York: Apex Press. Goulet D (1995) Development Ethics – A Guide to Theory and Practice. New York: Apex Press. Nussbaum M (2003) Women and Development. Cambridge: Cambridge University Press. O’Neill O (1989) Faces of Hunger. London: Allen & Unwin. Pogge T (2003) World Poverty and Human Rights. Cambridge: Cambridge University Press. Sachs W (ed.) (1992) The Development Dictionary. London: Zed Books. Sen A (1999) Development as Freedom. Oxford: Oxford University Press. Shue H (1996) Basic Rights: Subsistence, Affluence and US Foreign Policy. Princeton: Princeton University Press. Singer P (1972) Famine, affluence and morality. Philosophy and Public Affairs 1, pp. 229–243.

Relevant Websites http://www.capabilityapproach.com/ Human Development and Capabilities Association. http://www.hdr.undp.org/ – Human Development Reports. http://www.development-ethics.org/ – International Development Ethics Association. http://www.tandf.co.uk/journals/cjhd – Journal of Human Development and Capabilities. http://www.elsevier.com/locate/worlddev – World Development.

Biographical Sketch Nigel Dower is Honorary Senior Lecturer in Philosophy at the University of Aberdeen, Scotland, where he taught for most of the period 1967–2004. He has also been a visiting professor a number of times in the United States and Iceland. He now acts as an academic consultant on Cosmopolitan agendas – ethics in a globalized world. He was President of the International Development Ethics Association from 2002 to 2006. His research interests in the last 20 years have focused on various issues in global ethics, including development, the environment, human rights, peace and security, and global citizenship. His publications include World Ethics – the New Agenda (Edinburgh University Press, 1998), Introduction to Global Citizenship (Edinburgh University Press, 2003) and The Ethics of War and Peace (Polity, 2009). In 2007, he received an Honorary Doctorate (TD) from the University of Uppsala for his work on global ethics and related issues.

Development Issues, Environmental N Dower, University of Aberdeen, Aberdeen, UK ª 2012 Elsevier Inc. All rights reserved.

Glossary Development A process of socioeconomic change, primarily and centrally a process of economic growth, which, to some significant degree, is the object of public policy and planning. This is broadly the dominant conception of development. However, behind it lies a weaker definition of development as a process of change in a society that, in the eyes of the thinker, is a change that ought to happen (e.g., from a worse state to a better state). It is possible to offer rival conceptions of development dependent on the criteria adopted, and environmental considerations play an important part in some of those alternative conceptions. Environment The physical world that ‘surrounds’ a person or group of people and on which human beings depend for life as physical beings. This may be called ‘nature’ or the natural world, so long as it is understood that this includes matter and indeed living things modified by human skills and technology. A distinction can be drawn between an environment as it really is and an environment as a field of significance or meaning for an individual or group.

Introduction Development has been conventionally seen as economic growth and the increase in the material standard of living of human beings. Environmental ethics has focused on the nat­ ural world as a source of value and on our responsibilities to future generations. The pursuit of development and the protection of the environment are often seen to come into conflict with each other. Various attempts, including different accounts of sustainable development, are made to integrate these sets of concerns. An overall ethical theory, character­ istically global in scope, is usually presupposed, and many thinkers – except for the very optimistic – see the need for more explicitly normative accounts of development in terms of quality of life understood in ways that go well beyond or challenge the economic paradigm.

Conventional Approaches to Development This article first considers the standard ethical presup­ positions behind development and behind concern for the

(A similar contrast applies to social environments as well.) Global ethics An ethical approach according to which the whole world is regarded as one moral domain or community: The scope of our moral obligations extends in principle across this one community. Quality of life The overall character of a person’s life assessed in terms of how well (or badly) that person achieves well-being. The criteria by which this is assessed are complex and a matter of disagreement, with some stressing economic or material standing and others stressing factors such as social relationships, community, liberty, and relationships to the natural world. Resources Types of things that have a significant use value. Natural resources refer to those substances in nature that have a significant use value, but resources can also refer to things such as finances, knowledge, skills, and people. Sustainability The capacity that something has to be sustained into the future (either indefinitely or for a time span indicated by the context). The term is applied to development, society, industry, agriculture, cities, and so on.

environment, and then it identifies areas of conflict and possible areas of reconciliation. This leads to a consideration of some global issues and a re-evaluation of development. Development as Economic Growth (with Equity) Since the end of World War II, when the language of ‘developed’ and ‘underdeveloped’ became well estab­ lished, it has generally been understood that among the publicly agreed goals of any society is economic growth; hence, this is one of the key roles of government. Economic growth enables people to have access to more wealth and hence to achieve a better quality of life – longer, healthier, more enjoyable, and so on. It has generally been assumed that countries in the industria­ lized areas of the world (the ‘developed’ world, often referred to, with little attention to geographical accu­ racy, as ‘the North’) have achieved a satisfactory level of development (although still continuing to grow), and that countries in other areas of the world (‘underdeve­ loped,’ ‘less developed,’ ‘developing,’ or ‘the South’) need to catch up both because of the gap between coun­ tries as such and because of the existence of extreme

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poverty (currently affecting more than 1 billion people or one-fifth of the world’s population). The presumption has been that the North provides the model for the South to follow or emulate. However, issues have arisen regarding (1) the ade­ quacy of thinking of development as economic growth, for example, whether ‘growth with equity’ would be bet­ ter or whether ‘basic needs strategies’ need to be built into it; (2) whether free markets adequately distribute wealth to all (by ‘trickle down’ or hidden hand mechanisms) or should be complemented with more active interventionist policies (progressive taxation and welfare provision); and (3) at least before 1989, whether capitalism or statecontrolled economies delivered the goals of development better. With the emergence of what is now called ‘the global economy,’ there is now in many ways even more general agreement – at least among governments, busi­ nesses, and international agencies such as the Word Bank – not only about the idea of development as sus­ tained economic growth but also about the appropriate means of pursuing it, namely the free market. Ethical Basis for Pursuing Development There are two kind of ethical basis for this commitment to development as economic growth. The first one is based on the function of government. It is perhaps worth noting that in earlier eras this would not to have been seen as a function of government. For example, in early contract theories such as Locke’s, the function of government was the protection of life, liberty, and property through the provision of security from external attack and of internal order. The origins of the transformations are complex, but two aspects are worth noting: (1) the rise of modern science with its power over nature through technology to improve the material conditions of human beings, and (2) the Enlightenment belief that it was good and possible to use reason to improve the human condition. The nineteenth-century conception of the ‘idea of pro­ gress’ was an outcome of this and led to our ideas of ‘development’ (which may be seen as another term for progress). If governments are there to promote the inter­ ests of their nationals and these interests include economic growth, and this is even more clear for any government with a democratic mandate from their citi­ zens who want increasing economic prosperity, then there is a general ethical rationale for a commitment to devel­ opment so understood. The second ethical basis for development derives from the fact that development is either directly about the reduction of extreme poverty or largely justified as a general process in terms of such reduction. There is a large literature concerning the ethical basis for poverty reduction, both within countries (e.g., John Rawls’s idea of ‘social justice’) and through international cooperation.

Environmental Ethics Environmental Problems Environmental ethics as an active field of enquiry has arisen in the past 30 years as a response to the recogni­ tion that human practices are affecting the physical environment in a number of disturbing ways, and that therefore we need collectively to change our practices. The facts to which environmental ethics is a response are as follows: 1. The destruction or damaging of the natural world – harming of nonhuman life, reduction of wilderness areas, destruction of species – and, increasingly, technological manipulation of life-forms. 2. The finiteness of ecosystems and the planet as a whole with respect to the depletion of nonrenewable natural resources; the limited capacity of the biosphere to absorb the effects of human activity (e.g., pollution, too much carbon dioxide emission, and overuse of lands and waters) without deleterious change; and the areas in which renewable resources are produced so that an upper limit of sustainable yield of food, timber, etc. has to be accepted (and hence ultimately an upper limit to population levels). Ethical Bases: Nonhuman/Future Generations/ Global Dimensions The ethical responses have for the most part centered on why we should care about how we treat or relate to the physical environment. The main issues touch on (1) whether we should care for the environment because other life-forms in nature, and possibly nature itself, have a value/worth/moral status independent of our interests (biocentrism and ecocentrism) or because it is in our collective interests as humans to protect it (anthropo­ centrism); (2) whether the basis of concern for human well-being is properly grounded in the interests of current generations – that is, those human beings currently exist­ ing – or rather in the interests of (distant) future generations as well; and (3) whether moral concern is for the well-being of those in one’s own society or is for the interests of humankind as a whole. Thus, many envir­ onmentalists would assert three dimensions – interspecies, intergenerational, and international – to the scope of moral responsibility. The third ‘local/global’ issue is much less attended to, partly because it is easy to assume that because environ­ mental problems are often global in scope and require internationally agreed responses (as in the Montreal Protocol (1988) on ozone-layer depletion), our duties are also to all humanity and not to members of our society (who might be affected by changes globally), and partly because there is such general consensus that

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environmental ethics is global in scope. (‘We’ need to reduce fossil fuel emissions is taken to mean ‘we in the world’ generally rather than ‘we in the United Kingdom,’ etc.). This actually makes it easy to fail to notice how this assumption comes into conflict with what is also com­ monly assumed about development and international relations, which we discuss later.

Challenge to the Economic Growth Paradigm There is, however, another important type of ethical debate within environmental ethics that cuts across the three types of issues identified previously. Irrespective of the reasons why one advocates measures to protect or care for the environment, there is the following question: Does protecting the environment adequately or properly require radical or substantial change in the way we act – for example, in patterns of consumption and ways of using the natural world and in the ways we depend on others to act to sustain our way of life, such as patterns of industrialization – or can it be done without such radical changes? That is, does a commit­ ment to the environment involve a radical departure from the ways we behave, at least in the industrialized North, and about the ways we think about values and our way of life, about ideas of the good life, about social institutions, about the role and interpretation of economics in public life – in short, about our commit­ ment to development as growth? Or can we, through other kinds of measures – important as they may be but still not really disturbing the modern economic para­ digm, such as the ‘greening’ of industry – remain committed to ‘continuing more or less as before’? Consider the IPAT formula (I = P � A � T) suggested by Paul and Anne Ehrlich as a way of understanding the impact (I) of human beings on their environment as a function (roughly) of the number of people (population, P), their general level of material affluence (A), and the kind of technology (T) used to sustain the well-being of the population. If we want to reduce the negative impact, which variable do we change? As far as the industrialized North is concerned, the general response is to change the T variable by suitable ‘greening of industry’ measures. However, the radical approach states that changes in A are equally important. These issues cut across the first more central issues in environmental ethics in the following way. Someone who adopted a biocentric, global approach and cared about future generations could still advocate economic growth if he or she thought that such growth could be environmentally nondamaging and that our ‘consumer’ paradigm of the good life was consistent with proper respect for nature. However, for a variety of reasons, most do not. Conversely, someone who adopted an

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anthropocentric approach and even had little interest in future generations might advocate serious questioning of economic growth and of consumer paradigms simply because of the effect on currently existing generations of humans of our cumulative impacts on the environment. Many so-called ‘optimists’ do not.

Areas of Conflict There are several ways of showing conflict between those committed to development and those committed to environment. Limits to Growth The idea of growth and the idea of conserving or pre­ serving may be seen to be in conflict with each other. The title ‘Limits to Growth’ of the famous Club of Rome report, which sparked much of the debate in the 1970s, suggested a conflict at root between the dynamics of development that is growth, including the growth in the use of nonrenewable natural resources, and the constraints that an essentially finite world imposes on that. Other thinkers including Herman Daly have pressed the case for the ‘impossibility theory’ – that it is impossible for the world to continue indefinitely using up resources, putting more pressures on the envir­ onment through pollution, and so on. This entails the politically controversial view that it is impossible for countries in the South to attain the standard of living of countries in the North. It should be noted here that unless one supposes, for Hobbesian reasons, that it is all right for countries to retain their wealth in an inter­ national competitive environment in which not all countries can achieve this, the implication of this view is that the North morally needs to cut back, not grow, for reasons of social justice, even if it did not need to do this anyway because its practices are unsustainable (even without the South catching up). In the 1970s, the main focus of conflict concerned the possibility of run­ ning out of nonrenewable resources, but in more recent years the issue has focused more on levels of pollution and land degradation, with the challenges of climate change taking center stage in the early twenty-first century. The conflict noted previously is not strictly a con­ ceptual one but an empirical one because, of course, what is meant to grow is an economy, and what is to be conserved or sustained is a healthy resource-full envir­ onment. Strictly speaking, these two are perfectly compatible if economic growth can be pursued in ways that conserve the base, which is precisely what the ‘opti­ mists’ argue. Indeed, there are several strands to this

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approach. Writers such as J. L. Simon argue as follows. First, it is important to stress that humans themselves are the ‘ultimate resource’; that is, as resourceful, clever creatures capable of creating new technologies, adapting our desires and preferences, we will find solutions to environmental problems as we continue to pursue human progress. To talk of ‘limits’ to natural resources is misleading because a natural substance is only a resource or an important resource relative to human interests – not all that long ago oil was not a resource – so that as some types of things we call resources run out, we will find other things to take their place as ‘resources.’ Linked to this point is an issue raised by Pearce con­ cerning sustainable development: For development to continue, what do we need to sustain – a natural resource base (i.e., a total stock of natural capital) or, rather, as the optimists claim, a sufficient capital base combining natural capital and human/social capital, the latter being made up of skills, knowledge, institutions, industrial infrastructure, and so on? From a radical per­ spective, the claim that humans are resourceful and adaptable is seen as naively optimistic (as a reason for discounting other concerns) and a variant on the ‘tech­ nological fix’ or an undue reliance on technology to find the solutions to the problems it has helped to create. The previous remarks have a bearing on another area of conflict – population policy: Do we or do we not need to curb population growth? If it is to be checked, is this done appropriately by birth control programs or by proper socioeconomic development for the poor? Clearly, there is a whole range of positions on a con­ tinuum between that of the optimist who does not think we need to make any real adjustment to the pursuit of development for all countries – that is, to global growth (because the environment as a whole will continue to serve human needs adequately, even though clearly parts of it get damaged, etc.) – and the position of those who think that the pursuit of universal growth is quite impossible and therefore a radical re-evaluation of human priorities is called for. Many see the need in varying degrees for serious changes, certainly in industrial and technological practices, if not in Northern lifestyles more generally. Part of the difficulty in interpreting the muchused phrase ‘sustainable development’ is that the phrase covers a whole range of positions. Strictly speaking, there are several responses one could make to the recognition that universal growth is impossible:

•

One could accept that in a ‘win–lose’ world it is necessary to defend one’s corner: If much of the world cannot (realistically) catch up, then that is tough luck. (There was a suspicion of this approach perceived by

delegates from the South at the Stockholm Conference on the environment in 1972 who thought that the North was more interested in conserving its future than helping the South catch up.) This in effect involves denying a ‘global ethic’ or an ethic of global responsibility. One could accept that all countries continue to pursue economic growth now, well aware that in the not-too-distant future tensions over diminishing resources, such as water supplies, will multiply. It is reckoned in any case that more military conflicts in the future will be fought over environmental issues. (Many would consider the Gulf War of 1991 as at least in part about control of oil supplies.) This involves denying that we have responsibilities to future generations. In rejecting that it is ethically acceptable to pursue one’s own country’s development in disregard for other countries and/or the future, others attempt seriously to modify the pursuit of growth in one’s country (as a part of the overall goal of global growth) so as to accommodate both the legitimate development goals of other poorer countries and the constraints and values derived from our environmental understanding.

•

•

Rival Worldviews The conflict identified previously between development goals and environmental constraints is just that – a mat­ ter of limits imposed by the environment on the pursuit of development. However, there are other conflicts that do not depend on this fact but on other considerations concerning broader worldviews. Even if what counts as a natural resource depends on its usefulness to us at a particular time, it remains a deep part of our Western tradition – to which development discourse gives expression – to think of nature as the provider of a bun­ dle of resources or as a waste sink; its value is essentially instrumental, and it is there for us to master and exploit. Much of the recent environmentalist thinking, whether inspired by a nature-centered approach or by a more enlightened human-centered approach (e.g., one that views spiritual and aesthetic appreciation of nature as vital human interests), rejects that whole way of thinking about nature and indeed questions the tendency to assimilate ‘environment’ with ‘nature.’ Rather, nature is to be seen as an object of appreciation, reverence, or respect, and our relationship to the rest of nature should be more – reflecting the language of Aldo Leopold – as plain citizens of the biotic community than as masters of it. On these views, part of the problem with development is that it is the product of the Western Enlightenment tradition in which man, as the only truly rational being

Development Issues, Environmental

(as suggested by Kant and Aristotle, among many others) or being possessed of a soul (Descartes’ dualistic meta­ physics), is set apart from the rest of nature in a kind of dualistic antithesis. Implications of Accepting Limits to Growth and/ or Rival Worldviews for Development If the pursuit of economic growth is seen as needing to be checked or at least severely reduced or generally questioned, what implications does that have for our understanding of development? Here, there are two pos­ sible strategies. One is to give up the whole idea of development as essentially flawed or necessarily imbued with the values of the global economy. This is the approach of writers such as Wolfgang Sachs. The chal­ lenge is then to provide some alternative concept or conceptual package through which to articulate accep­ table change. On the other hand, there is an alternative strategy, adopted by many members of the International Development Ethics Association, of taking up the chal­ lenge of redefining development in ways that make economic growth for all less central and of making environmental constraints and values more integral to the conception of development. These approaches do not deny the importance of such economic growth as is needed to enable the very poor to escape their poverty. Indeed, if anything, special emphasis may be put on precisely this, in contrast to the more general goal of growth as a global goal, especially for rich countries. Development as Setting Limits on Environmental Protection Conversely, of course, commitments to development, insofar as they are seen as ethically defensible or neces­ sary, will set limits to the degrees and kinds of environmental protection that are seen as ethically required or politically realistic. If development as eco­ nomic growth is seen as a commitment of public policy, how can, for instance, measures to protect the environ­ ment justifiably go beyond the public expectations behind that policy? Even if development is not seen simply as economic growth, development is firmly rooted in the idea of ‘human’ development or progress in human well­ being. Thus, any environmental perspective that does not take this into account has to be questioned from the standpoint of a development thinker. Strategies for Responding to the Conflict There is little doubt that there are many intellectual conflicts, such as those previously mentioned, between those who pursue development and see environmental

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protection as essentially pragmatic (‘exploit it well now so that we can go on exploiting it later’) and those for whom environmentalism is about a new approach to nature (and ourselves). Whether or not these conflicts are resolvable depends on how much each party is will­ ing to acknowledge that there ar