From reason to practice in bioethics: An anthology dedicated to the works of John Harris 9780719098031

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From reason to practice in bioethics

CONTEMPORARY ISSUES IN BIOETHICS, LAW AND MEDICAL HUMANITIES Contemporary Issues in Bioethics, Law and Medical Humanities includes internationally respected book-length works – primarily monographs and edited collections, but also specialist textbooks – on bioethics and the humanities. The series focuses on the strong foundations and reputation of the University of Manchester’s world-leading scholars in bioethics, and its internationally respected Centre for Social Ethics and Policy and Institute for Science, Ethics and Innovation. It includes publications from across the humanities, brought to bear on contemporary, historical, and indeed future bioethical questions of the highest social and moral concern and interest.

Edited by John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner

From reason to ­practice in bioethics An anthology dedicated to the works of John Harris

Manchester University Press

Copyright © Manchester University Press 2015 While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without the express permission in writing of both author and publisher. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for

ISBN  978 0 7190 9623 5  hardback First published 2015 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset in 10/12 Sabon by Servis Filmsetting Ltd, Stockport, Cheshire

Dedicated to John Harris A man for all seasons: incomparable friend and colleague, true leader of thought, and inspirational intellectual

Contents

List of contributors page ix Series editors’ forewords xvi Acknowledgements xx Part I – Introductions  1 Editors’ introduction 3 John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner  2 Thought and memory 16 John Harris Part II – Grounding moral arguments  3 On moral nose 33 Jonathan Glover  4 Hanging around with Jackson: consistency in ethical argument, and how to avoid it Richard Ashcroft

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 5 The unbearable desire for explicitness and rationality in bioethics56 Michael Parker and Micaela Ghisleni  6 Moral epistemology and the survival lottery  64 Torbjörn Tännsjö  7 Harris and the criticism of the status quo Florencia Luna

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 8 The natural as a moral category 85 Harry Lesser

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Contents

 9 Making sense of human dignity 92 Deryck Beyleveld 10 Why we should save the anthropocentric person 102 Simon Woods Part III – From ethics to policy and practice 11 Why the reasonable man is not always right? 119 Margaret Brazier 12 Why the body matters: reflections on John Harris’s account of organ procurement Alastair V. Campbell

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13 Harris’s principle of justice in health care 142 Ruth Macklin 14 Eqalyty revisited 152 Andrew Edgar 15 The safety of the people and the case against invasive health promotion 163 Andreas Hasman 16 Could we reduce racism with one easy dip? What a thought experiment about race-colour change makes us see 170 Margaret P. Battin 17 Against mumps, Meursault, McDonald’s and Marlboro: on the immunisation of children against smoking, alcohol and drugs Inez de Beaufort

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18 Killing and allowing to die 190 Raanan Gillon Part IV – John Harris responds 19 Response to and reflections on chapters 3–18 201 John Harris Bibliography 226 Index 238

Contribut

Contributors

Richard Ashcroft is Professor of Bioethics in the School of Law at Queen Mary, University of London. He taught previously in the medical schools of Queen Mary, Imperial College London, and Bristol University. He trained in history and philosophy of science at Cambridge University, where he received his BA and PhD degrees. He was Deputy Editor of the Journal of Medical Ethics under John Harris and Søren Holm, and serves on the editorial boards of several journals including Bioethics, Developing World Bioethics, and the Medical Law Review. He is a member of the Tobacco Advisory Group of the Royal College of Physicians and of the Ethics of Research and Public Involvement Committee of the Medical Research Council. He works mainly on public health ethics, human rights, and research ethics, and is co-Director of the Centre for the Study of Incentives in Health. He is a Fellow of the Society of Biologists, and has held visiting appointments at Bristol, Melbourne, and the Ethox Centre, Oxford. Margaret P. Battin (nicknamed Peggy) is Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine, Division of Medical Ethics, at the University of Utah. She is a graduate of Bryn Mawr College, and holds an MFA in fiction-writing and a PhD in philosophy from the University of California at Irvine. The author of prize-winning short stories and recipient of the University of Utah’s Distinguished Research Award, she has authored, co-authored, edited, or co-edited some twenty books, among them a study of philosophical issues in suicide; a scholarly edition of John Donne’s Biathanatos (Taylor and Francis, 1982); a collection on age-rationing of medical care and two collections of her essays on end-oflife issues, The Least Worst Death (Oxford University Press, 1994) and Ending Life (Oxford University Press, 2005). She is lead author for The Patient as Victim and Vector (Oxford University Press, 2009) and for Drugs and Justice (Oxford University Press, 2008). In 2000, she received the Rosenblatt Prize, the University of Utah’s most prestigious award. She has been named one of the ‘Mothers of Bioethics’.

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Deryck Beyleveld is Professor of Law and Bioethics at Durham University and Professor of Moral Philosophy and Applied Ethics at the University of Utrecht. He is the author, inter alia, of the Dialectical Necessity of Morality (Chicago University Press, 1991), a comprehensive defence of Alan Gewirth’s moral epistemology, and co-author with Roger Brownsword of Law as a Moral Judgment (Sweet and Maxwell, 1986), Human Dignity in Bioethics and Biolaw (Oxford University Press, 2001), and Consent in the Law (Hart, 2007), all of which apply Gewirthian theory. Before taking up his post at Durham, he was Professor of Jurisprudence at the University of Sheffield, where he founded the Sheffield Institute of Biotechnological Law and Ethics in 1993, which he directed until 2006. He is currently undertaking a comprehensive study of the differences and similarities between Gewirthian and Kantian moral theory and exploring the relationship between aesthetics and morality. Margaret Brazier is Professor of Law at the University of Manchester. She is co-author with Emma Cave of Medicine, Patients and the Law (fifth edition, Penguin, 2011). With Suzanne Ost she wrote Bioethics and Medicine in the Theatre of the Criminal Process (Cambridge University Press, 2013), and she is a former Editor-in-Chief of the Medical Law Review. She has written widely in the area of medical law. Her public appointments include being Chair of the Animal Procedures Committee (1993–98), Chair of the Review of Surrogacy Arrangements (1996–98), Chair of the Retained Organs Commission (2001–2004), and Chair of the Nuffield Council on Bioethics Working Party on The Ethics of Prolonging Life in Fetuses and the Newborn (2004–2006). Alastair V. Campbell is the Chen Su Lan Centennial Professor of Medical Ethics and Director of the Centre for Biomedical Ethics in the Yong Loo Lin School of Medicine, National University of Singapore. Previously he was Professor of Biomedical Ethics, University of Otago and then Professor of Ethics in Medicine, University of Bristol. He is a former President of the International Association of Bioethics. He is a recipient of the HK Beecher Award, Honorary Vice-President of the Institute of Medical Ethics, elected Fellow of the Hastings Centre and elected Corresponding Fellow of the Royal Society of Edinburgh. His recent books include Health as Liberation (Pilgrim Press, 1996), Medical Ethics (with D.G. Jones and G. Gillet, third edition, Oxford University Press, 2005), The Body in Bioethics (Routledge-Cavendish, 2009) and Bioethics: the Basics (Routledge, 2013). He was formerly chair of the Ethics and Governance Council of UK Biobank and Vice-Chair of the UK Retained Organs Commission. Professor Campbell is currently a member of the Bioethics Advisory Committee to the Singapore Government and of the National Medical Ethics Committee of the Ministry of Health. He is also a Board Member of the Singapore National Medical Research Council.



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Sarah Chan was educated at the University of Melbourne where she received degrees in law and biological science. She spent a number of years as a research scientist in a molecular biology laboratory before taking up an opportunity to work in the area of science policy and stem cell ethics. In 2005 she moved to Manchester where she took up a research post at the Centre for Social Ethics and Policy, University of Manchester, and studied for a Master’s degree in Health Care Ethics and Law. Since 2008 she has been a Research Fellow in Bioethics and Law at the University’s Institute for Science, Ethics and Innovation, and is now Director of the Institute. Her research interests and publications cover areas including the ethics of gene therapy and genetic information, enhancement, research ethics, stem cells, animal ethics, transhumanism, and the ethics of science and innovation. John Coggon is Professor of Law and the Philosophy of Public Health in the School of Law, University of Southampton. His research examines legal, moral, and political theory, particularly in regard to human health and welfare. The main focus of his work is on public health broadly conceived, exploring questions concerning the source, scope, and limits of the State’s role in securing people’s welfare, and the basis and extent of individual and social responsibility for doing so. He is also interested in global health, especially questions concerning the limits to transnational obligations for human welfare. Dr Coggon is Editor-in-Chief of Health Care Analysis. He is the author of What Makes Health Public? (Cambridge University Press, 2012). With A.M. Viens and Anthony Kessel he edited Criminal Law, Philosophy and Public Health Practice (Cambridge University Press, 2013); with Swati Gola, Global Health and International Community (Bloomsbury Academic, 2013); and with Simona Giordano and Marco Cappato, Scientific Freedom (Bloomsbury Academic, 2012). Inez de Beaufort is Professor of Health Care Ethics and head of the Department of Medical Ethics and Philosophy of Medicine at the Erasmus Medical Centre Rotterdam. Although of an ‘omnivoric’ ethical disposition recurring research themes are ethics and: obesity, paediatrics, ageing, beauty, enhancement, and ethics in fiction. With Frans Meulenberg she wrote a medical ethical soap in the Journal of Medical Ethics. She has been a member of different local, national and international ethics committees. She is an Honorary member of the Dutch Health Council, a member of a regional euthanasia committee, the Health Care Package Appraisal Committee, the European Group on Ethics in Science and New Technologies, the Board of the International Association of Bioethics (IAB), and was organiser of the IAB Congress in Rotterdam 2012. John Harris has been an important teacher and colleague throughout her career. Andrew Edgar is Reader in Philosophy at Cardiff University, UK. His background is in social theory (with a DPhil on Adorno), and he teaches

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a range of undergraduate and postgraduate philosophy courses. His research is at the overlap of philosophy, social theory and cultural theory. He specialises in German philosophy, particularly Habermas and Adorno, Political Philosophy, and the Philosophy of Medicine, Philosophy of Sport, and Philosophy of Art. He was until January 2014 Editor of Health Care Analysis. Micaela Ghisleni is Adjunct Professor of Ethics at the Faculty of Engineering Polytechnic of Turin, Italy. Her areas of interest are moral philosophy, bioethics, ethics of health care communication, and gender issues. She graduated in Philosophy with a thesis on bioethics and genetic information and has become a Doctor of Philosophy with a thesis on ethics of evidence-based medicine. As a researcher, she was responsible for the Unit of Bioethics, Section of Epidemiology and Life Sciences at the Institute for Scientific Interchange Foundation in Turin. As a teacher, she was Adjunct Professor of Principles of Biomedical Ethics in the Faculty of Medicine and, after this, she has had a research grant for the ideation of the course dedicated to medical students Humanitas: History of Medicine, Ethics, Philosophy, and Law. She has lectured also in the Master’s degree in Bioethics and Applied Ethics at the Faculty of Philosophy, University of Turin. Raanan Gillon is a hybrid of retired NHS GP and philosopher. He is Emeritus Professor of Medical Ethics at Imperial College London, where he still does some teaching, and Honorary President of the Institute of Medical Ethics. He was Editor of the Journal of Medical Ethics from 1980 to 2001. He has published extensively on medical ethics and his elderly book Philosophical Medical Ethics (Wiley, 1985) is in its 13th print, with a second edition in ‘very prolonged gestation’. He was Senior Editor of and contributor to a massive and prize winning multi-author textbook, Principles of Health Care Ethics (Wiley, 1993). In 1999 he was co-recipient with Alastair Campbell (the medical ethicist, not the political aide) of the American Hastings Center Beecher award for contributions to ethics and the life sciences. He is an enthusiastic proponent of ‘the four principles approach’ both for medical ethics and for ethics in general. Jonathan Glover taught philosophy for 30 years at New College Oxford and has taught for sixteen years at King’s College London. His books include Humanity, a Moral History of the Twentieth Century (second edition, Yale University Press, 2012) and Alien Landscapes? The Interpretation of Disordered Minds (Harvard University Press, 2014). John Harris is Director of The Institute for Science, Ethics and Innovation at the University of Manchester, where he is Lord Alliance Professor of Bioethics. He was joint Editor-in-Chief of the Journal of Medical Ethics (2005–2011) and was a member of the United Kingdom Human Genetics



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Commission from its foundation in 1999 until August 2010. His books include: Clones Genes and Immortality (Oxford University Press, 1998); Bioethics (Oxford University Press, 2001); with Justine C. Burley, A Companion To Genethics: Philosophy and the Genetic Revolution (Basil Blackwell, 2002); On Cloning, (Routledge, 2004); Enhancing Evolution (Princeton University Press, 2007). In September 2006 The Independent included John Harris in ‘The Good List’, purportedly a list of ‘the fifty men and women who make our world a better place’. On 6 September 2008 he featured in The Times ‘Lifestyle 50 – The top fifty people who influence the way we eat, exercise and think about ourselves’. The Times citation noted ‘His book Enhancing Evolution is hugely influential’. Harris has also appeared (as himself) as a minor character in novels by authors as diverse as Alexander McCall Smith (The Careful Use Of Compliments, Leslie Brown, 2007) and Dean Koontz (One Door Away from Heaven, Headline, 2001 ), and is one of Nick Baker’s Groovy Old Men (Nick Baker Groovy Old Men (Icon Books Ltd., 2008). Andreas Hasman is an advisor on health policy at the World Health Organization. He previously headed the medical revalidation department at the Royal College of Physicians of London and the Royal Pharmaceutical Society of Great Britain. He has published papers in bioethics on issues including vaccination, resource allocation, need assessment, accountability for reasonableness, and direct-to-consumer advertising in healthcare. Søren Holm is Professor of Bioethics and Director of the Centre for Social Ethics and Policy at Manchester University’s School of Law. He is a medical doctor and philosopher and has previously worked at the Universities of Copenhagen and Cardiff. He holds a permanent visiting chair in Medical Ethics at the University of Oslo and is a former member of the Danish Council of Ethics and the Nuffield Council on Bioethics. He was President of the European Society for Philosophy of Medicine and Health Care from 2008–2010 and is the current Vice-President of the International Association of Bioethics. He was joint Editor-in-Chief of the Journal of Medical Ethics (2005–2011) and is currently Editor-in-Chief of Clinical Bioethics. His main research interests are research ethics, reproductive ethics, resource allocation in health care, and the relation between philosophy of medicine and bioethics. John Harris supervised his Masters dissertation in Health Care Ethics and Law 1989–90. Thomasine Kushner is Co-Editor of the Cambridge Quarterly of Healthcare Ethics, Senior Bioethicist with the California Pacific Medical Center Program in Medicine and Human Values in San Francisco, and Co-Director, with Yves Agid, of ICM’s Neuroscience, Ethics, and Society project in Paris. She taught bioethics at the University of California, Berkeley, for fifteen years. Selected publications include: Birth to Death: Science and

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Bioethics (Cambridge University Press, 1996), Asking to Die: Inside the Dutch Debate about Euthanasia (Kluwer Academic Publishers, 1998), Ward Ethics: A Case Book for Doctors-in-Training (Cambridge University Press, 2001), and Surviving Health Care: A Manual for Patients and Their Families (Cambridge University Press, 2010). Harry Lesser is Honorary Research Fellow in Philosophy at Manchester University, having been a Senior Lecturer in Philosophy until his retirement in 2008. His teaching has included Philosophy of Law, Medical Ethics and Philosophy of Psychiatry. He has published over fifty articles and chapters in edited books, mainly in the field of moral and social philosophy and in particular in medical ethics. He has also edited and contributed to three collections of papers in the field of medical ethics: Ethics, Technology and Medicine (Avebury, 1988); Ageing, Autonomy and Resources (Avebury, 1999); and Justice for Older People (Rodopi, 2012). Florencia Luna is Principal Researcher at CONICET (National Scientific and Technological Research Council), Argentina, and Director of the program of bioethics at FLACSO (Latin American University of Social Sciences). She was President of the International Association of Bioethics (2003–2005), won the Guggenheim Foundation Fellow (2006), and was a visiting researcher at the Brocher Foundation (2011–13). She is an Expert for the World Health Organization (WHO), where she is a member of the Scientific and Technical Advisory Committee on Tropical Disease Research WHO (2011–). She was on the Steering Committee of the Council for International Organizations of Medical Sciences working on the International Ethical Guidelines for Biomedical Research Involving Human Subjects (2002). Dr Luna has been Editor of the journal Perspectivas Bioéticas since 1996. She has published articles in national and international journals, and written several books, including Bioethics and Vulnerability: A Latin American View (Rodopi, 2006), and Reproducción Asistida, Género y Derechos Humanos en Latinoamérica (San José, Costa Rica, IIDH, 2008). Ruth Macklin is Professor of Bioethics in the Department of Epidemiology and Population Health at Albert Einstein College of Medicine in the Bronx, New York. She received a BA with Distinction from Cornell University and an MA and PhD in Philosophy from Case Western Reserve University. She has more than 250 publications in professional journals and scholarly books in bioethics, law, medicine, philosophy, and the social sciences, in addition to articles in magazines and newspapers for general audiences. She is author or editor of 13 books, including Against Relativism (Oxford University Press, 1999), Double Standards in Medical Research in Developing Countries (Cambridge University Press, 2004), and Ethics in Global Health: Research, Policy and Practice, (Oxford University Press, 2012). Dr Macklin is an elected member of the Institute of Medicine of



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the National Academies of Science and serves as a consultant to the World Health Organization. She currently co-directs a National Institutes of Health-sponsored Training Program on Research Ethics, which takes place in Buenos Aires, Argentina. Michael Parker is Professor of Bioethics and Director of the Ethox Centre at the University of Oxford. His main research interest is in the ethics of collaborative global health research. Together with partners at the Wellcome Trust Major Overseas Programmes (MOPs) in Viet Nam, Malawi, ThailandLaos, Kenya, and South Africa he co-ordinates the Global Health Bioethics Network which is a programme to carry out ethics research and build ethics capacity across the MOPs. Professor Parker also leads the ethics programme of the Malaria Genomic Epidemiology Network (MalariaGEN), which carries out genomic research into severe malaria in childhood at 30 sites in 21 countries. His other main research interest is in the ethical aspects of the clinical use of genetics. Since 2001, he has co-ordinated the Genethics Club – a national ethics forum for health professionals and genetics laboratory staff in the United Kingdom to discuss the ethical issues arising in their dayto-day practice and to share good practice. This work has been published as Ethical Problems and Genetics Practice (Cambridge University Press, 2012). Torbjörn Tännsjö is Kristian Claëson Professor of Practical Philosophy at Stockholm University. He has defended moral realism, utilitarianism and pro-choice positions in medical ethics. Some of his books are Moral Realism (Rowman and Littlefield, 1990), Conservatism for Our Time (Routledge, 1990), Populist Democracy (Routledge, 1993), Hedonistic Utilitarianism (Edinburgh University Press, 1998), Coercive Care (Routledge, 1999), Understanding Ethics (third edition, Edinburgh University Press, 2013), Global Democracy (Edinburgh University Press, 2009), and From Reasons to Norms (Springer, 2010). He is now working on a book entitled Taking Life: Three Theories on the Ethics of Killing (Oxford University Press, forthcoming) and the statistics presented in the chapter in the current book derives from this work. Simon Woods is Senior Lecturer and Co-Director of the Policy Ethics and Life Sciences Research Institute (PEALS) at Newcastle University. PEALS is engaged in research, teaching and outreach on the ethical and social implications of the life sciences, and Simon’s contribution is across this range but with special responsibility for teaching and learning. Simon has ten years clinical experience as a cancer nurse and holds bachelor and doctoral degrees in philosophy. He has conducted empirical and conceptual research and has taught and published widely in the health care ethics field.

Series editors’ forewords

Series editors’ forewords

This book has been put together by John Harris’s peers and colleagues as an attempt to express the great respect we have for him as a scholar and a friend. Along with this volume other papers from this project have already been published as a special edition of the Cambridge Quarterly of Healthcare Ethics (January 2014). John has been my boss, my mentor and my friend for over twenty years now. The very first time I met him was when he interviewed me for my first post at the University of Manchester. I knew his work and at twenty-three I was slightly star struck when I met him (if I remember rightly he was on TV that morning as I was getting ready for the interview). But despite this he both put me at ease and offered me the job, and so started my academic career and my passion for all things bioethics. It was not only the job offer that started my career but John’s ability to inspire even the most junior of researchers to have confidence in their own ideas and arguments. John and I have spent twenty years now arguing about all sorts of things but particularly issues around screening for disability and even though he thinks I’m wrong I can also see he is proud of the progress I have made. I bumped into John before giving a paper at a conference last year where I provided a fairly strident critique of his work. I said to him ‘What a great job I have. I can be rude about my boss and still call it work!’ It is this generosity of spirit as well as his true commitment to philosophical inquiry that has made him such a great colleague and mentor as well as such an accomplished philosopher. Simona and I are delighted to introduce this book as the first in our new series Contemporary Issues in Bioethics, Law and Medical Humanities. It seems very fitting indeed that this first book pays tribute to the man who was so important to both of our careers. It is also very fitting that the diversity of content reflects the diversity of John’s work and the diversity of the people he reaches with this work. John is a man whose persistent and unfailing commitment to reason has led him to change the face of applied philosophy and the academic lives of



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many of his colleagues. Although much of his work has proved controversial his arguments reflect his unerring commitment to the basic moral equality of persons. John continues to be a leader in his field and an inspiration to a new generation of researchers and I am sure he will continue to court both controversy and acclaim in equal measure as his remarkable career continues. Rebecca Bennett

John is a man of nearly unearthly coherence. Since I met him, he has remained faithful, I believe, to most if not all his ideas: the embryo is an acorn (not a tree); it is better to live better than to live worse; poverty is bad; QALYs are worse than bad … He has also been persistently and unfailingly committed to reason; convinced antisentimentalist, he has with intact sagacity disentangled the terms of a wide spectrum of moral dilemmas, unravelled flawed arguments, and continued to engage the students and the public with unfluctuating wit. Even his flaws are enduring (for example, I have never figured out whether he is a committed liberal or a committed utilitarian – sometimes I have asked him whether he thought he could be both, but he has evaded my probably misled observation again with uncompromising coherence). John even looks the same to what he looked like twenty years ago. However he does it, his attempts at achieving unremitting youth and perhaps even eternal life blanch the whole endeavours of the Chinese alchemists. Let me say a bit more about him as a philosopher and about his work. Twenty or more years ago, in Italy, where I come from, John Harris was, as we used to call those like him, a ‘sacred monster’: not to be taken literally. It meant that he was one of those thinkers who (whether or not you would agree with them, or whether or not you found that their thinking was impeccable) had changed, and changed for good, the intellectual panorama in his area of study. John, with a few others, had been a truly original thinker. Anyone who wanted to acquaint themselves with applied ethics or bioethics, study and write about it, could not do that without reading John’s works. So as young students of philosophy, in a very political Rome of the early 1990s, in an extremely political (and red) Faculty of Philosophy, if you were interested in applied ethics you needed to read John Harris. His work ventilated new (and often radical) ideas, novel topics, and a new language, a language that was accessible, clear, and fun. Circumstances and the economic crisis unveiling slowly in my home-land pushed my trajectory in the direction of John. Professor John Harris had

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agreed to supervise my doctoral thesis. As we say in Italy, ‘in a flap of wings’ I landed in the rainy Mancunian Autumn. Meeting John was a breath of fresh air (quite literally, as the Rome I had left was continuing to bless us with the warm colours and the placid Mediterranean ‘vento settembrino’). I did not need a suit, and he wasn’t wearing one either. Both he and I were wearing trainers (talking about coherence, of the same kind and colour you will see him wearing today). John has been the best mentor I could have hoped for. I knew he was a terrific philosopher: but I didn’t know how kind he was, and how much joie de vivre he had, a joy that made working a delight, and the department he led flourishing, happy, cohesive and prosperous of ideas. Meeting John has raised my hope in fortune to a near certainty. John has mentored, with his own teaching and writing, hundreds of people, not just me: he continues to do so, and we can rest reassured that he will persevere in his writing and teaching, because, as noted before, when John chooses something, that something is forever. So, it is with utmost and undeserved pride that I introduce this book as the first for our series. I am not at all surprised of course that a book of this kind has been written. Many – most – of us want to continue to engage with John: he has been a constant inspiration, and this book is, among other things, a way of remarking to John that we still have something to say to him, we still want to chat, think and argue with him. I shall not repeat the summary of the chapters, which the book editors have so well illustrated. The quality of these chapters is superb; each chapter is markedly different to the others: this renders this work stimulating and original. This book is like entering a room with different people, with noticeably different backgrounds and interests, and yet all with an intellectual debt to John, and all with something important and valuable to say. This could not reflect better the inspiration that John has given to us all, in the face of the vast assortment of our interests: John has probably written about anything on the bioethics agenda, he will discuss anything, will engage with the most diverse items and with the most diverse audiences. Coherently with the spirit of this book, some of these commentaries are critical, others are supportive, some are serious and some are jocose. To those who will perhaps flip through the pages of this book in a bookstore, I wish to say that this is a book that everyone with an interest in bioethics should have: all these contributions represent a development of some of the most important issues in contemporary applied ethics, which John has explored during his career. It is stimulating, interesting, well written, and educational. Besides, it is a fun book to read: the more scholarly chapters are paired up with entertaining and at times jocose commentaries. This makes the book of import also to those without a direct interest in bioethics; moreover, it treats topics that should concern us all – it delves into theoretical issues such as what defines us as persons and what makes us valuable, and also explores more ‘applied’ themes, such as organ procurement, the



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treatment of people afflicted by HIV/AIDS globally, resource allocation, and much more. Every intelligent reader will find in this book inspiration in the variety of the themes studied and in the original way in which theses are explored. John has pushed the boundaries of the ways in which many of us think: this book is not only a tribute to his work, but renews this endeavour and gives it a new impetus. Simona Giordano

Acknowledgements

This book project began some time ago under the stewardship of Matti Häyry, Tuija Takala, and Søren Holm. We are grateful to Matti and Tuija for all of the work that they did in commissioning the original set of essays, some of which have since been published elsewhere, including in a special section of the Cambridge Quarterly of Healthcare Ethics, volume 23:1, in January 2014. We would like to thank all the authors who agreed to participate in the original work, and especially the contributors to the current volume. The efforts and energy of all of the authors demonstrate the importance both of John Harris’s work, and of John himself, to so many of us in the field. We are proud to have been involved in this work, which celebrates John’s contributions to bioethics, and we happily record our gratitude to him in particular for his chapters in the book. We think it is most fitting that this book marks the start of a new bioethics book series with Manchester University Press, and thank Becki Bennett and Simona Giordano, the series editors, for their help, support, and advice during the book’s production. We also owe thanks to David Lawrence for his editorial assistance, and to the staff at Manchester University Press.

Part I

Introductions

1

Editors’ introduction John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner

Introductions Bioethics is an extraordinary field of analytical inquiry and practical endeavour. Its growth, impact and diversity have proven as remarkable as the range of interests and perspectives that are brought to the table in its name. Definitions of the field abound. Debates rage not just within it, but also about it. The literature is filled with contested accounts of its history, scope, nature, purpose and methods. For some it is a discipline; specifically, a subset of ethics or practical philosophy. For others it is a general area of study, identifiable more by the types of issues that we find problematised than by any one particular means of finding something to be problematic. So many academic disciplines are represented in bioethics that it would be invidious to try to list them comprehensively, for the certain fear of offending colleagues whose approaches would be left out. Contributions come from the humanities – including philosophy, of course, but also law, politics, history, literature and others – as well as the social, behavioural, biomedical, health, environmental and natural sciences. The breadth of the field, as well as the contestability of its boundaries, make a hard task of a pithy presentation of what bioethics is, still less what it does. Nevertheless, there are familiar questions, themes, ideas and approaches that pervade a great many, if not all, of bioethics’ distinct but somehow connected realms. Similarly, whilst we find some scholars who have carved out niche sub-specialities – people whose expertise is simply in euthanasia, or public health, or reproduction, or climate change, for example – others have had a role (whether or not they accept the claim) in shaping and speaking to the field as a whole; true expert generalists. Foremost amongst this latter breed of intellectual in UK bioethics is John Harris, a scholar whose work has been pivotal in the shaping of bioethics both in the UK and across the world. His expertise is in philosophy, with a particular focus on moral and political theory. But the development and application of his ideas over the last four and some decades have been born of discussions, debates and collaborations with academics from across disciplines, with public figures

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Introductions

and policy-makers, practitioners from a huge range of backgrounds, and many others too. John Harris is the quintessential public intellectual, and that fact no doubt owes much to his unabating appetite for understanding important aspects of our world, and working to make the world a better place. It is therefore with considerable pleasure that we introduce a collection of original essays, which together serve as a foundational text on bioethics, and each of which has been written in John Harris’s honour. As the book’s title suggests, the aim of this work is twofold. It is, we hope, a fitting tribute to John’s huge contribution to scholarship and practice. And it also interrogates – and perhaps will help some readers to resolve, at least at some level – one of the core difficulties in bioethics, whatever any given practical focus may be: the process of establishing first principles, working from them to theory, and from theory to practical solutions, be they in the form of individual moral imperatives or large-scale policy. It is with wry amusement (and perhaps understatement) that we would observe that John Harris is a divisive figure in bioethics. Whilst we would stress that our intention – begging John’s pardon for an abuse of his beloved Shakespeare – is to praise him, not to bury him, the following essays demonstrate the many points at which disagreement arises with the claims he has made and championed over the years. And as much – perhaps more – can be learned from points of disagreement as it can be from points of apparent consensus. John is celebrated for his commitment to the conclusions of his moral argument, even where these fly in the face of ‘common sense’, invoke some ‘yuk factor’, or discount the emotional or other non-moral reasons that motivate people’s practical reasoning. From amongst the essays below, we find various representations of John’s approach. Jonathan Glover, for example, characterises the ‘John Harris tone of voice’ as advancing ‘gleefully disrespectful questioning’; Florencia Luna praises his position ‘in the tradition of the critical intellectual and the questioning philosopher’; Margot Brazier recognises John’s place with those who ‘would not bend their principles to suit princes’. The chapters in Parts II and III of this volume (on which more detail in the next sections) pick up different points of analysis, and raise questions about how and what we should think, and why. In Part IV, John takes the chance to respond. Prior to entering debate, however, there is a wonderful introductory chapter also written by John. It contains a biographical as well as an intellectual history; a rare contribution not just because of the insights it lends, but also the thoughts and emotions that it inspires. Working with John, as each of us has the privilege of doing, one is often confronted by suppositions and ideas about what John ‘is’: there are ‘folk figures’ of John Harris. These figures are often the product of (sometimes amusing, sometimes charming, sometimes misguided) inference. The opportunity to read about the world that shaped the scholar, rather than simply the shapes the scholar would put on the world, is something that itself merits celebration. Those who



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 5

fervently disagree with John’s ethics will likely not be moved to a change of mind by his account in the next chapter (nor is that his intention in writing it!). But when we visit ideas not just about the quality of argument in bioethics, but also the shaping of bioethics, the value of his opening contribution is inestimable; perhaps more than he realised when writing it. It is excellent and most apt to allow the first substantive contribution to the volume not simply to set out an overview of the body of John’s work, but also to give life to it. Bioethical debates: from theory to practice Following this editors’ introduction, and John Harris’s chapter on ‘Thought and Memory’, the book is split into three further parts. Part II examines the very grounding and formulation of moral argument. Practical reasoning in philosophical bioethics relies on the quality of foundational ethical premises, and the quality of analysis given these. Discussion of such questions brings in perspectives from ethics, but also epistemology, metaphysics and other areas of philosophical and social inquiry. The controversial questions entailed in formulating basic moral arguments are particularly acute in relation to John Harris’s work, which has proven so controversial precisely because of his moral concepts of personhood and the good, and the strength of his commitment to reasoned consistency in formulating moral imperatives given responsibilities to and for each of these. The eight chapters in Part II speak to different and overlapping problems and concerns with this primary exercise in bioethical theorising. The opening chapter, by Jonathan Glover, picks up Harris’s discussion of George Orwell’s ideas about ‘moral nose’. Orwell spoke favourably of the way that we can sense when a situation is morally problematic, yet Harris finds such a faculty, which relies precisely on impression rather than reason, to be dangerous: it is dangerous because it may cause harm (e.g. think of the ‘moral’ sense about Jews that led to the atrocities perpetuated in Nazi Germany, and elsewhere); and it is dangerous because it fails to allow moral actors to distinguish unfounded prejudice from sound moral evaluation. It is Glover’s purpose to give some defence to the role of intuition in ethical assessment. In part, his argument reinforces Harris’s own concerns about appeals to the ‘yuk factor’. But Glover also notes that abstract thinking alone can itself be bad for actors in the real world, where it can be more dangerous to intellectualise the wrongs of, say, torture, than it is for us simply to possess an intuitive disgust of the practice. Drawing from prominent examples at the time of drafting his paper, Glover’s analysis suggests that there are distinct roles that might be given to the use of moral nose. Whilst it is a problematic concept for the closing down of arguments, it serves an important function in alerting us to matters that require moral scrutiny. After all, we need triggers for thought and action. Furthermore, central to us as living, human, moral agents is the capacity for moral nose.

6

Introductions

Our moral psychology requires the ability to empathise with others, and to recognise their pain and the harm that it can do. As such, whilst the dangers Harris alerts us to are important ones, we should, on Glover’s account, retain some legitimate role for moral nose. In chapter 4, Richard Ashcroft continues the focus on the idea of rationality, and consistency in thinking in moral argument, and its centrality in Harris’s ethics. The practical springboard for Ashcroft’s analysis is one of the perennial problems in bioethics. He starts with the idea that people see a moral inconsistency in a position that permits abortion, yet prohibits infanticide. And he adds to this the practice of looking for a morally relevant distinction between the two, rather than submitting to the apparent demands of reason and changing one’s view on either abortion’s permissibility, or the impermissibility of infanticide. In short, the chapter explores the (supposed) need for reasoned, rational, consistent, logical argument in ethics. What alternatives might there be? One is to study perception rather than reason, but Harris – as discussed in Glover’s chapter – is opposed to its reliability. So Ashcroft explores various alternatives to allowing logic to bind us in ethical deliberation. In his argument, particularism seems to lead to the best way out, but he cautions we still need to be wary of assertions that we can satisfactorily maintain ill logic. However, his concluding comments take us beyond logic to questions in epistemology: the key to compelling practical argument will not be just the strength of logic, but the strength of the moral proposition on which any formal reasoning is based. So in the abortion/infanticide example, our preeminent moral work is in establishing the truth of the relevant moral premise. As suggested in other chapters in Part II, whether we follow Harris or others on substantive premises, establishing them is a deeply complex problem for scholars in philosophical bioethics. Chapter 5, by Michael Parker and Micaela Ghisleni, commences with a quotation from Harris’s work that emphasises the need for people to explain why a moral claim is true. Parker and Ghisleni are particularly interested to explore this idea of a duty explicitly to give reasons. For one thing, they argue, it suggests that moral development is correlative with capacity for reason. For another, it suggests public duties; moral agents have to publicise the rationales for their beliefs and actions. As the authors note, Harris is hardly alone in espousing a view that has the capacity for morality develop with the capacity for reason, nor is he unique in arguing in favour of a need for the giving of reasons. However, Parker and Ghisleni offer various reasons to question the positions. First, drawing from Gilligan’s influential studies in psychology, they advance argument that sheds doubt on the idea that reason can provide the complete picture of what it is to be moral. This leads to further arguments about the roles of judgment, virtue and sensitivity to context, rather than imagining that more abstract rules can serve to determine questions of ethics. Assuming their claims stand, Parker and Ghisleni thus suggest that a wider concept of moral under-



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 7

standing is needed than that which would be provided by the rational processes typically attributed to Harris. The upshot is not a paper calling for a wholesale rejection of Harris’s means of bioethical inquiry. Rather, they contend that Harris fails to give the full ethical picture, accounting for empirical reality. Furthermore, whilst Parker and Ghisleni do not share the view that everyone has an obligation to account coherently and publicly for their reasons, they do agree that those in public positions of power (such as doctors) should be able to do so. And in this regard, it is right that Harris should push for it. In Chapter 6, Torbjörn Tännsjö moves directly into epistemological questions in bioethics. He opens with a reflection on contemporary trends in philosophical understandings of basic truth, contrasting foundationalism – where knowledge and understanding are based on the self-evident – and coherentism – where knowledge and understanding are based on a system that requires consistency with a person’s wider beliefs. In the context of moral philosophy, Tännsjö notes that foundationalism can lead to scepticism, given that what is self-evidently true varies between people and across time. Tännsjö does not aim or purport to answer the question of whether foundationalism or coherentism is a superior approach to understanding moral truth. Rather, he uses his chapter to explore coherentism, and examine the approach it lends to justification in moral theory (noting, as he does, that rather than provide a method it provides a criterion of justification). After all, we want our beliefs to be true, and coherentism is based on a search for truth. Nevertheless, and in a way that we might contrast with earlier chapters that have looked to deductive, logical reasoning, Tännsjö emphasises the role for inductive reasoning in practical ethics, and the strong role for ‘considered intuitions’ on which we can rely. He also notes the importance of thought experiments in tests of our moral understanding, and demonstrates his point through a discussion of his use of a modified version of John Harris’s celebrated idea of the survival lottery. This is one of various thought experiments that Tännsjö has employed in studies examining the ethics of killing, and the study of reasons that might be framed in terms of the sanctity of life, the right to life, and utilitarianism. As Tännsjö demonstrates, the use of thought experiments can enable you to recognise and interrogate your own ethics. The importance of challenging ourselves and others philosophically is a theme that is carried into chapter 7, where Florencia Luna discusses the role of philosophy and bioethics. Her analysis is informed by reference to John Harris’s approach and position in bioethics, but includes a much wider presentation of reflections on the use of philosophical ideas in evaluations of the status quo, and the role of public intellectuals. In Luna’s framing, we can look at the relationships that individual thinkers have with power, and with people in government. She distinguishes, amongst other things, the modernist role of ‘intellectual as legislator’ – whereby the moral expert would be taken to have the best access to truth, and would thus just declare what it

8

Introductions

is – and the postmodernist role of ‘intellectual as interpreter’ – a position in which the expertise comes in having access to a range of competing perspectives and being able to say what they mean. Within this framework, the intellectual as interpreter is directly involved in government, and thus has real power. The interpreter, by contrast, is more remote from power. Proximity to power is, Luna argues, an important point to think about, as is the nature of intellectuals’ reaction to power. It is possible to present historical claims about the impact – often the positive impact – that developments in thought have had on societies, including, for example, in emphasising and respecting minority voices. Regarding bioethics, we find a field that pushes philosophy and philosophers out of the ivory tower, and forces them to get their hands dirty. And within this, Harris and his affronts to dominant social dogma are crucial. In chapter 8, Harry Lesser looks to a distinct, but also prominent, question in bioethical reasoning. His concern is the concept of the natural, which – rather like moral nose and the yuk factor – can clearly be seen as doing quite a bit of normative work in bioethical reasoning. Lesser’s focus is on rationality, and which appeals in morality are appeals to reason. Whilst we find that appeal to what is natural is a common resort in everyday argument, there is on examination good reason to doubt its strength. To demonstrate as much, Lesser finds Harris’s work a useful starting point, given his famed application of reason to bioethical questions. Lesser explores first quite what ‘natural’ might denote as a moral category, before contrasting the formal validity of moral claims based on the natural with their ethical persuasiveness (points which we might contrast with those made, amongst others, by Ashcroft in chapter 4). Lesser’s analysis covers the difficulty of attributing a purpose to nature or history, and from there seeking to infer sound moral arguments. He also demonstrates errors made about classes of people – men, for example – by noting that there are distinctions between what is generally true of the group, and what is specifically true of an individual; such distinctions serve usefully to undermine hard claims about the truth of ‘natural’ properties. Lesser nevertheless suggests various reasons not to reject altogether the utility of claims about things being natural, arguing that often what is natural will also be the less harmful alternative. The upshot of his analysis is that in a foundational, metaphysical sense, ‘the natural’ is a category to be ignored. However, in giving empirical content to a rationally thought-through ethic, Lesser’s position is that the natural can be a helpful concept. In the next chapter, Deryck Beyleveld takes another concept that is often seen as foundational in philosophical bioethics, yet which is also often treated with wariness. His concern is with dignity, and he develops a defence of dignity as a core concept in bioethics. He starts by noting the proliferation of references to dignity in legal and regulatory measures – especially human rights instruments – whilst reflecting that philosophically dignity has largely been viewed as a Kantian idea. This philosophical perspective



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 9

permits of two views: dignity as an empowering concept, associated with a rationality-based understanding of autonomy; and dignity as a constraining concept, which places fetters on what we might choose to do. As Beyleveld notes, dignity’s critics, including Harris, are concerned with dignity serving as a constraint on legitimate action: here he cites complaints that dignity is too vague a concept, or is often simply empty rhetoric used to close down argument. He further notes that critics of dignity as empowerment complain that the arguments in its favour can be made without resort to dignity itself; concepts such as autonomy or capacity are sufficient. Against these views, Beyleveld’s position is that dignity is, in his words, ‘essential for bioethics’. He explores the concept as relating to the essence of personhood, persons being the focal subjects of moral concern. As he notes, there are plenty of arguments within bioethics that misapply dignity, or beg questions in their application (for example, in claims about means and ends in relation to human embryos). But dignity as empowerment requires an understanding, he argues, of vulnerable moral agents who (possibly) possess rights and require due recognition. Within his modified account of Gewirthian morality, justifiability demands a sensitivity to uncertainties about who is or is not an agent. Dignity as empowerment aids our understanding in this regard. The final chapter of Part II also focuses on personhood. Simon Woods pays tribute to the large body of work that Harris has created, but claims that Harris has failed to develop fully enough the foundational subject of moral concern: the person. He therefore uses his chapter to take issue with Harris’s account of the person, and to advance an argument in favour of a more embedded, human concept of the person. Woods’ argument is illuminating not simply for its substantive content, but also for the light it sheds on the importance of foundations in bioethics; again a theme that we see woven throughout Part II of this book. He demonstrates the difficulties that arise when we overestimate quite what a theory can achieve, and raises specific concerns for what he sees as an overreach of Harrisian rationality. For Woods it is a problem that Harris’s imperatives are wildly out of kilter with ‘everyday morality’. And beyond that, he suggests that Harris’s concept of the person, defined as an agent that is able to value its own existence, is too thin an idea. Whilst this person allows us to avoid accusations of speciesism, it underplays the importance of community in our understanding of morality, and thus places less emphasis on the moral importance of humanity. In substantiating this argument, Woods invites the reader to distinguish claims based on biology, which may be ill-founded as moral arguments, and arguments relating to humaneness, which have, he argues, their own special importance. A concept of the person that is too far abstracted from this is therefore problematically impoverished. Separately, Woods pushes Harris to provide a more explicit account of moral worth, to account for entities that matter morally even if they are not ‘persons’. Whilst Woods would favour a gradualist approach, he finds Harris’s theory to be too narrow, abstract, and remote from humanity.

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Introductions

Following these varied but connected chapters on the foundations of moral argument, the book moves in Part III from fundamental moral questions, to concerns for specific practical imperatives, with a particular focus on questions of policy. So much of bioethics concerns practice in public or quasi-public settings (such as hospitals, University laboratories), and touches on law and regulation (should abortion, euthanasia, or stem-cell research be lawful?; should the State be able to claim people’s organs after they die, or limit the freedom they have to make unhealthy choices?). Whilst moral argument and policy argument are both formally and substantively distinguishable, an important role for bioethicists – including Harris – is in speaking to the defensibility (or otherwise) of policy. As such, it is fascinating to look at a series of chapters that explore the marrying of ethical concerns and methods with the analysis or giving of practical imperatives. The first chapter of Part III is written by Margaret Brazier, an academic lawyer who has worked alongside John Harris since the 1980s. Brazier’s chapter revisits a question on which she and Harris have long disagreed: the validity of laws and policies governing posthumous organ transplantation. Brazier notes the strength and consistency of Harris’s views, and outlines their rational foundations. She is clear about his commitment to argument, and the price at which this has come. Despite the apparent virtue of his position, however, Brazier looks to the value of compromise in policy and the reasons why we might accommodate and respect apparently ‘irrational’ or ‘unreasonable’ systems of belief, even when doing so will cost the lives of people who might benefit from organs that will otherwise be lost. For Harris, where the harm will be great, a lot less is to be given to non-moral reasons (such as ones based on religious belief or emotion) than should be given to moral reasons. Brazier does not seek to deny or contradict Harris’s arguments about what becomes of our bodies after we die, or to refute the claims of the good that would be done in a world where more organs were available. However, she presents an apparent paradox. Harris’s standards of rationality do not fit comfortably on the actors to whom they supposedly relate; people do not share his rationality, yet we are entreated to behave as if they do. In Brazier’s argument, considerable importance remains in respecting people’s wishes even where these are not ‘rational’. The alternative (on pain of consistency) seems to be a great deal of State interference with our choices, where legal mechanisms are required to meet the ‘failings’ in our reasoning. In closing her chapter, Brazier reflects in a different way on Harris’s contributions to bioethics and law. She notes how he can be relied upon to test proposed reforms to law and policy. Whilst she cannot accept that moral foundations are the whole story, she reminds us how important it is to hold laws up to the sort of rational scrutiny that a Harrisian analysis commands. In chapter 12, Alastair Campbell continues with the practical focus on organ transplantation. This chapter looks at Harris’s arguments in favour of procurement policies, noting both Harris’s advocacy for mandatory procurement of organs from the dead, and for a market in organs of the



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 11

living. As highlighted in Brazier’s chapter, Harris’s position concerning the dead is that whatever interests survive our deaths, claims to posthumous control of the body are weaker than the compelling interests of the living who need transplanted organs. Campbell explores and rejects the idea that organs are a resource. As such, it is wrong, he suggests, to think of them as something that either can be sold on the market, or claimed as a subject of public ownership. Within this policy-framing, and in a way that again moves very neatly from the concerns of Part II, Campbell is interested in the weight that Harris claims for his concept of rationality, and the validity of Harris’s rejection of other widely held views about the body as to what can rightfully be done with it. For example, Campbell argues that Harris confuses the significance, say, to grieving relatives of the dead body with their mistaken belief that body parts will remain intact after death. Or Campbell suggests that Harris makes leaps in logic when moving from a position that holds that we can donate organs, to one that holds that we can sell organs. In these sorts of ways, Campbell shows not just what philosophy can do for our understanding of policy, but also what our appreciation of policy can do for our philosophical understanding. Claiming that Harris falls into a Cartesian mind/body dualism, Campbell looks to alternative methods of analysis that he argues would be useful in debates on organ policy: specifically, phenomenology, aesthetics, and anthropology. For Campbell, policy, practice, and indeed philosophy need to be able to account for valuing embodied existence. The next chapter, by Ruth Macklin, moves the focus. From a philosophical perspective, part of the work of bioethics in the policy arena is in shifting attention from basic theories of morality to theories more familiar to political philosophers, theories of justice that purport to mediate tensions fairly between individual and collective claims. Macklin’s interest here is in Harris’s views on justice in health care, and his claims in favour of a principle of equal opportunity. On this understanding, the opportunity to benefit from the health care system should exist for all equally, regardless of the chance or quality of benefit, or the amount of life that a patient has left. Within this framing, the focus in assessing the worthiness of a treatment is rooted in the patient’s conception of benefit, rather than that of the funder. Macklin is sympathetic with Harris’s aim of offsetting a commitment to optimal outcomes with a theory of fairness. However, she argues that he fails to look at principles of justice other than equal opportunity. Whilst that is apt for analysis of emergency care settings, it is not so suited to wider public health settings. So in her chapter, Macklin takes the practical problem of priority-setting for allocating limited antiretroviral drugs in resource-poor countries, and explains and explores some alternative approaches: treat like cases alike; utilitarianism; egalitarianism; ‘fair innings’; and prioritarianism. Her overall conclusion, given consideration of the impact of John’s model, is that it does not do enough to provide fair outcomes, either for individuals or society, and thus more nuance is needed.

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Introductions

In chapter 14, Andrew Edgar continues this theme. His aim is to revisit the concept of the Quality Adjusted Life Year – the QALY – which Harris has famously taken to task in a sustained manner over the past decades. Edgar stresses the importance of Harris’s interventions in these debates, but wishes to explore quite what is happening when quality of life is used as a measure in resource-allocation decisions. His argument defends a view that quality of life measures are in fact necessary to a proper understanding of the questions raised by resource-allocation problems. Following a presentation of QALYs and Harris’s objections, Edgar suggests that we are wrongly identifying QALYs if we see them as a tool for making allocation decisions within the Accident and Emergency ward of a hospital. They are a tool for macro-level planning, rather than micro-level decisions. As such, the important moral and political question is whether QALYs are a bad tool for officials, not whether they would be a bad tool for doctors. This is not merely a conceptual point. Edgar embeds his analysis in the practical reality that resources have to be allocated in a planned way; resource decisions cannot be made in immediate response to the next problem that arises. As such, a sound analysis needs to account for the nature of people as social beings who accept and expect a particular sort of medical and administrative culture. And claims to legitimacy must be tied to this requirement. As Edgar’s argument develops, we find that the idea of quality of life may be a valid one to include in assessments. In his framing, the truth of this comes out especially by reference to ideas about deliberative democracy, and public discourse – or ‘negotiation’ – on the very meanings of health and illness. Edgar advises caution against prejudice feeding into such discourse, but maintains the importance of the link between public debate and the soundness of including quality of life concerns in resource allocation models. The following chapter is by Andreas Hasman. Whilst also focusing on a publicly funded health system, Hasman’s concern is somewhat distinct. Looking to Harris’s (as yet unpublished) works on the safety of the people, Hasman raises arguments about the justifiability of health policy, and in particular of public health promotion. The ideas to which he is responding are founded on Hobbesian arguments about the rights and duties of the State, and lead to claims that the State should ensure the availability of health care. However, if these arguments extend to duties to produce health promotion policies, Hasman has concerns. Where policy is not just about remediation, but also about addressing social determinants of ill health and disability, there are arguments – arguments of which Hasman is wary – that lifestyle choices cause disease, and people should be subject to duties to be healthy. Given this, he explores the question of when and why a policy would be unacceptable, even if it could be shown that it would improve health. For Hasman, the arguments in favour of providing a health care system can be founded in a rule of rescue and commitment to equal concern and respect. But whilst the State should protect people from harms, Hasman draws a line between protections from potential threats to health,



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 13

and immediate threats. There are clear utilitarian reasons at play here, and these can be evidenced, for example, in developing tobacco policies. But for Hasman, we should not lose focus – as neither Hobbes nor Harris would have us do – on the importance of allowing people to identify for themselves what is good: whilst the State needs to protect people, he urges, it cannot define for them what is good, other than in the safeguarding of third party interests. Chapter 16 changes the emphasis again. Here, Margaret Battin takes a key philosophical (and particularly John Harris) methodology, the thought experiment, and challenges the reader to visit questions about race. If we could easily change our skin colour, and thus experience being different colours, what would this teach us? The thought experiment is just that, of course. It is necessarily provocative, and certainly is not a policy proposal. But analysing it gives rise to many difficult questions both at the level of individual decision-making, and in relation to systemic problems. This is drawn out as, before engaging in ethical analysis, Battin considers different reasons why someone might choose to live for a while in a different colour. These cover questions of combating, or avoiding, individual instances of prejudice, seeking to ‘enhance’ status to avoid general instances of prejudice, pursuing particular jobs or professions, facilitating social interaction, pursuing cosmetic and aesthetic interests, and exploring self-identity. Battin’s analysis here uncovers deep matters of principle, but also exposes some uncomfortable truths about the non-ideal circumstances that play on people’s deliberations. This in turn gives rise to questions of how much we can, and should, compromise our principles given other concerns, such as prudential or aesthetic ones. With regard to morality, Battin argues that there is something troubling about the scenario that her thought experiment presents. She works towards finding out what that is, and what it teaches us about racism. In the end, the moral problem seems to be that racial prejudice may be rather more of a problem than many of us (like to) think. Inez de Beaufort follows in chapter 17 with a different thought experiment. Her focus revisits the public health theme. She presents the idea of a State vaccination policy that would protect people from Smoking, Alcohol, and Drugs (the ‘SAD programme’). The thought experiment includes alcohol as she thinks this may unsettle some double-standards. The import of the idea is that nobody who had been vaccinated would suffer for it in the sense that there would be no desire for cigarettes, alcohol, or drugs. As such, there would also be no concern about scrambles for illicit sources. We have, then, a (fictitious) policy proposal that cannot suffer objections based on real examples of prohibition. Despite the obvious health benefits, and this lack of suffering or wider civil unrest, de Beaufort is uncomfortable with the idea of SAD. Her chapter is therefore dedicated to exploring the reasons for this discomfort, by pushing the line of the pro-SAD reformers. De Beaufort’s reasoning works through a range of questions. She scrutinises the strength

14

Introductions

of an analogy with immunisation against disease, such as a mumps vaccination. Smoking, she argues, is not analogous with disease. But perhaps addiction is. Such reasoning, however, leads to problematic line-drawing exercises, and this in turn should cause us to doubt the critical value of the concept of addiction; at least in this context, rather than have it tell us what to think, the concept is so normatively loaded that we use it to produce the conclusion that we want. De Beaufort examines other arguments too, such as ones based on choice or vulnerability. But these cut both ways, she says. Some will wish they could have chosen, others will wish they had been spared choice. There are similar concerns about claims based on a concept of authenticity. In conclusion, de Beaufort’s chapter exhibits a considerable wariness of ‘healthism’. Within the context of public policy, she argues in favour of valuing liberty, and employing ‘nudges’ rather than enforcing social values, even where these will lead to better health outcomes. In the final chapter of Part III, Raanan Gillon raises one of the most discussed questions in bioethics, law and policy: the apparent distinction between killing and letting die, and its moral and political implications. Gillon’s starting point is one of agreement with Harris, that there is no necessary moral difference between killing and letting die. In this sense, he argues that we are right in believing that it is possible to kill by omission. An example that he provides from the medical context is of a doctor not giving insulin to a patient in a diabetic coma, with the intention that the patient should die. Thus, Gillon is comfortable with the moral (and legal) proposition that where there exists a duty to act, we can properly be accountable for our failures to act. And again within the medical context, he stresses that we can note that doctors have particular duties to keep patients alive. However, Gillon’s argument develops to support a subtly distinct line of reasoning: that it does not follow that there is necessary moral equivalence between killing and letting die. In this regard, he draws from various passages of Harris’s work, and questions whether or not he and Harris are in disagreement. His suspicion, given Harris’s framing of the matters, is that they do disagree. He notes that Harris distinguishes bare causal responsibility, and causal responsibility that we would combine with moral responsibility. He also notes that this may be positive or negative responsibility. But Gillon’s position develops on the basis that we should question an assumption that we are morally responsible for all harms and deaths for which we are causally negatively responsible. The demands of morality, otherwise, would be too high. Saving lots of lives, on Gillon’s argument, is supererogatory. Closing comments We are happy to leave the closing words of the book to John. In chapter 19, he responds directly to each of chapters 3–18. And so the debates roll on. To close our own chapter, though, we would like finally to reiterate the value



John Coggon, Sarah Chan, Søren Holm and Thomasine Kushner 15

and vitality of bioethics works such as those found below. The field as a whole owes so much to John Harris and the contributions that he has made. As time passes, bioethics expands and the depth and stretch of arguments increase. By offering a range of critical perspectives on grounding moral positions, and on seeing their practical and policy implications, we hope to have advanced what we, like John, see as a central purpose of bioethics: not just seeking to understand the world, but also looking at how it would be changed for the better.

2

Thought and memory John Harris

What is bioethics for? Indeed what is ethics for? Readers of this volume will themselves have formed their own ideas about what bioethics is in terms of the questions it addresses and its methods of inquiry. But, apart from its intrinsic interest, what makes bioethics worth doing, what makes it worthy of anyone’s attention? What I hope this introductory chapter will do is give some sense of what I have been trying to do in my life in bioethics, and of some of the influences and events that have shaped its course. In short, I hope to explain what brought me into bioethics and why I continue to feel that bioethics is important and worth the serious attention of anyone concerned with the future of humanity. I will try to sketch a sort of intellectual biography which may help to situate my ideas and approach to bioethics in some seminal events in my life. In a separate chapter at the end of the book, I will say some, necessarily very brief, things, if not in response, then at least about the very stimulating essays that comprise this book and which are humbling either in their explicit kindness to me or simply de facto by the willingness of the authors to contribute to this volume. I must start by recording some debts, first to John Coggon: I have benefitted hugely from conversations with and advice from John, both in writing this essay and the later commentaries. Most significantly, without his generosity of spirit and of time this book would never have appeared. His co-­ editors Tomi Kushner, Sarah Chan and Søren Holm, all close colleagues as well as friends, have been literally invaluable sources of support, encouragement and advice throughout. Finally I owe a great debt to Simona Giordano and Becki Bennett, the Editors of the series in which this book appears – not only for including this volume in their new series but for friendship, support and a good deal of tolerance over many years. All of these colleagues, save Tomi, have at some time been with me at Manchester University where I have been teaching since 1979. Manchester is a special place and it has been very good to me. Tomi has a special place in my esteem being both the



John Harris 17

sans pareil of Journal Editors, and pretty much the same as a person. Some others of my wonderful Manchester colleagues, Margot Brazier, Harry Lesser, Simon Woods and Andreas Hasman, also appear in these pages. A big ‘thank you’ from me goes to all the contributors and editors for being willing to give their time and considerable prestige to this enterprise. But now I return to origins, and particularly to … Thought and memory Thought and memory began sometime in 1957 when I was twelve years old. That is not to say I have no memories before that time – indeed I have almost only happy memories before then – but because I had not yet started to think, their significance eluded me. In my case, the precipitating event was unfortunately not ‘a spoonful of tea in which I had soaked a morsel of cake’1 but the death of my father. Until that day I had not a thought in my head; dreams maybe, plans certainly, hopes and fears but not thoughts. On my father’s death, suddenly money was short. I was moved from a prep-school to the local grammar school despite having failed the grammar school entrance exam (the infamous ‘11-Plus’) twice. This was my formidable mother; no-one said ‘no’ to her. When my mother died a year later my life had already changed irrevocably – I was losing the home in Cheltenham in which almost all my memories had been formed and in which I grew up. We, my sister and I, were still there but on our way to London and a new life, and my mother’s passing (an odd phrase since she was going nowhere – but a phrase I like) completed my transition to adulthood without any intervening adolescence. It also left me marooned and bereft. I changed – or rather was moved between – schools and towns many times and by the time I was ejected from school with only minimal qualifications some five years later I had myself changed more than I have since. I had become involved in The Campaign for Nuclear Disarmament (CND), been on a number of Aldermarston marches, and had started thinking about the ethics and legitimacy of direct action and violent d ­ emonstrations – subjects that were to appear in my D.Phil thesis a decade later. On leaving school in 1962 I went to Montreal, following my older sister who had emigrated there. I enrolled in high school for the Fall semester with the hope of finally achieving entrance requirements for university. It was not to last; I had outgrown school as it then was. The Cuban missile crisis erupted that October. My class teacher in Montreal insisted ‘my country right or wrong’, which prompted reflection on liberty and democracy, and indeed on idiocy. I bunked off school to protest outside the U.S. Consulate in downtown Montreal. I expected an Aldermarston sized turnout, with tens of thousands protesting; but the streets were deserted. I was a lone demonstrator marching, rather pathetically up and down, with a poster improvised from a cardboard shirt stiffener which said ‘no war over Cuba’ and wearing

18

Introductions

my CND badge (also improvised from cardboard – I couldn’t find the real one! And for some reason the badge was important to me). I demanded the opportunity to make my protest in person. Eventually the consul (or more probably a more lowly official) invited me in to hear me out. I made my protest explaining that since U.S. missiles were in Turkey they could hardly object to Soviet missiles in Cuba and the brinkmanship would probably (in my view) trigger a nuclear exchange and World War III. We agreed to differ. When I emerged from the consulate the street scene had changed. The road was suddenly lined with police, but I was still a lone protestor. Eventually a police officer came over and told me that they expected thousands of students from McGill at any moment who all supported J.F.K. and the idea of war and I should ‘beat it’ since they could not promise to protect me. I thought we’d all be dead by the next day anyway so I continued my lonely march up and down. Eventually thousands of ‘students’ did appear chanting for J.F.K. to give those commies a bloody nose. I stayed, the police did protect me, though it didn’t take much – I was obviously a joke. Eventually the ‘students’ all left and then all but one or two of the policemen and I called it a day and I went home to prepare for doomsday. It never came but I withdrew from high school and started work at Canadian Pratt and Whitney, operating a blue-print machine for aircraft engines. I was laid off after a few months and used the money saved to buy a $99 dollar ticket which bought 99 days on the Greyhound buses round America. ‘I went everywhere man!’ Back in Montreal I got a job selling ladies’ shoes in a big department store, Eatons of Canada. I learnt to appreciate a good shoe and a fine ankle and to speak French Canadian (not to be confused with French). I saved enough to return to England that August. I was going to become a lawyer, the only profession that was then open to someone who had failed to graduate from high school and possessed no qualifications that would gain university entry. August 1963 found me back and in London, fresh off the boat from Montreal with all my worldly possessions in two large suitcases. In 1963, seven days on a Cunard liner (The Carmania) was the same price as a flight! I checked into Holland Park Youth Hostel on Friday, found a bedsit on Saturday and reported for work in a lawyer’s office on Monday – as an articled clerk (you could do that in those days with no qualifications and with luck I would become a solicitor after five years.) I stuck it for three years but hated it. I spent my spare time trying to educate myself. I would lock myself in the office strong room for hours and read novels; when I left there were piles of untouched files under my desk. Almost every lunch hour I went to an art gallery and tried to teach myself about painting. My office was in the West End of London and was easy walking distance from the British Museum, The National Gallery, Sir John Soane’s Museum, The Wallace Collection and many others … and they were all free! Almost every evening I went to the theatre and stood ‘in the Gods’ for a shilling or two. I was literally one of ‘les enfants du paradis’.2 It was a wonderful time to be



John Harris 19

in London – it was the sixties. The new National Theatre had just launched at The Old Vic, soon followed by The Royal Shakespeare Company at the Aldwych. I went to everything, including more demonstrations. In 1965 I had finally decided the law was not for me. I wrote to every Professor of English Literature in the U.K. saying I had no qualifications but had been studying art and literature and would they please take me on as a student. I remember promising to work hard. Most said ‘no’, some said ‘apply and we’ll see’. I applied to the six universities that had sent the least depressing replies. Five turned me down flat and one offered me an interview. That one was The University of Kent, which had just opened. I had applied to do English with Philosophy. I chose philosophy because Bertrand Russell had inspired me by his leadership in CND and then in the formation of the Committee of 100. I had heard him speak in Trafalgar Square and at other places and on the strength of that I had read his pamphlet Has Man a Future? and his History of Western Philosophy. As luck would have it, the professor of Philosophy at Kent, Patrick Nowell-Smith, interviewed me. He took a chance and offered me a place, and my formal education began. I have had an education marked by being admitted to places I had no right to be. I went to grammar school despite having twice failed the entrance examination and to university having never taken entrance qualifications. Equal opportunities legislation would today certainly have put a stop to any such injustice. Kent proved a happy accident. It had been the last chance saloon so to speak, my only chance of a university education, but in the event it proved worthy of having been a first choice. I had been ejected from school because, in my headmaster’s words, I was ‘too stupid to be allowed to waste any more of the school’s time’. Without those extra two years at school and the confidence that ‘graduating’ with ‘Advanced Level’ (A-levels as they were called) might have given me, I expected to struggle at university and perhaps fail; but it was a breeze, not least because the philosophy tutors in particular made it an intellectual adventure and as a result, to my astonishment, I found I was doing ok. Why am I telling you all this? I wanted to situate the development of my ideas, which this volume so generously takes as its point of departure, in some of the events that have shaped them. When my father died I became an atheist overnight. It seemed obvious that either God was wicked or dead, or possibly both.3 With my mother’s death a year later a world that had seemed stable, secure and blessedly predictable had become uncertain and very hard work. Although initially I was living, first with an uncle in London and then with my sister in Birmingham, I felt alone and responsible only for and to myself. I wanted to understand this far from brave, new world, if for no better reason than self-protection; and self-awareness was part of that self-protection. I had become aware

20

Introductions

of threats previously unnoticed, at least by me; nuclear weapons, poverty, illness and premature death and also indifference. Prejudice, in the form of anti-Semitism, I had already experienced at first hand. All of these ‘threats’ engaged both my prudential concern and my blossoming intellectual curiosity. How could they be resisted or mitigated, for myself and for others? Violence and responsibility In 1961, the year I had heard Bertrand Russell speak in Trafalgar Square, Adolf Eichmann went on trial in Jerusalem. I followed the trial, mesmerised by the drama of his capture in Argentina by Mossad and by the facts as they emerged. Up until then, despite being a Jew, I knew little of the holocaust. It increased my consciousness of my Jewish origins and of the paradoxes of being a Jewish atheist. My initial reaction to Judaism following my father’s death was – ‘no God no religion’ end of story. But I soon discovered there were two powerful groups that would not let me cease to be Jewish. The first were the anti-Semites who wouldn’t let me ‘pass’, and the second the Jews who wouldn’t let me go! Being Jewish is also, as I discovered, partially cultural and tribal (much like football, but funnier). Sometime much later, probably in 1965, I read Hannah Arendt’s book of her New Yorker articles covering the trial. In her Eichmann in Jerusalem Arendt says in the epilogue, imagining answering Eichmann’s denial that he ever hated Jews and had never any inclination to kill anybody: Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same.4

Like Arendt, I had been struck by what she memorably called, in the last line of her book, ‘the banality of evil’5 but more by the disconnect between intention and responsibility. This disconnect became later a preoccupation of my research in Oxford between 1969 and 1974 which culminated in my D.Phil (1976) and then in my first book Violence and Responsibility in 1980.6 It took me a long time to have the courage to turn my thesis into a book, a mistake that I vowed not to repeat, and I have been a compulsive publisher ever since. My view, distinct from Arendt’s, was and remains that it is not that obedience and support are the same, rather that there is a difference between judging people and judging actions. This is a view that I think Jonathan Glover (another big influence on my thinking) also shares and which, in the formulation I now use, I may well owe, like so much, to him. If we are interested in a person and his or her moral character, then what they want, or intend, will matter to us. These things matter because they tell us something about the person whose desires or objectives interest us. But if we are inter-



John Harris 21

ested in what happens, in whether people in fact suffer or die or not, then we are interested in actions and their consequences. The motives and intentions of agents are interesting in so far as we are interested in the people who have them and in so far as they are the reasons for exercises of the will. But how the will is exercised, not why it is, is what changes the world. The distinction I am trying to make here is well articulated, as so often, by William Shakespeare. Here is his use of it in Julius Caesar. Caesar is responding to Decius Brutus who has come to escort him to the Senate and to his murder. Caesar tells him to tell the senate he will not come today … CAESAR Decius, go tell them Caesar will not come. DECIUS Most mighty Caesar, let me know some cause, Lest I be laughed at when I tell them so. CAESAR The cause is in my will: I will not come; That is enough to satisfy the Senate. But for your private satisfaction, Because I love you, I will let you know: Calpurnia here, my wife, stays me at home.7

Shakespeare has Caesar draw a distinction between reasons and causes. The reason for the exercise of the will is his wife’s fears and his indulgence of them. The cause is that as a result he will not go, he chooses not to go.8 What ultimately matters if we are interested in states of affairs, states of the world … in short in consequences, is that Caesar is or is not assassinated, that tyranny is pre-empted (albeit briefly in Caesar’s case) and that Rome is plunged into a civil war that ultimately results in a new tyranny, the empire, which lasts for hundreds of years. What sways Caesar, first one way then another, is interesting for the light it sheds on Caesar’s personality, susceptible to indulgence and to flattery in equal measure. While at Kent I continued trying to do as much of everything as I could, like so many university students but, perhaps because I had been made to think I didn’t deserve to be there, I may have overcompensated! I took up squash, which was later to prove an important part of my life, I edited ‘Incant’ the student newspaper and decided to become a journalist. I was also, briefly,9 President of the Students’ Union. In my final year my philosophy tutors, particularly Anne Seller and Colin Radford, persuaded me I was good enough to do graduate work at Oxford and that I should apply. This had simply not occurred to me until then … but I had nothing better to do, so I thought I might postpone my journalistic career. Balliol and eventually the sub-faculty of Philosophy accepted me and, because I obtained a Major State Studentship which paid all my fees and provided enough to live on, I could afford to follow my education where it led. It is worth an aside here to mention that my entire education from the age of twelve was effectively paid for by the state. My life as an autodidact in London was possible because art galleries and libraries were entirely free and much of the theatre was subsidised. My fees, undergraduate and

22

Introductions

­ ost-graduate, were paid with grants. I could never have afforded it otherp wise. Someone in my predicament today (or at any time post Mrs Thatcher) would not have had a chance to have had the education I have had and the career it opened up for me. I am conscious of the great good fortune I have enjoyed and of the debt it imposes. My arrival at Oxford in September 1969 had some highs and lows. Balliol gave me a room in Holywell Manor, then the only co-educational residence in Oxford and there I met some life-long friends. The philosophy graduate students were all interviewed individually by the philosophy professors. Freddie Ayer interviewed me and seemed most interested in what class of degree I had obtained. When I said ‘a 2.1’ his reply ‘Oh dear! … Well never mind!’ was not encouraging, particularly since one of the other professors present was famous for having also obtained a second class degree. I wonder if he ever said that to Peter Strawson? Three mentors in Oxford have had a permanent influence on me. My first tutor at Balliol, Tony Kenny, was (and is) frighteningly clever and I learnt much from him. But one encounter in particular taught me a lesson of lifelong benefit, and I cannot resist sharing it with readers of this essay. He had lent me a typescript (no computers in those days) and when I returned it at my next tutorial, I asked him if it was going to be published so that I could reference it properly. He replied ‘I haven’t decided yet’. I realised at that moment that there were people for whom academic publication was not passive, something that happened to them if they were lucky (or very good), but something active, something they did if they chose. I resolved then and there that I would become such an academic. When at the end of my first year I decided to change degree programmes and had to find a supervisor for my proposed doctoral thesis there was no contest. Ronnie Dworkin had just arrived from New York as Professor of Jurisprudence in succession to Herbert Hart. I had been to his inaugural lecture. He was a breath of fresh air and fresh ideas and I knew he was something special. I made an appointment and asked if he would supervise my thesis, which I had planned to be on the ethics of violence as an instrument of political and social change. He warned me that he wouldn’t be a very good supervisor, but took me on anyway. He was right; he might have been a disaster. He never advised me on appropriate reading, on structure, on topics I needed to tackle, he never read a whole draft of the thesis, never told me it was ready to submit and he often forced me to travel from Oxford to London where he lived, for supervision. In all other respects however he was wonderful! Indeed many of these features of our relationship were in my case entirely satisfactory, despite their being contrary to most currently accepted standards. I was delighted to go to his house in Chester Row; not least because he was often late, so I would have the pleasure of being entertained to coffee and conversation by his wife Betsy. I got to know her well and she was utterly charming, wonderful company and would have made a good second supervisor if they had had them in those days.



John Harris 23

It was Ronnie also who bullied or shamed the Oxford Faculty of Literae Humaniores into accepting my doctoral topic. They had initially rejected it as totally unsuitable for a Philosophy D.Phil, far too relevant! Ronnie became a strong mentor and support to me all his life. He gave me one priceless gift. He would never discuss a chapter or a paper as a whole and comment on its quality or fitness for purpose. He would simply take an idea or an argument of mine that interested him, often one with which he disagreed, and we would argue it out for an hour or sometimes two. This was stimulating and immensely useful, not least because I thought his was the smartest mind in Oxford and I felt if I could at least partially hold my own for an hour with him, I could do that with (or against) anyone. This, for really the first time in my life, gave me intellectual confidence. I very much miss his invisible hand, although I still feel its effects. My third mentor is Jonathan Glover. He never taught me but we became friends while I was at Oxford, a friendship which has endured, from which I have learnt and which I value immensely. He sets an example of intellectual generosity, honesty and integrity which I try hard to emulate, but which I can never equal. The survival lottery While working on my D.Phil I wrote a long paper on our responsibility for the harm we fail to prevent, which I called ‘The Marxist Conception of Violence’, and sent it to Philosophy and Public Affairs, which was then a new journal. I received an enthusiastic letter back from Marshall Cohen, the editor. He thought it too long but encouraged me to re-submit. I re-read the piece and found I could remove a complete section without loss. I resubmitted it and it was published under the same title. The piece I removed I submitted to Philosophy under what had been its section heading in the larger paper. It’s called ‘The Survival Lottery’.10 These two papers contain not only the heart of my book Violence and Responsibility, but a number of themes on which I continue to work today. I won’t try to summarise ‘The Survival Lottery’ here. It contains an argument which uses organ transplants, and discusses a dilemma that others have thought of as dimensions of the so called ‘trolley problem’.11 It also deploys the lottery as a device for choosing without discriminating, in short a device for ensuring that we treat people as equals,12 a device which has informed my work on resource allocation and the infamous QALY.13 ‘The Survival Lottery’ is a paper that has been very kind to me and one without which this book would probably not exist. This rather theoretical and speculative piece is incidentally responsible for my coming to be ‘a bioethicist’ as well as a philosopher. My first job when my studentship ran out in 1974 was teaching Aesthetics to art students and art teachers at Birmingham Polytechnic. I took the job because I needed work, Birmingham was within striking distance of Oxford where I

24

Introductions

was settled, and I could go on playing squash for Oxfordshire while earning a living. (Yes, my squash had improved rather more rapidly than my philosophy!) While teaching aesthetics I began to get invitations from medical schools and medical societies all of which said roughly: ‘We hear you have an interest in organ transplants; would you like to come and speak to our group?’ I responded that my interest in transplants was limited to making a theoretical point rather than an interest in the ethical and scientific challenges of transplantation; but I asked them to tell me what their most pressing ethical issues were and what they would like me to speak about. Their problems were fascinating; I went all round the country speaking and gradually found myself part of what is now called bioethics. And I also developed my interest in transplantation and developed two radical proposals for increasing the supply of organs.14 My long relationship with The Journal of Medical Ethics (JME) also began with a happy accident soon after I had moved to the University of Manchester in 1979. My first self-conscious paper in medical ethics was a reply to a paper by the surgeon John Lorber on the ‘selective non-treatment of handicapped newborns’, a subject which remains central to contemporary debate,15 which had been published in the Journal of the Royal College of Physicians of London. I received a very ‘sniffy’ letter back from the then editor saying something like ‘your paper seems to be a paper within medical ethics … there is a journal for that sort of thing – the JME’. The editor did not seem to think that the paper to which I was replying should also never have been published in his journal. I sent my paper to the JME and received a warm reply from Raanan Gillon the Editor accepting it and we have been close friends ever since. Eventually, I myself became Editor of the JME (with Søren Holm) between 2004 and 2011. I also received, some years ago, a letter from a subsequent editor of the Journal of the Royal College of Physicians asking me to let them have a paper if I had something suitable, and asking why I had never submitted one? Moral enhancement Another Arendtian theme which has preoccupied me much in recent writing16 is the role of rationality, or in Arendtian terms, of thought, in morality. This topic appears in a number of the chapters in this volume, notably those of Jonathan Glover, Richard Ashcroft, Mike Parker and Micaela Ghisleni, Margot Brazier and indeed others. It has also resulted in a long debate that seems to be ongoing between myself and Julian Savulescu and Ingmar Perrson, and also with David De Grazia, Tom Douglas and others on the nature and meaning of moral enhancement. The nub of this debate is a difference over the extent to which molecular mechanisms for enhancing so-called ‘pro-sociality’ or automatic empathy might constitute moral enhancement. A number of writers including those just mentioned, but also including neuroscientists,17 have suggested that molecules and neu-



John Harris 25

rotransmitters such as serotonin and oxytocin might be shortcuts to moral behaviour because they increase the probability of empathetic reactions to the distress of those we encounter directly. Such reactions might be chemically stimulated without the need for thought or reflection. I have argued and continue to believe that a moral judgement or indeed any behaviour that might properly be called moral needs to have considered and indeed answered the question ‘yes but would behaviour like this or opinions such as these be the right thing to do or to believe ‘all things considered’’. It also relates to the distinction between reasons and causes so eloquently drawn by Shakespeare’s Julius Caesar. I believe we should all be suspicious of allowing molecular causes of which we may be unaware to supplant or pre-empt our well thought out moral reasons for action – causes which I argue may lead to worse rather than better moral consequences. In a paper published in the journal Social Research18 in 1971 Hannah Arendt returns to themes explored in Eichmann in Jerusalem. Her lecture, which is on thinking and morality, opens with these words: To talk about thinking seems to me so presumptuous that I feel I owe you a justification. Some years ago, reporting the trial of Eichmann in Jerusalem, I spoke of ‘the banality of evil’ and meant with this no theory or doctrine but something quite factual, the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology or ideological conviction in the doer, whose only personal distinction was perhaps extraordinary shallowness … the only specific characteristic one could detect … was something entirely negative: it was not stupidity but a curious, quite authentic inability to think.19

Arendt goes on to ask: Could the activity of thinking as such, the habit of examining and reflecting upon whatever happens to come to pass regardless of specific content and quite independent of result, could this activity be of such a nature that it ‘conditions’ men against evil-doing? (The very word con-science, at any rate, points in this direction insofar as it means ‘to know with and by myself’ a kind of knowledge that is actualised in every thinking process.)20

And later Arendt notes in passing that: ‘Thinking always deals with objects that are absent, removed from direct sense perception’.21 While I doubt that thinking could ever ‘condition men against evil doing’ or how such a hypothesis could be tested, Arendt’s noticing that thinking always deals with objects that are absent could be crucially morally relevant. As I have recently argued in various places22 the use of molecules like serotonin and oxytocin, as purported moral enhancers, is designed to by-pass thought and it is this factor which makes this function for these molecules unacceptable and dangerously inimical to anything that could be morality properly so-called. I say ‘dangerous’ because while these so-called molecular moral enhancers operate to make us more responsive to stimuli that are present

26

Introductions

to sense perception, the more important moral priorities ‘all things considered’ are often out of sight and will also be out of mind to those not tuned to attempt the consideration of all things. Serotonin may make us more likely to give to a beggar we see on the street or to give to a door to door collector but more important calls for assistance which require imagination or consideration for us to notice – from the needy overseas or to support scientific research or oppose complex taxation which disproportionately disadvantages the poor – may go unanswered. What is bioethics for? I hope my answer to this question will be obvious from my work. As I said in the Introduction to my most recent book:23 If there is a theme which unites all my philosophical work it is an exploration of the responsibility shared by all moral agents, to make the world a better place. Karl Marx24 is noted for the idea that the purpose of philosophy cannot simply be to understand the world, but must also be to change it. This thought however is not original to Marx, it is implicit in the writings of many philosophers, Plato certainly wanted to change the world for the better and The Republic is devoted to systematic ways to achieve a better society. Locke, Rousseau and Bentham would all have been equally at home with the idea. Indeed, as Bertrand Russell said, talking of Jeremy Bentham: ‘There can be no doubt that nine-tenths of the people living in England in the latter part of the last century were happier than they would have been if he had never lived. So shallow was his philosophy that he would have regarded this as a vindication of his activities.’25 Russell’s irony will not be lost on even the most literal of readers. It is a sad comment on the philosophy of the twentieth century that in the four score years since Russell’s essay was written, concern with the real world, no less than with attempts to make it better, have continued to be seen as evidence of lack of philosophical depth by the majority of professional philosophers and Russell’s own attempts to make the world better are not, even now, ranked by most philosophers as among his significant philosophical contributions.

Of course I include the making of better people in the idea of what it takes to make the world a better place and, following the mission statement of the Wellcome Trust, I would include animal health as a significant objective alongside human health. Bioethics then is literally the ethics of our interaction with the biosphere and covers everything from individual ethical dilemmas ‘should I eat meat?’, ‘would I be wrong to terminate my pregnancy?’ to questions concerning the ethics of the improvement of global health and global justice both between generations and within them, in enhancing the lives of groups and individuals, rich and poor, in sickness or in health, and in respect of all conceivable powers and capacities, including intelligence, physical, artistic and sporting prowess, and not excluding changes so radical



John Harris 27

they might lead to the further evolution of our species up to and beyond a point at which we would judge a new successor species to have been created. Some, calling themselves ‘post-humanists’, cast themselves as prophets for the coming or second coming of such evolution of our species. I do not care for post-humanity for its own sake, but simply for the good that it might achieve for all. When I started working self-consciously in medical ethics around 1978 the discipline was parochial, conservative and full of doctors and priests of various denominations. I generalise of course, and I take no responsibility for its transformation into bioethics, that change was already in train. Indeed the ethics centre I co-founded in Manchester in 1986, The Centre for Social Ethics and Policy (CSEP) consisted of one philosopher (me) one doctor (Mary Lobjoit), one theologian and priest (Tony Dyson) and one lawyer (Margot Brazier). These wonderful colleagues also changed my life and many of my assumptions. CSEP flourished and the many students and colleagues that have formed CSEP from 1986 to date have made my life in bioethics a constant pleasure and adventure. My particular interest, perhaps speciality, has been considering the impact of new and probable technologies and of policies concerning them and in attempting to judge, as objectively as I can, the quality of the reasons for and against their introduction. In particular I have found myself criticising the plethora of bad arguments that are always advanced as obstacles to change. This is not, I believe, because I am a natural radical, but rather because I am a natural sceptic. I have found that all too many people are like the mother who said to her daughter ‘go and see what your little brother is doing and tell him to stop’. When I go and see what the scientists are doing, which I have made it part of my business to do, I much more often find that they are doing a good job and that we should remove rather than increase obstacles in the way of their progress. In 2008 the new Institute for Science, Ethics and Innovation (iSEI) was founded in Manchester, chaired by Sir John Sulston and directed by myself and Sarah Chan. iSEI was established to work at the interface between science, ethics and innovation, not as a way of providing a defence – an apologia – for science and technology, but as a vehicle for examining the role and the moral responsibilities of science, technology and innovation in society both locally and globally. On 12 May 2008 John Sulston and I gave a Public Lecture at The Sheldonian Theatre in Oxford entitled ‘What is Science For?’ In that lecture we advanced two fairly commonplace propositions: that in the future there would be no more human beings and no more planet earth. Why will there be no more human beings? Either we will have been wiped out by our own foolishness or by brute forces of nature or, I hope, we will have further evolved by a process more rational and much quicker than Darwinian evolution, a process I described in my book Enhancing Evolution. Even more certain is that there will be no more Planet Earth. Our sun will die and with

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Introductions

it all possibility of life on this planet. By the time this happens, we may hope that our better evolved successors will have developed the science and the technology needed to survive and to enable us to find and colonise another planet or perhaps even to build another planet; and in the meanwhile to cope better with the problems presented by living on this planet. Either way, not only are these not things we should worry about, they are things we need actively to plan for if we or our successors are to survive into the far future. People often believe that there is some moral imperative to be ultra-­ cautious in permitting new research and in introducing new technology. This approach is commonly understood as respecting the precautionary principle. However, it is not unusual to find this so-called ‘precautionary principle’ being invoked in circumstances in which it is far from clear in which direction (if any) caution lies. We cannot know which way lies caution without having some rational basis for establishing the scale of likely dangers that will result from pursuing particular programmes of research and innovation and comparing those with the ongoing costs of failing to pursue the research to a successful conclusion. If the so-called precautionary principle had held sway in the Garden of Eden it is doubtful if any of us would be here now. For there was then simply no basis for forecasting the success or failure of our species. The challenge is: how to accept our responsibility to make the world a better place and to ensure that life on earth flourishes? As Giuseppe di Lampedusa had Tancredi remark in The Leopard, ‘Se vogliamo che tutto rimanga come è, bisogna che tutto cambi’ (‘If we want things to stay as they are, things will have to change’).26 How, not whether, they should change is the challenge for all of us interested in bioethics and science ethics. The future of bioethics is the future of humanity. Notes   1 Marcel Proust, Remembrance of Things Past, Volume I., Part One, trans. C.K. Scott Moncrieff (London: Chatto and Windus, 1973), p. 58.   2 A film I also first saw at that time. Les Enfants du Paradis, released as Children of Paradise in North America, is a 1945 French film directed by Marcel Carné.  3 I have talked about this in my ‘Wicked or Dead? Reflections on the Moral Character and Existential Status of God’, in R. Blackford and U. Schüklenk (eds.) Voices of Disbelief (London: Wiley Blackwell 2009), 33–41.   4 H. Arendt, Eichmann in Jerusalem (London: Penguin Books, 2006). p. 279.  5 Ibid., p. 252.  6 J. Harris, Violence and Responsibility (London: Routledge and Kegan Paul, 1980). See Chapters 7 and 8.   7 William Shakespeare, Julius Caesar, eds. R. Proudfoot, A. Thompson and D.S. Kasten, The Arden Shakespeare (Walton-On-Thames: Thomas Nelson and Sons Ltd, 1998), Act 2 Scene 2 lines 68–75.   8 In the event of course Caesar is persuaded to change his mind, his will, and he does in fact go. I leave aside the issue of additional material causes for action.   9 That’s another story.



John Harris 29

10 J. Harris: ‘The Survival Lottery’, Philosophy 50 (1975), 81–8; ‘The Marxist Conception of Violence’, Philosophy & Public Affairs 3 (1974), 192–221. 11 P. Foot, ‘The Problem of Abortion and the Doctrine of the Double Effect’, in Virtues and Vices (Oxford: Basil Blackwell, 1978). Originally appeared in the Oxford Review, 5 (1967). J.J. Thomson: ‘Killing, Letting Die, and the Trolley Problem’, The Monist 59 (1976), 204–17; ‘The Trolley Problem’, Yale Law Journal 94 (1985), 1395–415. F. Kamm, ‘Harming Some to Save Others’, Philosophical Studies 57 (1989), 227–60. 12 Others since have made more detailed studies of lotteries as an instrument of justice. See: B. Goodwin, Justice By Lottery (Hemel Hempstead: Harvester, Wheatsheaf, 1992); N. Duxbury, Random Justice (Oxford: University Press, 1999). J. Broome: ‘Selecting People Randomly’, Ethics, 95, 38–55; ‘Uncertainty and Fairness’, The Economic Journal 94 (1984), 624–32; ‘Fairness’, Proceedings of the Aristotelian Society, 91 (1990) 87–101. 13 J. Harris: ‘Rationing Life’, The Health and Social Service Journal, June (1986); ‘QALYfying The Value of Life’, Journal of Medical Ethics, 13:3 (1987), 117–23. [Reprinted in R.S. Downie (ed.) Medical Ethics (Dartmouth: Aldershot, 1996).] ‘Life: Quality, Value and Justice’, Health Policy 10 (1988), 259–66; ‘The Ethics of Resource Allocation’, Journal of Epidemiology and Community Health, 44:3 (1990), 187–90; ‘Unprincipled QALYs’, Journal of Medical Ethics 17:4 (1991), 185–8; ‘Is Gene Therapy a Form of Eugenics?’, Bioethics 7:2/3 (1993), 178–87 [Reprinted in R.S. Downie (ed.) Medical Ethics (Dartmouth: Aldershot, 1996)]; ‘Does Justice Require that we be Ageist?’, Bioethics 8:1 (1994), 74–84; ‘Double Jeopardy and the Veil of Ignorance – A Reply’, The Journal of Medical Ethics 21:3 (1995), 151–7; ‘Would Aristotle have Played Russian Roulette?’, Journal of Medical Ethics, 22:4 (1996), 209–15; ‘Could We Hold People Responsible for Their Own Adverse Health?’, The Journal of Contemporary Health Law and Policy 1 (1996), 100–6; ‘What is the Good of Health Care?’, Bioethics 10:4 (1996), 269–91; ‘What the Principal Objective of the NHS should really be’, The British Medical Journal 314 (1997), 669–72 [Re-printed in B. New (ed.) Rationing: Talk and Action in Health Care (London: BMJ Publishing Group, 1997) 100–6]; ‘Justice and Equal Opportunities in Health Care’, Bioethics 13:5 (1999), 392–405; ‘The Age Indifference Principle and Equality’, Cambridge Quarterly of Healthcare Ethics (2005) 1493–99. M. Brazier and J. Harris, ‘Public Health and Private Lives’, The Medical Law Review 4 (1996), 171–92. 14 C.A. Erin and J. Harris, ‘A Monopsonistic Market’, in I. Robinson (ed.) The Social Consequences of Life & Death Under High Technology Medicine (Manchester: Manchester University Press, 1994), 134–57. 15 J. Harris, ‘Ethical Problems in the Management of Some Severely Handicapped Children’, Journal of Medical Ethics 7:3 (September 1981), 117–24. 16 Policy Reports: The Royal Society [J. Harris, Co-Author] ‘Neuroscience, Society and Policy’, Report of The Royal Society, Brainwaves Module 1 (2011). ISBN 978-0-85403-879–4 [particularly Chapter 33 – Neuroethics, pp. 77–86]; Academy of Medical Sciences [J. Harris, Co-Author] ‘Animals Containing Human Material’, A Report of the Academy of Medical Sciences (2011). ISBN 978-1-903401-32-3; The Royal Society [J. Harris, Co-Author] ‘Neuroscience and the Criminal Law’, Report of The Royal Society, Brainwaves Module 4, RS Policy document 05/11 (2011). ISBN: 978-0-85403-932-6. Papers and Chapters: J. Harris, ‘Taking Liberties with Free Fall’, Journal of Medical Ethics (2014),

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371–4; ‘Moral Progress and Moral Enhancement’, Bioethics 27:5 (2012), 285–90; ‘What it’s Like to be Good’, Cambridge Quarterly of Healthcare Ethics 21:3 (2012), 293–305;‘Ethics is for Bad Guys’: Putting the Moral into Moral Enhancement’, Bioethics 27:5 (2012), 169–73; ‘Moral Enhancement and Freedom’, Bioethics 25:2 (2011), 102–11; ‘Taking the ‘Human’ Out of Human Rights’, Cambridge Quarterly of Healthcare Ethics 20:1 (2010), 9–20; ‘Chemical Cognitive Enhancement: Is it Unfair, Unjust, Discriminatory, or Cheating for Healthy Adults to Use Smart Drugs?’, in J. Illes and B.J. Sahakian (eds.) The Oxford Handbook of Neuroethics (Oxford: Oxford University Press, 2010), 265–72; S. Chan and J. Harris, ‘Moral Enhancement and Prosocial Behaviour’, Journal of Medical Ethics 37:3 (2011), 130–1; N. Hyder and J. Harris, ‘The Criminal Law and Enhancement: None of the Law’s Business?’, in A. Alghrani, R. Bennett and S. Ost (eds.) Bioethics, Medicine and the Criminal Law (Cambridge: Cambridge University Press, 2013), 175–89. 17 M.J. Crockett, L. Clark, M. Hauser, et al., ‘Serotonin Selectively Influences Moral Judgment and Behavior Through Effects on Harm Aversion’, Proceedings of the National Academy of Sciences USA 107:17 (2010), 433–8. See also J. Harris and S. Chan, ‘Moral Behaviour is Not What it Seems’, Proceedings of the National Academy of Sciences USA Early Edition 2010. Available at www. pnas.org/cgi/doi/10.1073/pnas.1015001107 (accessed June 2014); Chan and Harris, ‘Moral Enhancement and Prosocial Behaviour’. 18 H. Arendt, ‘Thinking and Moral Considerations: A Lecture’, Social Research 38:3 (1971), 416–46. 19 Ibid. 417. 20 Ibid. 418. Emphasis in original. 21 Ibid. 423. 22 Erin and Harris, ‘A Monopsonistic Market’, 134–57. 23 J. Harris, Enhancing Evolution (Princeton: Princeton University Press, 2007). 24 Karl Marx, Theses on Feuerbach No XI, in L.S. Fuer (ed.) Marx and Engels (London: Collins, Fontana, 1972). What Marx actually said was: ‘The philosophers have only interpreted the world, in various ways; the point however, is to change it’. 25 Bertrand Russell, ‘The Harm That Good Men Do’, in Bertrand Russell Sceptical Essays (London and New York: Routledge 2005), 91. 26 Giuseppe Tomasi di Lampedusa, The Leopard (London: Vantage, Random House, 2005), 27. [Giuseppe Tomasi di Lampedusa Il Gattopardo Universale Economica Feltrinelli. Ottantaseiesima edizione agosto 2005. Edizione conforme al manioscritto del 1957.]

Part II

Grounding moral arguments

3

On moral nose Jonathan Glover

John Harris on olfactory moral philosophy In several of his writings, including his On Cloning, John Harris argues against basing policies on what George Orwell called ‘moral nose’. He says that Orwell used this phrase ‘as if one could simply sniff a situation and detect wickedness’.1 He gives examples of this approach in debate on bioethical issues. One is Mary Warnock’s claim that the existence of morality requires ‘some barriers which should not be passed’ and her thought that often these barriers are marked by ‘a sense of outrage’.2 Another is Leon Kass’s objection to cloning that ‘we intuit and feel, immediately and without argument, the violation of things that we rightly hold dear’.3 He has two objections to the ‘moral nose’ approach. It is harmful and it is intellectually weak. On the harm done by relying on moral nose, John Harris reminds us that some people have felt what they took to be moral disgust at the idea of equality for Jews, black people or women.4 ‘Where nasal reasoning and olfactory moral philosophy generate bad arguments and these are deployed in the cause of limitations on human rights and freedoms, this can itself constitute a grave attack on those freedoms.’5 On the intellectual weakness of the moral nose approach, Harris points out the problem of marking off when feelings of outrage are evidence of something morally disturbing and when they are just ‘bare prejudice or something even more shameful’.6 He says supporting evidence and argument are marks of a serious moral position. ‘[N]asal reasoning is notoriously unreliable, and olfactory moral philosophy, its theoretical “big brother” has done little to refine it or give it a respectable foundation.’7 The views of Mary Warnock and Leon Kass, together with John Harris’s comments on them, suggest that olfactory moral philosophy has two different strands worth separating. There is pure moral nose: we ‘simply sniff a situation and detect wickedness’, as in the objections to cloning that ‘we intuit and feel, immediately and without argument’.8 Then there is the idea, advocated by Stuart Hampshire and by Mary Warnock9 that some impassi-

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Grounding moral arguments

ble barriers are necessary for morality. The ideas of pure moral nose and of the impassible barrier could each be held without the other. (Although they are linked when unsupported outrage is made the test of what should be an impassible barrier.) Here I will mainly leave aside the question of impassible barriers and consider pure moral nose: the idea of intuiting right and wrong without argument. Prominent uses of moral nose in bioethics are in objections to human reproductive cloning and to stem cell research. I agree that the appeal to what is sometimes called the ‘yuk’ factor is intellectually weak. And, at least in the case of stem cell research, great harm is likely when science with such medical promise is blocked. On these central points, I am on John Harris’s side. But there are reasons for giving the role of intuitive responses in ethics a rather more positive emphasis than he perhaps allows. So this chapter is partly in support of his views and partly in qualification of them. I will start with the support and then go on to the qualifications. Prejudice and Lord Devlin’s moral nose The moral climate changes. Forty years ago there was what now seems a strange piece of olfactory moral philosophy. In 1965, the year John Harris was twenty, Lord Devlin published his book The Enforcement of Morals, in which he argued for the role of moral nose in both morality and lawmaking.10 He said, ‘I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached. Not everything is to be tolerated. No society can do without intolerance, indignation and disgust; they are the forces behind the moral law.’11 As an example, he took homosexuality. He was liberal enough to support the reform then proposed: the de-criminalisation of homosexual acts between consenting male adults in private. He thought society’s disapproval of homosexuality was not strong enough to outweigh the misery to those convicted. But everything depended on how strong was the response of the ordinary person’s moral nose. ‘There is, for example, a general abhorrence of homosexuality. We should ask ourselves in the first instance whether, looking at it calmly and dispassionately, we regard it as a vice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it.’12 On Devlin’s view, if society had judged the moral smell of homosexuality to be too strong, this ‘right to eradicate’ would have justified making gay men to continue to hide their sexuality, with public humiliation and imprisonment when they failed. Looking back, it is hard to see how any degree of moral smell emanating from otherwise harmless acts could possibly justify any ‘right’ to impose a law so intrusive and cruel. (At that time there were some – notably Professor Herbert Hart – who argued this case against Lord Devlin.13)



Jonathan Glover 35

To understand how Lord Devlin came to hold his view, it is worth looking at how gay sex smelt to his own moral nose. He called homosexuality ‘unnatural vice’.14 He included it in a list that started with bigamy and went on to incest and brothel-keeping. A man: does not as a rule lie with his daughter or sister because he thinks that an incestuous relationship can be a good one but because he finds it a way of satisfying his lust in the home. He does not keep a brothel so as to prove the value of promiscuity but so as to make money. There must be some homosexuals who believe theirs to be a good way of life but many more who would like to get free of it if only they could. Certainly no man in his senses can think that habitual drunkenness or drugging leads to any good at all. Such are the vices that the law seeks to control.15

Devlin also thought that some of his own attitudes were held by everyone else. ‘I agree with everyone who has written or spoken on the subject that homosexuality is usually a miserable way of life and that it is the duty of society, if it can, to save any youth from being led into it. I think that that duty has to be discharged although it may mean much suffering by incurable perverts who seem unable to resist the corruption of boys.’16 Devlin seems not to have wondered whether homosexuality might have been made ‘a miserable way of life’ by the fear and furtiveness resulting from its illegality, and by the waves of hostility and rejection emanating from the language of ‘un-natural vice’, ‘perverts’ and ‘corruption’. Stigmatising a condition as harmful can be a self-fulfilling claim. One’s moral nose, especially with the support of beliefs about the moral nose of others, may indeed be mainly prejudice. Lord Devlin’s case raises an issue about similar appeals, made now by some opponents of cloning or stem cell research, to the combination of moral nose and public opinion. It may be hard to explain why in forty years this approach will look more impressive or less prejudiced than Devlin’s does now. In defence of George Orwell’s moral nose ‘Moral nose’ is George Orwell’s phrase, used in 1940, when discussing Charles Dickens. He said: Dickens, of course, had the most childish views on politics, etc., but I think that because his moral sense was sound he would have been able to find his bearing in any political or economic milieu. So I think would most Victorians. The thing that frightens me about the modern intelligentsia is their inability to see that human society must be based on common decency, whatever the political and economic forms may be. [Sir Richard Acland] is apparently incapable of seeing that there is something wrong with the present Russian regime. Private property has been abolished, therefore (so he argues) everything must be more

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Grounding moral arguments

or less all right. This seems to me to indicate the lack of moral nose. Dickens, without the slightest understanding of socialism, etc., would have seen at a glance that there is something wrong with a regime that needs a pyramid of corpses every few years … All people who are morally sound have known since about 1931 that the Russian regime stinks.17

This phrase ‘common decency’ exemplifies one of Orwell’s weaknesses but also, in the context of the whole passage, one of his strengths. The weakness is an un-analysed moral populism. His contrast between common decency and ‘the modern intelligentsia’ reflects his hostility to leftwing intellectuals, stereotyped as bearded, sandal-wearing vegetarians. Just as the hostile stereotype may be substituted for serious discussion of their views, so the appeal to common decency may also allow laziness of thought. How do we decide which parts of a common outlook are ‘decent’ and which need challenging? But Orwell is also on to something important. The reaction of many to Stalin’s pyramids of corpses was indeed that the regime stank. It was an untheoretical reaction, but it was right. There were believing communists who argued that repugnance at the corpses should be over-ridden in the interests of supporting the progressive side in the historical struggle. This was essentially the argument that you can’t make an omelette without breaking eggs. It is now obvious that the sceptics were right not to let their intuitive response to the killings be anaesthetised by flimsy claims about the future utopia. Sometimes moral nose, or moral intuition, is a better guide than reasons based on some supposed theoretical knowledge. This point can be made without giving yet another flogging to the dead horse of communism. (Orwell wrote about contemporary rather than past barbarism.) On the day I am writing this, there are news reports about torture and other horrors in the American concentration camp at Guantanamo Bay. Beatings, sexual humiliation, isolation for months, hoodings, being kept naked, forced injections, deprivation of sleep and food, long periods of being in a bent position shackled to a ring in the floor are among the physical and psychological tortures. They are strikingly similar to those used, by forces under the same ultimate command, in the Abu Ghraib prison in Baghdad. On these events, I want largely to follow Orwell. There are people who think that this is part of a war on terrorism, that in Iraq a dictator has been removed, that democracy and free markets have been started up, and therefore everything must be more or less all right. This seems to me to indicate the lack of moral nose. Dickens would have seen at a glance that there must be something wrong with a regime that presides over Abu Ghraib and Guantanamo. There are arguments used to defend this resort to torture. Some of the victims may be terrorists. It is said that torture may force them to give information needed to prevent future terrorist attacks. Sometimes these claims



Jonathan Glover 37

are backed by appeals to psychological research about techniques of persuasion, or to secret intelligence about the terrorist threat, or to considerations of defence analysis or of geopolitical strategy. Most of us do not have access to secret intelligence. Most of us are ignorant of the latest psychological research, and we do not spend time thinking about defence analysis or geopolitical strategy. The suggestion is that we should be cautious about trusting our moral nose when the risks are so great and we are confronted by so much opposing expertise. Of course the prevention of some huge terrorist outrage is a high priority. There are familiar hypothetical scenarios in moral philosophy where the only possible way of getting information needed to stop a nuclear bomb going off in a city is to torture someone. Philosophers, like other people, divide on what would be right. Some want the prohibition on torture to be an absolutely impassible barrier, even at the cost of letting the nuclear attack take place. Others think that if there were really no other means and if it provided a very good chance of averting the attack, torturing might be justified as the lesser evil. (Only might be justified, for several reasons, including the horrors of the long-term consequences of the precedent of using torture as an instrument of policy.) Despite this possible case for torture being permissible in extreme situations, on Abu Ghraib and Guantanamo we should still trust our moral nose. One of the differences between abstract dilemmas in philosophy and the real world is that in the philosophy examples there is overwhelming reason to think that the only choice really is between torture and nuclear devastation. In constructing the scenario all doubts have been deliberately eliminated. In the real world things are not like this. The ‘torture to avoid terrorism’ scenario consists of claims worm-eaten with well-founded doubt. The psychological research is usually inconclusive. People may say anything, true or false, to stop being tortured. The defence analysts and geopolitical experts are in the tradition of those who planned the war in Vietnam. They are the descendents of Robert MacNamara, with the modern equivalent of his charts. And those who tell us about the secret intelligence are the same people who told us about Saddam Hussein’s weapons of mass destruction and who gave us the Iraq war. Moral nose tells us that torture, like Stalin’s corpses, is something that is either impossible or at least extraordinarily hard to justify. There is at least an enormous burden of proof on anyone attempting to justify it. F.H. Bradley once said that he had more confidence in the existence of the physical world than he had in any philosophical argument supposed to disprove it. Something similar applies to the moral prohibition on torture and the arguments (supplied by politicians, ‘defence analysts’ and members of the ‘intelligence community’) that are supposed to undermine it. Moral nose tells us that torture stinks. Nor is there much attractive in the smell of the intellectual deodorants that attempt to cover this up.

38

Grounding moral arguments Different uses of moral nose

So far the argument seems to point both ways. Lord Devlin’s case suggests we should not rely on moral nose because it may be prejudiced. But with torture our moral nose is more trustworthy than the arguments supposed to show it to be unreliable. Can these views be reconciled? One obvious point is that there is reason to suspect that the arguments for over-riding our revulsion against torture are not good ones. If the choice is between moral nose and bad arguments, moral nose has too easy a victory. But there is a more general point to make. Moral nose is not just one thing. Rather there are different varieties of it. And there are several different ways in which it might be used in ethics. Consider first two of its different uses. It can function as an excluder or as an early warning system. In bioethics, people often want to use moral nose as an excluder, as a sign that a morally impassible barrier has been reached. When Leon Kass tells us that we intuit, immediately and without argument, that cloning is a violation of things that we rightly hold dear, this is meant to convince us that cloning should be excluded from ethical acceptability. Some philosophers, even more strongly, use moral nose to exclude certain things from being considered. The classic statement of this is G.E.M. Anscombe’s comment that ‘if someone really thinks, in advance, that it is open to question whether such an action as procuring the judicial execution of the innocent should be quite excluded from consideration – I do not want to argue with him; he shows a corrupt mind’.18 Clearly the use of moral nose as an excluder, whether from acceptable action or even from being thought about, requires great confidence in one’s intuitive moral responses. But its use as an early warning system presumes less. If our first feeling about some proposed course of action is that it stinks, we do not have to take this as an excluder. Instead, we can take it as a warning. The action is something we should not do unless serious thought convinces us either that there is a morally over-riding justification or that our moral nose was mistaken. Seeing moral nose as an early warning system gives it a more modest but genuinely useful role in decisions. It also fits in with a plausible account of intuitive or emotional responses more generally in thinking and decision-making. In artificial intelligence there is the ‘frame problem’. If an intelligent machine is designed to perform a simple task such as fetching a package, and given access to any information it wants about alternative strategies, it may never start the job. Without any way of excluding irrelevant information or questions, it will have an indefinitely large number of preliminary calculations to carry out. After several years it may still be calculating that going out of the door will have no effect on the number of geese in Canada or on the price of vodka in Poland.19 The difficulty of designing a relevance detector for such a machine may suggest something about people. Perhaps,



Jonathan Glover 39

in us, emotional responses function as relevance prompts. There may be no general intellectual strategy for a relevance search. Instead, we may notice a lot of what is relevant by its ‘feel’. The work of Antonio Damasio has brought the cognitive role of emotional responses into prominence. He describes the case of ‘Elliott’ who had undergone surgery to remove a brain tumor. After the operation he seemed incapable of completing tasks to time. If the job was to classify some documents, he might spend the afternoon deliberating whether to classify them by date, relevance to a case, size of document, or by some other criterion. Elliott seems to be the frame problem come to life in a person. His neurological condition left him emotionally blank. He said his previous emotional responses had gone. Damasio links the emotional blankness with the inability to take decisions: ‘I began to think that the cold-bloodedness of Elliott’s reasoning prevented him from assigning different values to different options, and made his decision-making landscape hopelessly flat’.20 Perhaps in ethics too we need the prompting of emotional or intuitive first responses if we are to reach conclusions and take decisions. But, on the early warning model, these are first responses. There is nothing to suggest they are the final responses needed for the role of excluders. The thing about first responses is that they are open to criticism and discussion. Varieties of moral nose Moral nose is a matter of an intuitive, un-argued moral response to something. It is important that intuitive responses are not all the same. Some should be taken more seriously than others. Here I will distinguish between three kinds: there is ‘trained moral nose’; there is what can be called the ‘strange smell’ response; and the third is a cluster of what can be called ‘the human responses’. The first version, ‘trained moral nose’, is the least interesting because it only just qualifies as moral nose at all. It is a response more theory-laden than at first appears. With actual smells, discrepant reports admit of more than one explanation. One is that different people vary in sensitivity to different smells. But the sense of smell may also be influenced by beliefs and by expectations. If I smell something when blindfolded, my response may be different according to whether you have told me it is a rare wine or a sample of elephant’s urine. Similarly, what appears to be the spontaneous moral ‘smell’ of something may be influenced by religious prohibitions or by some secular moral code. Take the use of human embryos for research and the disposal of spare embryos that are not needed. Some people feel an immediate intuitive revulsion at this, while others have no such feelings. The explanation could be that some people are better than others at detecting a particular moral smell. But it seems more likely that the response is influenced by differences in relevant moral beliefs: for instance that the embryo is or is not a human

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Grounding moral arguments

being, is or is not a person, and does or does not have a dignity that should be respected. Where arguments are given, appealing to the relevant moral beliefs, we no longer have a case of moral nose. In other cases supporting arguments are not given, and the person is not conscious of them, so the appeal is still to moral nose. But there may be reason to see the response as trained by a moral outlook or theory. In such cases, moral nose has no independent authority. It is as strong – or as weak – as the moral code or theory that it draws upon. The second version, the ‘strange smell’ response, is a matter of being disturbed or disgusted by the unfamiliar: ‘In France they eat horsemeat!’ The anthropologist Mary Douglas has suggested that the shock may come from breaching some of our deeply entrenched categories.21 If our category of what is edible excludes it, we are likely to be disturbed by seeing horsemeat on the menu. Perhaps part of the hostility to Darwin came from something other than religion: from the threat to the previously sharp category division between humans and animals. Some of the revulsion Devlin and others had against homosexuality may have come from its perceived threat to previously simple gender categories. Moral nose is often used in bioethics to detect the strange smell that indicates a threat to previously entrenched category divisions. Cloning subverts traditional categories used in thinking about reproduction. Children of post-menopausal mothers or lesbian couples subvert traditional categories of parenthood. To the extent that moral nose in bioethics simply dislikes the strange smell of practices that disrupt previously established categories, it has nothing to be said for it. This kind of response only provides more exhibits for the museum of moral quaintness. In this museum the gender department contains – from different periods – shocked reactions to women wearing trousers, to men with long hair or to women with cropped hair. The museum’s ethnic department, more sinisterly, contains the word ‘miscegenation’. The third version of moral nose is the one it is likely that Orwell wanted to appeal to in the case of Stalin’s mountain of corpses and is the one I want to appeal to in the case of the tortures and humiliations at Abu Ghraib and Guantanamo Bay. What can be called the ‘human responses’ to other people are part of the psychological core of morality. We can feel sympathy for other people when they suffer, and have the capacity to care when they are denied respect. If we see that someone is in agony, in general we ourselves feel sympathetic anguish and some desire to alleviate their pain. If we see one person humiliating another, as when someone spits on a beggar or ridicules another person’s disability, we are outraged or distressed. These responses also act as powerful inhibitors of any of our own actions that might cause someone suffering or would show a lack of respect for their dignity. As we all know, these human responses can be over-ridden by other parts of our psychology. Self-interest, lack of imagination, distance, or ‘compassion fatigue’ may damp down the human responses. Anger, sadism, or the



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desire for revenge may make us enjoy someone’s suffering or humiliation. Those who organise war or genocide become skilled at seeing how to anaesthetise the human responses, or how to provide over-riding countervailing motives. But the fact that these strategies are necessary shows how powerfully present the human responses are in most of us most of the time. We take this so much for granted that we are inclined to think of people totally or largely lacking in these responses as pathological. That the human responses are a sign of our humanity may be tautological, but the charge of inhumanity against those who lack them is a severe one. The role of these responses at the psychological core of morality comes partly from their role in restraining barbarous acts, but also partly from their centrality in our idea of humanity. The interplay between intuition and theory The explanation of Lord Devlin’s ‘abhorrence’ of homosexuality can plausibly be sought in some combination of trained moral nose and the strange smell version. The conventional moral outlook of the period in which he grew up included the idea that gay sex was both immoral and disgusting. His nose may also have been trained by his Catholicism. His church, then as now, condemned gay sex as sinful. The strange smell version also seems to have had an influence: his phrase ‘unnatural vice’ suggests awareness of a threat to conventional categories of ‘natural’ sex. The trained part of Devlin’s moral nose can be put aside here, as the strength or weakness of that part of his view derived entirely from the strength or weakness of the conventional or religious morality on which it depended. Here, the relevant deliverances of his moral nose are of the strange smell variety. And these seem to belong in the museum of moral quaintness. It is certainly hard to see what authority such reports of strange moral smells could claim to function as moral excluders, let alone as a basis for legal prohibition. Disgust at torture, or at cruelty and humiliation in general, has a different psychological basis. The human responses are independent of worries about strange smells or about blurred categories. And, while they may be supported by theoretical considerations, they are usually spontaneous rather than a case of trained moral nose. Their origins are in empathy and imagination. Because we can empathise with other people, we can feel sympathy when we see them suffer, or outrage when we witness their humiliation. Empathy with the person we see is itself a form of imagination. But the role of imagination takes our sympathy beyond people in front of us and extends our concern also to people far away or whose happiness or harm will be in the future. (It also extends our concern to members of other species. To the extent that they too have feelings and can suffer or want things, in principle at least we can empathise with them too.) This extension of concern leaves room for a great deal of moral debate.

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The human responses prompt us to avoid the cruelties of war. But, sometimes, the case for war may also be rooted in our ability to imagine the suffering or degradation of those who will be victims if some defensive or protective war is not fought. In most of the difficult moral dilemmas, the human responses to actual or imagined events tell on both sides. I want to put forward the proposal that the human responses should be over-ridden only when what is at stake on the other side is more important (‘the lesser evil requirement’), in a way that could be validated by the human responses themselves (‘the validation requirement’). Our immediate human responses to such things as killing or torture are treated by some – for instance by many absolute pacifists – as an excluder. The present proposal is not so strong. Immediate human responses should be treated at least as an early warning system. They show at least that there is need for a substantial justification for doing whatever triggers them. The proposal’s bite comes in what counts as justification, in the lesser evil requirement and the validation requirement. The ‘lesser evil’ requirement allows alternatives to absolute pacifism. There is room to argue that a particular war may be a lesser evil than the alternative, though obviously the claim will often be controversial. But the validation requirement is a severe restriction on such justifications. It rules out wars fought for abstractions (national interest, empire, geopolitical balance, world domination, religious or ideological victory, national loyalty, etc.) except in the very rare cases where those abstractions are linked to avoiding human disasters that would arouse our human responses. We may have to correct for cognitive distortions, and for our limited imagination, here. The proposal involves the intellect and the human responses working together. This proposed ‘priority of the human responses’ means that these responses trump other kinds of intuition. Sympathy for people who are gay, persecuted for their sexuality, trumps claims about nasty moral smells and traditional categories. Sympathy for those whose lives and health may be saved by embryo research trumps intuitions about violating of embryonic dignity. (The human response to dignity not being respected is a revulsion against someone being humiliated. The intellect has a small but useful role here, to remind us that there is no such thing as humiliating an unconscious embryo.) This approach takes intuitions seriously as a source of morality. Trying to ground morality in reason alone, independent of emotion or intuition, risks creating a morality for Martians rather than humans. Here Kant was a bit of a Martian. Morality rooted in human values has to listen to our intuitive responses. But Kant also said that understanding the world needs thinking as well as observation. He said we should interrogate nature not like ‘a pupil who listens to everything the teacher chooses to say’, but like a ‘judge who compels the witnesses to answer questions which he has himself formu-



Jonathan Glover 43

lated’.22 We should approach our moral intuitions in this way too. Bioethics committees of the great and the good often find it easiest to treat conventional intuitions with the respect traditional pupils were supposed to give teachers. There is so much deference and respectability. In this context, the note of gleefully disrespectful questioning (what might be called the John Harris tone of voice) is one of philosophy’s important contributions to the world. Notes   1 J. Harris, On Cloning (London and New York: Routledge, 2004), p. 53.  2 Ibid.  3 Ibid.  4 Ibid., p. 54.  5 Ibid., p. 56.  6 Ibid., p. 53.  7 Ibid.  8 Ibid.  9 S. Hampshire, ‘Morality and Pessimism’, in S. Hampshire (ed.), Public and Private Morality (Cambridge, London, New York, Melbourne: Cambridge University Press, 1978), pp. 1–22. M. Warnock, ‘Do Human Cells Have Rights?’, Bioethics, 1:1 (1978), p. 8. 10 P. Devlin, The Enforcement of Morals (London, Oxford, New York: Oxford University Press, 1965). 11 Ibid., p. 17. 12 Ibid., p. 17. 13 H.L.A. Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963). 14 Devlin, The Enforcement of Morals, p. 111. 15 Ibid., p. 107. 16 Ibid., p. v. 17 George Orwell, ‘Letter to Humphry House, 11 April 1940’, The Collected Essays, Journalism and Letters of George Orwell, vol. 1 (London: Penguin, 1970), pp. 582–3. 18 G.E.M. Anscombe, ‘Modern Moral Philosophy’, in G.E.M. Anscombe, Ethics, Religion and Politics, Collected Papers Volume 3 (Oxford: Blackwell, 1981), p. 40. 19 D. Dennett, ‘Cognitive Wheels: The Frame Problem of AI’, in D. Dennett, Brainchildren, Essays on Designing Minds (Cambridge, MA: The MIT Press, 1998), pp. 181–205. 20 A. R. Damasio, Descartes’ Error: Emotion, Reason and the Human Brain (London: Macmillan, 1996), p. 51. 21 M. Douglas, Purity and Danger, An Analysis of Concepts of Pollution and Taboo (London: Routledge and Kegan Paul, 1966). 22 Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith (London, Melbourne, Toronto, New York: Macmillan, 1929), Preface to the 2nd edn, p. 20.

4

Hanging around with Jackson: consistency in ethical argument, and how to avoid it Richard Ashcroft

When should we accept a conclusion – and when should we look harder? In his John Locke lectures, Australian philosopher Frank Jackson writes: A […] much-discussed case is the debate over abortion and infanticide. Most of us take a very different attitude to abortion as opposed to infanticide: we allow that the first is permissible in many circumstances, but that the second is hardly ever permissible, and yet it is hard to justify this disparity in moral judgement in the sense of finding a relevant difference. Some think that we should abandon the disparity – by changing our attitude to infanticide, or our attitude to abortion. Most of us think that we should look harder for the relevant difference.1

Jackson makes this observation not out of naive intuitionism, still less out of the sort of conceptual-linguistic conservatism favoured by some followers of Wittgenstein, but in order to illustrate one practical difficulty in developing what he calls ‘folk morality’.2 Jackson refers to folk morality by analogy with ‘folk psychology’ – our lay, pre-scientific account of the mind. The idea is that morality might look rather different at the end of moral enquiry, once we have all the relationships between moral concepts and commitments, and non-moral concepts and facts, sorted out. For Jackson, moral argument is as much about discovering our theoretical commitments as it is about determining answers to specific moral questions.3 In this chapter, I am not concerned with the morality of abortion and infanticide, but rather with the role of consistency arguments in moral thinking. The place of argument in ethics John Harris thinks consistency is important in moral thinking. He thinks it is important, because he thinks that ethics is about making good arguments, and he thinks this because he thinks it is important to be right in ethics. And he thinks that being right in ethics is about believing things for reasons, which should be convincing and compelling.



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A rough restatement of the process of ethical argument, on Harris’s account, might be as follows.4 We are faced with a moral problem, about which we care passionately. If we did not care passionately about it, it would hardly be worth our attention, especially since there are plenty of other problems that we do care passionately about. We might care out of intellectual curiosity alone: some moral problems are like chess problems – they may get under our skin if we cannot see the solution. But more likely we care about them because we care about what happens to ourselves and others – we want to make the world a better place. Having identified the problem and realised that we care enough about it to want to solve, or at any rate understand it, the next step is to produce the strongest arguments one can for a conclusion. How one identifies a conclusion is perhaps not formalisable.5 As with discovery in science, what matters is how the conclusion is justified, rather than how it was arrived at in the first place. Having demonstrated or justified one’s moral conclusion as strongly as one can, taking into account the various arguments that might be advanced against it, one is once again entitled to passions. We are to care about refusal to accept the conclusion we have established, because this could amount to wrongdoing, amoralism, irrationality or stubbornness.6 But while constructing and justifying one’s argument, passion is out of place. It is rarely, if ever, a reason for you to accept a general moral norm, that I happen to believe it ­passionately. Can argument be out of place in ethics? One way to block this approach to moral argument is to hold that there is a fundamental error in Harris’s account of moral thinking, in that at least some moral judgements are not formed as conclusions to arguments, and indeed cannot be so formed. Worse, attempts at moral argument concerning such judgements (or their contents) will be systematically misleading. Anne MacLean’s discussion of the Survival Lottery as involving ‘plain murder’ is an example of an approach of this kind.7 Rather sophisticated moral theories have grown up around this view of the place of reason in ethics.8 For example, we might think that moral judgement is more like perception than it is like mathematical reasoning from premises to conclusions. Alternatively, it might be considered more of a question of mastery of the conceptual resources of a language. John Harris has a short way with both of these approaches. Here is what he says about ‘olfactory moral philosophy’:9 Williams seems to be recommending […] the use of what Orwell, following Nietzsche, called ‘moral nose’. The nose of the basically decent man, being a well-adjusted instrument, will tell him what to do, and he will act for the best. But for this sensitive insmell to operate, it is necessary not only for the immediate to be significant, but for us to be confronted with it, to be, as it were, within sniffing distance. If we are in the presence of the people at risk, their presence might well have its effect and this effect might be for the best. Inasmuch as

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Williams regards the immediate as a stimulus triggering an automatic response, that is all that can be said, for this response will, or will not, occur and either will or will not be for the best. But there is also the suggestion that a grounded decision ‘might not even be decent’. […] But this insistence on the moral priority of the nose is disturbing. For much if not most of what should concern us morally takes place beyond the limited range of our organs of moral sense. If we are to act for the best we must ground not only particular decisions, but the conduct of our lives, on a careful consideration of the many different features Williams points to, seemingly only to reject.10

In other words, although Harris does not reject the existence or use of finely tuned moral feelings out of hand, he does reject the claim that they are privileged, so far as moral judgement goes, over moral argument. An example is the following: consider arguing with a male chauvinist about attitudes to women: When this attitude-holder is presented with any arguments or theories which attempt to identify features possessed by paradigm objects of a different attitude and which purport to show how the features that justify and explain such different attitudes are also possessed by women, and is asked to justify [his] position in the light of such criticism or theories, [he] has [his] answer ready. ‘Their being women is the reason, all the reason in the world.’11

Suppose, then, that we accept Harris’s approach to moral argument, and accept its centrality and priority in moral thinking. What are we to make of Jackson’s suggestion that, faced with the apparent incoherence of our taking different moral stances concerning the permissibility of abortion and infanticide, we should look harder for the morally relevant difference? Are the old ways best? Jackson himself thinks that some revisionist arguments in moral philosophy are compelling. Just before the abortion and infanticide example, he writes: [W]e have, it seems to me, currently no clear sense of the place and rationale of the distinction between doing and allowing in folk morality. We appear to give it a central role when we distinguish sharply between the immorality of killing someone, and that of refraining from contributing to famine relief even when we know that a consequence of so doing is that someone will die. And yet it is notorious that it is very hard to say why the difference between doing and allowing should be so important in a way which squares with our intuitions about other cases and makes good general sense. Perhaps we will resolve this clash by following the consequentialists and abandoning the moral significance of the distinction, and, as a result, increase markedly how much we contribute to famine relief. [….] At present the situation is unclear (though I will not conceal my opinion that the consequentialists are winning the debate).12



Richard Ashcroft 47

So there is no presumption in favour of folk morality in Jackson’s mind: sometimes he thinks it is right (abortion is different from infanticide in some morally relevant respect) and sometimes it is wrong (at least in the famine case, killing and allowing to die are morally equivalent in the relevant respects). But in each case, he thinks that strong moral arguments on their own are not enough to settle the question, at least inasmuch as it is reasonable to defer acceptance of their conclusions and to look harder for moral distinctions. I think that on Harris’s theory of moral argument, this should be genuinely puzzling. Why is there this unwillingness to follow the argument where it leads, and to make the moral judgements the argument gives us reasons to make? Logic and moral argument The argument on abortion and infanticide Jackson sets before us could be turned into simple argument in formal logic, thus: Let p stand for ‘Abortion is morally permissible at any stage of pregnancy, provided the foetus is sufficiently severely disabled’; and let q stand for ‘Infanticide is morally permissible in the first weeks of life, provided the infant is sufficiently disabled’. Then we have: p p⊃q

\q

We would need to do a bit of work on this to make it fully rigorous, for instance by ensuring that the referential parts of p and q designate the same entity. But this is probably just logical book-keeping rather than serious philosophy. Assuming the argument is not enthymematic,13 the serious philosophy comes in two stages. The first stage is in establishing the material implication p⊃q. The second stage is in establishing that this sort of logical argument actually can represent a moral argument. I have nothing substantive to say about the first stage argument here. I am interested in Jackson’s problem, and what it indicates about John Harris’s approach to moral argument; this concerns the second stage of argument. If we accept p, and p⊃q, and reject q, then in the language of first order propositional calculus, we are asserting q&¬q, a contradiction, and thus we are guilty of inconsistency. Moreover, this is not ‘mere’ practical irrationality (for instance, we know we ought to permit some infanticides, but cannot bring ourselves to do so from weakness of will), but strict cognitive irrationality. While most of us can live with a little weakness of the will, we cannot live with inconsistency, since it permits us to believe anything and everything; from a contradiction we can infer any proposition at all.

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So what are our options, if we want to hang around with Jackson, rather than committing ourselves with Harris (or, indeed, with those who think that the impermissibility of infanticide entails the impermissibility of abortion)? How to resist a logical inference, while accepting the premises We can: (1) Reject p⊃q (2) Reject p (3) Accept the inconsistent set {p, p⊃q, ¬q} (4) Reject modus ponens (the rule that from p and p⊃q we may infer q) (5) Reject the assumption that this argument (or this sort of argument) can be translated into propositional calculus (6) Reject the assumption that this argument (or this sort of argument) can be considered a logical argument at all All of these possibilities look fairly disastrous. But some of them are at least interesting, from a philosophical point of view. Embrace contradiction! Recall that we have allowed our interlocutor the assumptions that p, p⊃q. On being given the conclusion q, we retain our assertion that ¬q, and seek to reject p or p⊃q. In moral discussion, this sort of thing is perfectly acceptable; indeed it is one way we seek to change the minds of people we discuss issues with. So either (1) or (2) is acceptable, if not very interesting, in moral dialogue.14 But not in classical formal logic. For, asserting p, p⊃q, and then asserting ¬q and trying to warrant this by asserting ¬p or ¬(p⊃q), is simply to accept option (3). So we can change our minds, but we cannot accept logical inconsistency. Change the laws of logic! What about rejecting modus ponens? (1) (2) and (3) are unattractive because, whatever our commitments to particular propositions or judgements, we are more profoundly committed to the rules of logic. Giving up on those would be disastrous not only for moral argument, but for any argument whatever. Would a rejection of modus ponens be disastrous in the same way? There are, as it happens, lots of logics in which modus ponens is not a rule.15 But simply to say, ‘Hurrah, I can reject q, while accepting p, p⊃q, just by choosing one of those’, would be rash. For to reject modus ponens would be to raise one’s logical stakes in a hyperbolic manner. One would have to live without modus ponens. It is difficult to see how to do so. When logicians do investigate the properties of these non-classical logics, it is usually because classical logics fail to model natural language very well, or have troubling implications.



Richard Ashcroft 49

Our only reason to reject modus ponens would be if we had some strong reason to do so. To adopt Jackson’s language, although ‘most people’ (including most sophisticated philosophers) maintain that even if abortion is licit, infanticide is not, this is not because they reject modus ponens. Rather, it is because they reject p, or p⊃q, in this case, or because they accept (5) or (6). Go non-cognitivist! (5) is slightly weaker than (6). (5) is the view that moral arguments are not arguments about propositions; (6) is the view that whatever moral arguments are about, they do not have any recognisable logical structure. In between (5) and (6) is another view, or set of views, to the effect that whatever the logical structure of moral argument is, it cannot be modelled by classical first order propositional calculus. All of these are views with respectable pedigrees. A natural way to cash out (5) is to deny that moral arguments can be translated into propositional calculus because in crucial respects moral arguments are not about propositions. This is a perfectly standard move in non-cognitivist theories of ethics, of which the best known is emotivism. In a non-cognitivist theory of ethics, moral judgements, such as p (the judgement that ‘late term abortion of a severely disabled foetus is morally permissible’), are not propositions, and have no truth value. To judge that p, is (for example) to express approval of the factual state of affairs actually or hypothetically obtaining, which prompts the emotion of approval. Or it is to utter an imperative in respect of such facts (for example: permit late term abortions under such and such conditions!). And there are many more, sometimes highly sophisticated, non-cognitivist accounts of the nature of moral judgement.16 An obvious difficulty for the non-cognitivist is that it is not clear what moral argument is, if not about moral propositions and their logic. If I judge that cricket is the best of all games, and you think it is the most absurd (to take an arguably non-moral example), then, we may swap facts about the game in the hope of emotionally swaying each other, but if we finally disagree, this is just sad. It is not even to give in to relativism, because we are not arguing about (moral or aesthetic) facts. Worse, we have to cope with the linguistic fact that we do form moral conditionals that seem to behave just like propositional conditionals (an example would be our p⊃q). And we use them fairly regularly. So the move to reject q on the grounds that we are committing some awful blunder by treating moral judgements just like propositions, seems to founder on a perfectly standard non-moral dilemma.17 Either (A) we give up on moral conditionals altogether (and not just this one we are concerned to reject), or (B) we allow their use, suitably reconfigured consistent with our non-cognitivist theory of moral judgements of

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choice, and are forced to say why this particular conditional cannot be saved. Alternatively (C), we stick to non-cognitivism, and accept that there is nothing special about this particular conditional, and we produce some other argument about why q need not be accepted. (A) is not going to be popular with practical moral philosophers, who are by and large committed to the idea that moral argument has a point. (C) is also rather unappealing, although (like (A)) we might be forced to accept it as a thesis in metaethics. Its lack of appeal lies in the natural way to spell it out: that moral argument can be a purely internal matter of getting my moral judgements into order, without compelling you in any way. Moreover, if, in discussion, I get you to accept both the validity of moral argument, and the premises of an argument, and a valid argument, then we have agreed to follow the same rules. Hence, if the argument puts my judgements into order, it should put yours into order too. And the only way this could fail, is if our background set of judgements were relevant somehow. And to allow this would be to reject the commitment to formal argument. (B) could work, but given the generality of the type of moral argument, it looks rather ad hoc. What is special about this set of facts and our (or my) attitude to them that allows us to reject moral argument in this case, but not in others? In fact, to take option (B) takes us to our option (6). Non-cognitivists who allow that moral argument is possible generally take it up with a commitment to the formal properties of arguments.18 For instance, R.M. Hare develops a sophisticated non-cognitivist theory which makes moral prescriptions central to the analysis of moral judgements, but delivers moral argument on the basis of the grammar of prescriptives and the conditions under which they can validly be issued, from which he gets both a form of utilitarianism and a commitment to universalisability as the mark of the moral.19 Simon Blackburn has a complex theory of commitment to moral judgements out of which he develops a constructive theory of moral truth (quasi-realism).20 So to take a selective attitude to which conditionals one accepts, and which one rejects, is to hold that moral judgements have at most a ‘patchy’ logical structure. Drop generality! Before going on to describe what option (6) would be like, let us sum up where we have got so far. Accepting p and p⊃q, we are trying to reject q. We have tried, and rejected, simultaneously asserting and denying premises or conclusion; and we have tried, and rejected, abandoning modus ponens. Next, we have considered rejecting the form of moral argument given, on the basis that it mistakenly treats moral judgements as propositional. Yet, as we have seen, even non-cognitivists (to whom the non-propositional nature of moral judgements is fundamental) make moral arguments, that they expect to be persuasive or compelling. So unless we are prepared to take an extreme version of non-cognitivism that sustains no arguments, or we adopt



Richard Ashcroft 51

an almost as extreme version that is concerned with internal consistency of judgement, but not with persuasion of others, we are stuck. Unless, that is, we reject the generality thesis. This is the thesis that an argument is compelling if it is valid, and if its premises are true – or whatever non-cognitivist equivalent for truth one chooses in order to give a semantics for formal moral reasoning – and it does not matter actually what those premises and conclusions are. To reject the generality thesis is to assert that sometimes it does matter what those premises and conclusions are, over and above whether or not they are true or false. Logic can work, but it is patchy. It only works within some sets of judgements or beliefs, but not generally. To see logic this way is to see it as being like sets of rules in Wittgensteinian language games. The rules in the game of promising, for instance, are not the rules in the game of gangsterism. In our example, the rules of Obstetrics and Gynaecology differ from the rules of Neonatology. In the former, the rule ‘late term abortion for severe foetal abnormality is permissible’ is accepted. In the latter, the rule ‘infanticide for severe neonatal abnormality is permissible’ is not accepted. And the equivalence of the acts, that might be accepted in some variants of the philosophy game, is not accepted in either of these medical games. Indeed, that the equivalence thesis is not accepted, and the two killing rules have different acceptance-values, could be considered part of the constitutive differences between obstetrics and neonatology (and philosophy). Harris’s view of this sort of move has been noted above, in his rebuttal of the chauvinist with acute ‘moral perception’. But suppose we think, with some moral realists, that there are moral facts. We might think that it is a moral fact that abortion is permissible, and it is a moral fact that infanticide is impermissible. Our moral knowledge might then be mainly a list of moral facts. In some parts of our moral knowledge there might be more structure than this. But we cannot assume that the world of moral facts is structured throughout, without further argument. Go particularist! This idea underlies so-called moral particularism.21 Jonathan Dancy, one of the principal architects of moral particularism, defines it thus. Moral particularism is a species of holism about reasons: I maintain that all reasons are capable of being altered by changes in context – that there are none whose nature as reasons is necessarily immune to changes elsewhere. When I talk of altering a reason, I meant to suggest not that the consideration which is a reason is altered, but that its nature as a reason changes. Instead of being a reason in favour of some course of action, it ceases to be a reason for action at all, or even becomes a reason against.22

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In our example, the particularist can agree that abortion is permissible (that in suitably picked out contexts, serious disability is a determining moral reason to carry out an abortion). The particularist can also agree that in terms of the theory of action, there is no relevant difference between late term abortion and infanticide (so far as the foetus goes – there is a huge difference so far as the mother goes). Then the particularist has two options. The particularist should say that this entails that in the suitably picked out contexts in which abortion is morally permissible, this actiontheoretic entailment warrants moral entailment, ceteris paribus. Then either he or she says that the suitably picked out contexts yielding justificatory reasons for abortion do not yield justificatory reasons for infanticide. Or he or she says that the suitably picked out contexts yielding justificatory reasons for infanticide are different from those yielding justificatory reasons for abortion. Either way, the modus ponens is blocked, because moral modus ponens applies to reasons for action, which are contextdependent. And the contexts of abortion and infanticide are relevantly different. I think that of all the strategies for rejecting moral arguments I have set out, particularism is the only one that is intellectually honest and a going concern in moral theory.23 Yet the particularist must still overcome the charge that a rejection of the Harris argument is not ad hoc. The nonparticularist should respond to the particularist’s invocation of contexts and reason-giving by asking for the premises relied on in respect of the differentiating features of the contexts of abortion and infanticide to be given, and can still complain that these were not given at the outset. The nonparticularist can also complain that either the premise giving can be done (in which case we have moral generalities, albeit with rather a fine texture), or it cannot. If it cannot, then it appears that we have a ‘mere list’ account of morality, and moral argument is then impossible. The particularist also owes us an account of the epistemology of the items on the list. Jackson, Pettit and Smith put the point thus: The issue, more precisely, is whether there is a mapping from some subset of the non-moral properties that persons, actions, and states of affairs may possess onto the moral properties that they possess, or whether such a mapping would have to start instead from the entire set of non-moral properties that persons, actions, and states of affairs possess. The latter view has recently been defended by John McDowell and Jonathan Dancy. Against this we argue that if moral thinking were entirely particularistic, then, absent a commitment to Moorean non-natural properties, there would be no way to capture the extension of the predicate ‘right’ short of providing an infinite list of supervenience conditionals, conditionals which map entire ways the world could be non-morally onto the way it is morally. But this would mean that finite creatures like ourselves are incapable of having any moral knowledge at all, for we are incapable of grasping such an infinite list. The alternative view is that there is some pattern



Richard Ashcroft 53 in the antecedents of these conditionals, and that what we grasp when we grasp the extension of the predicate ‘right’ is what this pattern is.24

Conclusion So, do we hang around with Jackson, or make up our minds with John Harris? Perhaps both. If we accept p, p⊃q, then I think we must make up minds to accept q. Our only alternative, I think, is to adopt some more or less strong version of particularism. Even under particularism, to accept p and p⊃q but not q is to equivocate over what we are doing in accepting p⊃q (by switching from reading ⊃ as implication in moral theory to implication in action theory, or by switching reason-giving context). But, and Harris would allow this, we might, in advancing an acceptance of p, p⊃q for the sake of argument, retain a deeper commitment to ¬q. The onus is then on us, as Harris says, to produce our argument for ¬q, and this will involve rejecting, or at any rate reconceiving, p or p⊃q, or perhaps what it is to accept them. This is part of the nature of reworking ‘folk morality’. As Jackson says: If John Rawls’s influential account is right, systematic moral thinking involves the attempt to balance compelling general principles against considered judgements about how various options should be characterized. We can think of this story as one story about how folk morality should evolve under the constraint of reconciling the most compelling general principles with particular judgements. In this way we hope to end up with some kind of consensus.25

For my part, I think it matters to be right in morality. The uncomfortable feature of Rawlsian coherentism in morality is that our moral judgements made today as reflectively and cautiously as possible may turn out to be wrong, from the viewpoint of a final moral theory. The annoying feature of such coherentism is that it undermines the practice of moral judgement, by allowing endless dithering about whether this judgement I am making now satisfies ‘wide reflective equilibrium’ or not. Unfortunately, there seems to be no way around it. How do we get to assert, or judge, that p? The moral of this hike through the logic of moral arguments is that the crucial issues are not the formal properties of moral arguments, but the conditions under which we can assert or judge that p, and that warrant material implications between p and q. These issues are issues of moral epistemology, and of the metaphysics of morals. If Harris wants us to make up our minds with him, rather than hanging around with Jackson, then he needs to give us more than good moral arguments. He needs to give us an account of how, directly or indirectly, we get to judge or assert that p (whatever p may be). I don’t think it is sufficient to argue either dialectically (if you assert that p, then you must also accept p⊃q, and so you are committed to q). For this will drag one back into Rawlsian coherentism, and we are hanging around with Jackson. It might be sufficient to adduce pragmatic considerations: so long as we are ‘inside’ morality, the rules of morality allow us (indeed we

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are committed) to take certain judgements as foundational, and the rest of the work of moral argument and conceptual analysis is to follow through from these foundational judgements. But from this too it is a short step to Rawls (what if we found that we took both p and ¬q as foundational, and discovered that p⊃q?) I think I have shown that if we want moral argument to bite, as Harris does, we need to avoid coherentism, and hence my challenge for Harris (possibly an immortalised Harris!) is to take up a challenge he has so far left to his friends, and develop his moral theory. Meantime, I’m hanging around with Jackson. Acknowledgement This essay was written while I was a Visiting Fellow at the Centre for Applied Philosophy and Public Ethics, University of Melbourne in January– March 2005. My visit was funded by an Australian Bicentennial Fellowship. Notes  1 F. Jackson, From Metaphysics to Ethics: A Defence of Conceptual Analysis (Oxford: Oxford University Press, 1998), p. 134.  2 For example, A. MacLean, The Elimination of Morality: Reflections on Utilitarianism and Bioethics (London: Routledge, 1993).   3 See Jackson, From Metaphysics to Ethics, pp. 130–3.   4 Based on his work, passim, but see especially his Preface to The Value of Life: An Introduction to Medical Ethics (London: Routledge, 1985).  5 Harris, The Value of Life, p. xvi; ‘In Praise of Unprincipled Ethics’, Journal of Medical Ethics, 29 (2003), pp. 303–6.   6 See M. Smith, The Moral Problem (Oxford: Blackwell, 1994), ch. 4. J. Savulescu, ‘Desire-Based and Value-Based normative Reasons’, Bioethics, 13 (1999), pp. 405–13.  7 MacLean, The Elimination of Morality, ch. 6. See also J. Harris, ‘The Elimination of Morality’, Journal of Medical Ethics, 21 (1995), pp. 220–4; Y. Levin, ‘The Paradox of Conservative Bioethics’, The New Atlantis, 1 (2003), pp. 53–65, www.thenewatalantis.com/archive/1/levin.htm (accessed 28 November, 2013) – thanks to Bennett Foddy for this reference.   8 See A. Miller, An Introduction to Contemporary Metaethics (Cambridge: Polity, 2003).  9 See also J. Harris, ‘Williams on Negative Responsibility and Integrity’, Philosophical Quarterly, 24:96 (1974), pp. 265–73; On Cloning (London: Routledge, 2004). 10 J. Harris, Violence and Responsibility (London: Routledge and Kegan Paul, 1980), pp. 111–12. 11 Harris, ‘The Elimination of Morality’, p. 222. 12 F. Jackson, ‘Non-Cognitivism, Validity and Conditionals’, in D. Jamieson (ed.) Singer and his Critics (Oxford: Blackwell, 1999). See also F. Jackson, ‘DecisionTheoretic Consequentialism and the Nearest and Dearest Objection’, Ethics, 101 (1991), pp. 461–82.



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13 See S. Holm, ‘If You Have Said A, You Must Also Say B: Is This Always True?’, Cambridge Quarterly of Healthcare Ethics, 13 (2004), pp. 179–84. 14 See G. Priest, An Introduction to Non-Classical Logic (Cambridge: Cambridge University Press, 2001), ch. 8. 15 Ibid. 16 See Miller, An Introduction to Contemporary Metaethics, chs 3–5. 17 Ibid., pp. 40–2, 58–73, 96–104. 18 Jackson, ‘Non-Cognitivism, Validity and Conditionals’. 19 R.M. Hare, Moral Thinking: Its Levels, Method, and Point (Oxford: Oxford University Press, 1981). 20 S. Blackburn, Ruling Passions (Oxford: Clarendon Press, 1998). 21 See B. Hooker, ‘Moral Particularism: Wrong and Bad’, in B. Hooker and M.O. Little (eds.) Moral Particularism (Oxford: Clarendon Press, 2000). F. Jackson, P.  Pettit, and M. Smith, ‘Ethical Particularism and Patterns’, in Hooker and Little (eds.) Moral Particularism, pp. 79–99. 22 J. Dancy, ‘The Particularist’s Progress’, in Hooker and Little (eds.) Moral Particularism, p. 130. 23 See M.O. Little, ‘Abortion’, in Raymond Gillespie Frey (ed.) A Companion to Applied Ethics (Oxford: Blackwell, 2003), pp. 313–25. 24 F. Jackson, P. Pettit, and M. Smith, Mind, Morality and Explanation: Selected Collaborations (Oxford: Oxford University Press, 2004), pp. 5–6. 25 Jackson, From Metaphysics to Ethics, p. 133.

5

The unbearable desire for explicitness and rationality in bioethics Michael Parker and Micaela Ghisleni

‘[S]omeone can only claim that their actions or decisions stem from moral conviction or are dictated by moral considerations – are in short part of an attempt to live by ethical standards, if they can say why those actions are right, if they can show how they are justified. To have a moral belief is, whatever else it is, to believe that the world will be a better place if certain things happen and others do not, and that it will be a worse place if the reverse is true. Such a judgement would be incoherent if the maker of that judgement could not say why it would be better or worse in these and these circumstances.’1

In this passage, which appears in The Value of Life, John Harris suggests that for a person’s actions to be moral, that is, for those actions to be part of an attempt to live by ethical standards, that person must be able to say why those actions are right and must be able to show, through the use of reason-giving, how those actions are justified. He also argues that it would be incoherent to have beliefs about what kinds of things make the world a better or worse place unless the holder of those beliefs could say why this is the case. In making these claims, Harris is in accord with much that is written about the role of ethics in medicine, and public policy: i.e. that in order to be ethical, a decision must be justifiable – and indeed, justified – on the basis of morally relevant reasons.2 Harris appears to be going rather further than this, however, by suggesting not only that those in public life ought to be able to justify their actions, but that moral life in general – in both public and private – is to be delineated in terms of rationality, explicit reason-giving and justification. On this reading, Harris might be said to be suggesting that the moral life has two key features: rationality and public reason and, to conceptualise the moral life in this way has important implications for what is to count as becoming a moral person – that is, for moral development. It suggests firstly, that a person’s moral development will be largely a function of their cognitive development, that is, it will depend almost entirely upon the development of a set of skills and abilities related to reasoning, justification and rationality.



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And, it implies, secondly, that moral development involves a growing recognition of the importance of, and ability and willingness to engage in, certain types of social interaction: public reason, justification and argument. In this chapter we consider these implications by addressing two related questions: To what extent, firstly, can moral development be identified with increasing rationality? And to what extent, secondly, can moral development be said to be constituted by the kind of progressive social engagement implied by Harris’s account? We shall also, along the way, consider a broader issue: the extent to which the moral life can be adequately encompassed by explicit reason-giving and justification. Moral development Before going on to address these questions directly, it is worth pointing out that Harris is not alone in his identification of morality with rationality. Neither is he alone in seeing these as systematically related to the ability to engage in certain types of social interaction characterised by reason giving and justification. Jean Piaget,3 Lawrence Kohlberg and John Rawls for example all argue that people’s moral development, and indeed their ability to engage in any social relationships at all, are dependent upon, and follow in the wake of, their broader cognitive development, which is itself characterised by a progressive ‘decentring’ from an initial state in which the understanding and perception of the child are profoundly ‘egocentric’. For Rawls, for example, a very young child: ‘Has not yet mastered the art of perceiving the person of others, that is of discerning their beliefs, intentions and feelings, so that an awareness of these things cannot play a part in interpreting their behaviour’.4 In this he is echoing Jean Piaget who, writing in 1923, described the very young child as follows: [The egocentric child] does not bother to know to whom he is speaking nor whether he is being listened to. He talks for himself or for the pleasure of associating anyone who happens to be there with the activity of the moment. This talk is egocentric, partly because the child speaks only about himself, but chiefly because he does not attempt to place himself at the position of his hearer. … He feels no desire to influence his hearer nor to tell him anything; not unlike a certain type of drawing room conversation where everyone talks about himself and no one listens.5

For all three writers this inability to see others as persons, which is inevitably of tremendous moral import, is a function of the child’s limited cognitive development and it is only with qualitative shifts in the development of cognition that genuine social relationships, and hence a mature morality, become possible. [T]he purely perceptual point of view is always completely egocentric. This means that it is both unaware of itself and incomplete, distorting reality to the

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extent that it remains so. As against this, to discover one’s own viewpoint is to relate it to other viewpoints, to distinguish it from and co-ordinate it with them. Now perception is quite unsuited to this task, for to become conscious of one’s own viewpoint is really to liberate oneself from it. To do this requires a system of true mental operations, that is operations which are reversible and capable of being linked together.6

For Piaget, Kohlberg and Rawls, the young child’s cognitive egocentrism informs the child’s early moral understanding which is, as a result, based on unilateral respect for authority figures rather than on reciprocity or mutual respect for persons.7 But, as the child matures and as cognitive ability to decentre develops, this makes possible the emergence of what Piaget calls ‘autonomous morality’ or ‘mutual respect’, in which the child, by middle childhood, begins to develop a sense of reciprocity with others, making it possible for the child to imagine the viewpoint of another person which is, for Piaget, the crucial step in moral development. From this point onward Piaget envisages a gradual, natural process of unfolding moral development ending in mature cooperation based on rational moral principles. Like Piaget, Kohlberg too sees the highest stage of moral development as involving the following of self-chosen, rational moral principles, as does Rawls, for whom the final stage in moral development is characterised by a ‘morality of principles’ in which a person becomes attached to these highest order principles themselves, in their own right and for their own sake.8 Like Harris then, Piaget, Kohlberg and Rawls identify the end point of moral development as rationality. And, like Harris too, all three see moral development as being closely related to the development of particular kinds of social interactions culminating in those based on: rationality, reasongiving and justification. The limits of rationality The claim that morality can be identified with rationality and the related claim that the moral life is one lived according to rationally established principles can be criticised in a number of ways. The psychologist Carol Gilligan, for example, has questioned the claim that rationality constitutes the pinnacle of moral development on empirical grounds.9 Gilligan argues that to place too much emphasis on rationality as the basis for morality is to run the risk of neglecting the important roles of interdependence, emotion and caring in the moral life. She argues that Piaget, Kohlberg (and by implication Rawls too10) neglect the importance of these aspects of morality in their accounts of moral development because of methodological weaknesses in their empirical work, which was carried out on an all-male sample and which, Gilligan argues, inevitably led them to undervalue women’s distinctive moral vision and hence to overlook these relational features of morality. Gilligan argues that Piaget’s and Kohlberg’s views of moral development are



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overly individualistic, and tend to over-emphasise the value of independence and rationality at the expense of the values of interdependence and care. Whereas the individualistic approach of Kohlberg and Piaget leads to a language of rights, liberties, duties and rationality, Gilligan’s research foregrounds a complementary language of care and responsibility arising out of recognition of the important role of interdependence as a feature of our lives with other people. Gilligan’s empirical claim is that women tend to speak in a ‘different moral voice’ to men, a voice that is undervalued by traditional models of moral development and by the research methodologies of Piaget and Kohlberg, and that it is for this reason that these aspects of morality have tended to have either gone unnoticed or to have been undervalued. [T]he world she knows is a different world from that refracted by Kohlberg’s construction of Heinz’s dilemma. Her world is a world of relationships and psychological truths where an awareness of the connection between people gives rise to a recognition of responsibility for one another, a perception of the need for response. Seen in this light, her understanding of morality as arising from the recognition of relationship, her belief in communication as the mode of conflict resolution, and her conviction that the solution to the dilemma will follow from its compelling representation seem far from naive or cognitively immature.11

Gilligan does not argue that reasons, justification and rationality have no role in the moral life, but argues that to focus on these exclusively is to tell only one half of the story of morality and of moral development. Furthermore, whilst Gilligan argues that it tends in fact to be the case empirically that women express an ethic of care more often than men, she acknowledges that this is not necessarily the case, and that both are key features of the moral life for anyone, regardless of gender. She argues that any complete theory of moral development must incorporate both an ethic of care and a recognition of our essential interdependence on the one hand and, on the other, a recognition of the role of reason and of principles in moral judgement. The different voice I describe is characterised not by gender but theme. Its association with women is an empirical observation, and it is primarily through women’s voices that I trace its development. But this association is not absolute, and the contrasts between male and female voices are presented here to highlight a distinction between two modes of thought.12

Gilligan’s argument – that a full and coherent account of morality and of what it means to live a moral life requires not only the use of reason and the application of moral principles but also a range of complementary relational skills, practices, virtues, and judgements – finds echoes in Onora O’Neill’s arguments in Duties and Virtues, concerning the limitations of an ethics based solely on principles.

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O’Neill criticises the idea that right action in a particular setting can be determined through the application of a moral rule or principle alone.13 She does so, not on empirical grounds but on the grounds that moral rules and principles are always by their very nature underdetermining of action. That is, she argues, moral principles and rules are not capable, in most cases, by themselves of specifying in a particular situation what ought to be done. The application of a rule in any particular case is dependent upon interpretation and upon judgement: Given that principles of action, and with them moral requirements, are not algorithms, practical reasoning that refers to principle can never dispense with judgment and sensitivity to the varieties of cases. Some of the central concerns of contemporary virtue ethics, including its emphasis on judgment and discrimination of cases, are not therefore alien, but indispensable to a consideration of duty. This should surprise nobody; Kant, the greatest exponent of an ethics of duty, was also the first to insist that rules cannot determine their own application and that judgement is indispensable in all following of rules.14

In this, O’Neill is, in addition to Kant, also following Aristotle who argued that, This is the essential nature of equity; it is a rectification of law in so far as the law is defective on account of its generality. This in fact is also the reason why everything is not regulated by law: it is because there are some cases that no law can be framed to cover, so that they require special ordinance. An irregular object has a rule of irregular shape, like the leaden rule of Lesbian architecture: just as this rule is not rigid but is adapted to the shape of the stone, so the ordinance is framed to fit the circumstances.15

The point here is not that moral judgment demands more and more, finegrained, rules or principles to determine ever more closely the ways in which such rules and principles are to be interpreted, but that a coherent account of morality requires recognition of the complementary and interdependent roles of principles, virtues and moral judgment.16 My aim is rather to suggest that without some rather extraordinary assumptions the claim that we must choose between duty and virtue because they are incompatible is wholly implausible. The cluster of ethical concerns which we associate with the two terms are close allies rather than irreconcilable rivals. Both clusters depend on viewing action as informed by principles which constrain but do not and cannot wholly determine what ought to be done and what it would be good to be.17

To accept the force of these arguments is to recognise the limitations of the kind of principle-based rationality called upon by Harris as a complete and exhaustive account of morality, and to see the complementary importance of virtue and moral judgement in any coherent account of the moral life.



Michael Parker and Micaela Ghisleni 61 Social engagement

We have seen that for Rawls, Piaget and Kohlberg moral development involves, in addition to an increasing rationality, a progressive movement from an initial state of ‘egocentrism’ towards a more ‘decentred’ or ‘social’ state characterised by the ability to engage in explicit public reason. Our consideration of the empirical work of Carol Gilligan, above, has suggested an important role for interdependence and relationships of care in development, and this suggests that an account of moral development in terms of a movement from an initial state of social isolation to one of social engagement is unlikely to be tenable. In addition to Gilligan’s own work in this area, a great deal of other empirical research has been carried out into early childhood development since Piaget and Kohlberg’s work appeared, and the concept of the egocentric child has been widely criticised both on empirical grounds and on the grounds of Piaget and Kohlberg’s research methodology.18 Taken together this suggests that it is unlikely that the young child is egocentric in anything like the sense Piaget, Kohlberg or Rawls believe. If one accepts furthermore that children acquire much of their understanding of morality through implicit or explicit ‘education’ by their parents or by those around them, which seems undeniable, this undermines still further the idea of childhood egocentrism in a number of important respects.19 For one of the key features of any relationship of this kind is going to have to be that it involves being brought to see some ways of behaving as right and others as wrong. This is important in the current context because, in order to be corrected by others (i.e. to be taught, cajoled and so on) and to have understood oneself to have been taught something one must also have understood these interactions as ‘correction’ or perhaps as ‘teaching’. One must for example have been able to distinguish ‘correction’ from other kinds of human behaviour such as, for example, accidental gestures, sounds etc. made absentmindedly by the parent (or others) and so on. And this in turn depends upon the child being able to see the other person, the ‘teacher’ as having certain intentions and wishes. What this implies is that, if morality, or indeed any learning at all, is to get off the ground it must be possible for the child to come to see his or her parents as having certain intentions in their interaction with him or her, at least one of these being an intention to bring the child to see the force of certain norms. That is, it must be possible, even if in an inevitably very underdeveloped sense, for the child to see him or herself as being in a certain type of relationship with another person. Clearly any such understanding will be radically different to that involved in a relationship between two adults. Nevertheless, what this means is that moral understanding of any kind can only begin to emerge in situations based on at least something like the mutual recognition of personhood i.e. social cognition. And this implies, contra Rawls, Kohlberg and Piaget, that an ability to engage in social interaction is a necessary condition for the initiation of the growth of moral understanding, rather than its product. The

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implication of this for any coherent theory of moral development is that it must see such development as having its origins in social, intersubjective, relationships of one kind or another. This is an important conclusion, for it suggests that the growth of moral understanding in the individual has its origins in social relationships of various kinds including those of care and interdependence. It suggests too that social interactions against a more or less implicit or explicit moral background of obligations, expectations, duties and so on along with an emerging mutual recognition of personhood, are the developmental fundamental, the sine qua non, of human moral experience. Conclusion In this chapter we have considered the claim that the moral life is to be delineated in terms of explicit reason-giving and justification, and the related claim that moral development is to be identified with increasing rationality. We have argued against this in a number of ways, that a full and coherent account of morality and of the moral life must be one which recognises that, whilst crucially important, the giving of reasons and the provision of explicit justifications rightly emphasised by John Harris inevitably takes place against, and indeed only make sense as part of, a rich and intersubjective background of more or less implicit moral discourses and practices which are themselves constituted by and constitute a background of developmental social relationships with a moral dimension i.e. are permeated by obligations, duties, expectations, virtues and so on with both an individual and communal dimension. Nevertheless, whilst it seems perfectly possible to us that people might, and that many people in fact do, live moral lives without being able to put the principles or virtues by which those lives are ‘guided’ either into words or into the form of explicit justifications, this should not, of course, be taken to mean that we are suggesting that those in public life such as doctors and other health professionals should no longer be required to justify, through the explicit use of moral reasons, the decisions they make or indeed that moral justifications of this type make no sense. It is only right, it seems to us, that we should expect of those in positions of power that they be explicit about the ethical principles and standards by which their practice is guided and that they should, in appropriate ways, be accountable for their actions, and that the management of public institutions should be subject on occasion to public reason and deliberation. And in this, Harris’s argument in The Value of Life – and in his work more broadly which calls for those in positions of power and influence to account in this regard – is of enduring importance.



Michael Parker and Micaela Ghisleni 63 Notes

 1 J. Harris, The Value of Life: An Introduction to Medical Ethics (London: Routledge, 1985), pp. 4–5.  2 M. Parker, ‘Getting Ethics into Practice’, British Medical Journal, 329:7458 (2004), p. 126.   3 J. Piaget, in H.E. Gruber and J.J. Voneche (eds.) The Essential Piaget (London: Routledge and Kegan Paul, 1977). L. Kohlberg, The Psychology of Moral Development: The Nature and Validity of Moral Stages (New York: Harper and Row, 1984). J. Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972), pp. 453–512.  4 Rawls, A Theory of Justice, p. 469.  5 J. Piaget, ‘The Language and Thought of the Child’, in Gruber and Voneche (eds.), The Essential Piaget, p. 70.   6 J. Piaget and B. Inhelder, The Child’s Conception of Space (London: Routledge, 1967), p. 193.   7 J. Piaget, ‘Moral Feelings and Judgements’, in Gruber and Voneche (eds.), The Essential Piaget, p. 156.  8 Rawls, A Theory of Justice, pp. 473–4.  9 C. Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge: Harvard University Press, 1993). 10 For a specific criticism of John Rawls ‘principle of justice’, as supposed rational, there is the Martha Nussbaum proposal of the neo-aristotelian ‘capability approach’. See M. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000). 11 Gilligan, In a Different Voice, p. 30. 12 Ibid., pp. 11–12. 13 O. O’Neill, ‘Duties and Virtues’, in M. Warnock (ed.), Women Philosophers (London: Orion Publishing, 1996), pp. 257–72. 14 Ibid., pp. 265–6. 15 Aristotle, Nichomachean Ethics, trans. J.A.K. Thompson (London: Penguin, 1976), p. 200 (1137b). 16 See also, J. Mcdowell, ‘Virtue and Reason’, The Monist, 62 (1979), 331–50 for a similar argument. 17 O’Neill, ‘Duties and Virtues’, pp. 260–1. 18 M. Donaldson, Children’s Minds (London: Fontana, 1978). Gilligan, In a Different Voice. 19 M. Parker, The Growth of Understanding (Aldershot: Ashgate, 1995), pp. 35–53.

6

Moral epistemology and the survival lottery Torbjörn Tännsjö

Introduction It has become commonplace in epistemology to distinguish between ‘foundationalism’ and ‘coherentism’. According to foundationalism, a person, S, at a time t, is justified in the belief that p, if, and only if, p is itself self-evident for S at t, or, it is self-evident to S at t that p is derivable from propositions that are self-evident for S at t. All the propositions that are self-evident for a person at a time constitute an epistemic foundation for this person at this time. And all justified beliefs for this person at this time are part of, or rest upon, this foundation. Coherentism, on the other hand, is the idea that a person is justified in the belief at t that p if and only if p coheres with the rest of this person’s beliefs at t. Typically the coherentist also rejects the claim that there exist any self-evident propositions, but I will not take this rejection as definitive of coherentism. The crucial idea, which defines coherentism, is the idea that justification is a matter of coherence. And coherence in turn is a matter of degree. The better a belief coheres with the rest of a person’s beliefs, the more justified this person is in holding it. Coherence is a matter of consistency, of course, but also of explanatory relations. The closer the beliefs of a person are knit together by explanatory and confirmatory relations, the better the justification of each of them, according to coherentism. It is difficult to find people these days who adhere to foundationalism with respect to scientific beliefs. Why is this so? It is sometimes claimed that a problem with foundationalism is that while a certain proposition is self-evident for one person at one time, the same proposition may lack self-evidence for another person at the same time, or for the same person at another time. However, this fact is not devastating to foundationalism. After all, justification is relative to a person and a time, and justification is no guarantee of truth (knowledge requires both justification and truth), so a foundationalist can consistently concede that self-evidence is a variable phenomenon. Self-evidence is still a source of



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justification. If p is self-evident for a person at a time, then, at the time, the person cannot help believing that p is true, and if the person cannot help believing this, then the person is permitted to do so; since ‘ought’ implies ‘can’ the person has no obligation to think otherwise. However, a genuine problem for foundationalism is that the requirement it poses on justification is so strong that it leads (only too quickly) to scepticism. This has to do with the fact that the set of self-evident propositions for a person at a time is always highly restricted. And there seems to be no way to derive all the scientific propositions from it, in which we are prone to think we are justified in believing. It does not matter whether we think of the foundation as a set of self-evident general law-like propositions (rationalism) or particular observational propositions (empiricism). Even if the premise of Descartes’ cogito ergo sum is self evident, which is hard for any person to deny, not even the rather cautious conclusion of it is secure. It is a hotly debated subject whether any such thing as a person exists, as an ontological category in its own right. How then can I be certain that I exist? So foundationalism has come into disrepute in the sciences. And with it has the axiomatic-deductive method; I here think of the idea that we should attempt a priori to reach deep theoretical truth. Still various different forms of the axiomatic-deductive method hold their sway over much moral thinking. In recent time philosophers such as John Harsanyi, R.M. Hare, Peter Singer, and Thomas Scanlon,1 to mention just a few, have tried to find a secure foundation, in the form of a transcendental deduction, logical derivation, or derivation from some facts about human nature or rational thought, or from an ideal contract, of their favoured moral theories. Or, they have just claimed that it is self-evidently true. This means that their method of investigation should be characterised as axiomatic-deductive. But even in morality a coherentist notion of justification has come to be accepted by many. It has come to be known under the label ‘reflective equilibrium’. And, naturally, this view of justification sits ill with the axiomatic-deductive approach. Ironically, the inventor of the label, ‘reflective equilibrium’ is John Rawls, who does himself, in his contractual model (in A Theory of Justice2), aspire to having found a secure foundation of his favoured theory of justice. In the present context it is not possible to show that either a coherentist or a foundationalist notion of justification is appropriate in a moral context. I will simply take for granted that foundationalism is just as dated in morality as it is in science. The search of a secure foundation of our moral beliefs is just as quixotic as the search of a secure foundation of our scientific beliefs. But this means that, if in our definition of knowledge (and justification) we rely on foundationalism, we trivialise the problem of scepticism. So what I want to explore is the coherentist approach to justification in morality. And I will discuss a method of arriving at systematic moral truth that such a notion of justification invites.

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First of all, a terminological clarification. Some philosophers speak of the coherentist or reflective equilibrium ‘method’ in morality. This is a confused way of speaking. Coherentism is not as such a method of investigation. It is a criterion of justified belief. Justification is not a method. Justification in the form of a reflective equilibrium is something we arrive at, if we are lucky, in our pursuit of truth. Secondly, reflective equilibrium is not our goal in our epistemic endeavour. If we would end up in reflective equilibrium, but still hold false beliefs, our epistemic endeavour would have failed. What we are after is not reflective equilibrium or coherence but, rather, truth. Typically we seek the truth about what we ought to do in morality, and a true explanation of why we ought to do it. In our search we arrive at a more closely structured set of moral beliefs. The better one of our moral beliefs coheres with the rest of our beliefs, the better justified we are in holding it. Justification, then, is (if we are lucky) the result of our endeavour, but not its goal. Why is coherence a sign of justification? This is a rarely discussed question. The explanation is, I submit, that we have an epistemic goal: we want to believe what is true (and want not to believe what is false). But to hold a belief that p is to believe that p is true. Now, since we do not want to give up what (subjectively) we believe to be true, the very fact that we believe p renders it reasonable (rational) for us not to give up this belief. We are somewhat justified in this belief, then. And the more this belief that p coheres with the rest of our beliefs, the higher the (subjective) price of giving it up. The better it coheres with the rest of our beliefs the more (subjective) truth is invested in it. This goes for morality as well as science. We come to hold justified beliefs in morality, then, in the same way that we come to hold them in science. We search for true answers to moral questions, and we seek true explanations of these answers. The test of moral conjectures Moral explanations presuppose that there are moral theories. How can we rationally adopt moral theories, if there is no hope of any transcendental deduction of them? We have to rely on a hypothetico-deductive method. We make moral conjectures, I submit, and we test them inductively. We test them in the same manner that we test empirical hypotheses. We derive conclusions from them and we arrange with crucial tests. If the conclusions we derive (to the effect that certain actions are right or wrong) are morally acceptable, if they are in line with the content of our considered moral intuitions, then we may say that the moral conjecture in question explains the conclusions (it explains morally the rightness or wrongness of these actions). We then tend to speak of the content of our conjecture as a true representation of a moral law. This is parallel to when, in science, we tend to speak of our inductively supported hypotheses as descriptive of laws of nature. If a certain conjecture gives the best explanation (assessed in terms of



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generality, simplicity, independent credibility, and so forth) of the rightness or wrongness of an action, then we may say that we have evidence for the conjecture. In that case we have made an inference to the best (moral) explanation. The existence of these explanatory and evidential relations renders our beliefs (more) justified. This is no different from how we test empirical hypotheses in the sciences, then, with one important caveat. In morality, there is no observational basis of the testing. Instead we rely, as I remarked above, on the content of our considered moral intuitions. However, just as we may, in the light of what observations we make, revise our empirical conjectures, we may revise our moral conjectures in the light of our intuitions, in order to arrive at more plausible moral theories. The process works the other way round as well. We sometimes find that we have to reconsider even some of our moral intuitions, just as we have to dismiss some seeming observational evidence in the sciences. In the interest of overall adequacy, simplicity and coherence, some intuitions or putative observations have to yield. However, unless we can somehow explain away the recalcitrant intuition (or observation), or at least, unless we believe that we must have made some kind of mistake when we react as we react, regardless of whether we can point it out, we are not allowed to accept the conjecture at variance with the intuitions (observations). There are many ways in which we can expose mistaken intuitions. We could put them to cognitive psychotherapy. We could learn more about their origin. We could try to transcend our narrow cultural horizon. We should try to find out whether they are the result of some kind of cognitive mistake. When we do, it sometimes happens that they go away. In other instances, they stay, but we lose our credence in them (in the way we do when we see a stick in water as bent, but gain insights into optics). But sometimes they stay, and so does our credence in them. Then we speak of them as considered intuitions, and we rely on them. Then we require that the conjectures we have put to test should conform to them. In this sense, our conjectures must be intuitively adequate. Or, is this much too simplistic? Well, I have to admit that there is also another crucial difference between the sciences and morality. In the sciences we sometimes rely on thought experiments, but this is the exception rather than the rule. In morality it is the other way round: thought-experiments are the rule and confrontation of our theories with actual cases the exception. This difference between the sciences and morality has to do with the fact that all plausible moral hypotheses are extremely demanding when it comes to collateral factual input. There is no way that we can put, say, Utilitarianism to test by ‘applying’ it to a real case in order to assess whether the recommendations we deduce from it are intuitively acceptable. This is impossible since there is no way to deduce any definite recommendations of the kind we are after. There is no way of telling whether, from the point of view of Utilitarianism, a certain concrete action, performed by an agent in a concrete situation, was right or wrong.

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All this explains why we need so desperately to have recourse to t­ hought-experiments when we pursue normative ethics. In a thought experiment we may safely abstract from difficult empirical questions. We assume that we know all the relevant consequences of an action. Moreover, in thought experiments we have a possibility to avoid terms such as euthanasia, abortion, suicide, and so forth; terms that tend to trigger cultural cues. Moral thought experiments When pursuing moral thinking we need good thought experiments, then. What constitutes a good thought experiment? A good thought experiment makes a crucial difference between competing moral hypotheses. Good thought experiments can play the role that crucial experiments do in the sciences. Moreover, it is fine if they avoid culturally loaded terms. John Harris is famous for having constructed one such provocative thought experiment, which has proved to be extremely fruitful within normative ethics: the survival lottery.3 Together with some other thought experiments, it can be used to put to a crucial test the most influential moral theories about the ethics of killing. I know this since I have pursued this kind of study. In the present context I will sketch how the study was designed and discuss more thoroughly the survival lottery, which is one of the crucial experiments upon which I have relied. There are many ethical theories having implications for the problem of killing, of course, but three of them stand out as more influential and important than all the others: The Sanctity-of-Life-doctrine, the Right-toLife-doctrine, and Utilitarianism. I take the Sanctity-of-Life-doctrine to incorporate the following feature: according to this doctrine it is always wrong intentionally to kill an innocent human being. This is consistent with a defence of capital punishment (the killing of guilty human beings). It is consistent with killing, if the intention behind the killing is of the right kind, and if a principle of proportionality is met (the doctrine of double effect). A doctor may use a pain-killer, killing the patient as well, if the killing of the patient is not intended but merely a foreseen effect of the killing of the pain (provided death is near and certain anyway). The Right-to-Life-doctrine is the hard core of the kind of philosophy of rights defended in the Locke/Nozick tradition. The most plausible (least controversial) part of this doctrine is the idea of self-ownership. If there is anything you can own it should be yourself. Morally speaking, then, we own ourselves, according to this view. This means that we are free to do with ourselves whatever we see fit, including killing ourselves or having ourselves killed, so long as we do not violate any rights of other persons. But we are not allowed to kill others against their wish; at least we are not allowed to do this if they do not threaten our own lives. Here we need to rely on a distinction between active and passive killing. What the doctrine



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forbids is the active killing of other people, if they do not consent to this killing and doesn’t threaten our own lives. But according to this doctrine, there is no duty to help people in distress. I will also leave it an open question as to whether self-ownership can also generate ownership of material things and resources. This is a much more controversial aspect of the theory of basic moral rights. Utilitarianism is our third competing moral hypothesis about killing. According to Utilitarianism we ought to kill if, and only if, the consequences of killing are better than the consequences of not killing. It is difficult to know when, according to Utilitarianism, in real life, one ought to kill, and when one ought not to, but it is not far-fetched to believe that in many cases it is all right to kill. And in simple thought experiments it is possible to derive definite conclusions from utilitarianism about killing. This may seem simple enough, but there is also another part to the utilitarian theory of killing. According to Utilitarianism, we should have those, and only those laws regulating killing, that produce the best consequences. This prepares for a kind of double standard. In order to ascertain that we can sleep safely at nights, we have to establish laws prohibiting not only immoral killing, but all sorts of killing, at least if it can be properly described, in legal terms, as ‘murder’ or ‘manslaughter’. These are of course very rough sketches of the competing moralities about killing, but we are on familiar territory, so I think we know now enough about them to be able to put them to test. Crucial tests – the survival lottery In a study that I am currently pursuing4 I have put these three theories to several crucial tests, to do with murder in extreme circumstances: abortion, selective abortion, euthanasia, suicide, killing in war and so forth. I have tried to devise good (crucial) thought experiments. But I have also been able to use existing thought experiments. One such thought experiment is John Harris’s survival lottery. Here the problem is whether it is right to take lives in order to save lives. Let us see how we can use it to test the three competing moral conjectures. In Harris’s original version of the example we are invited to imagine a society where a system has been established to procure organs for transplant purposes, where each is given a lottery number. Whenever doctors have two or more dying patients who could be saved by transplants, and no suitable organs have come to hand through ‘natural’ deaths, they can ask a central computer to supply a suitable donor. The system is lifesaving, since the organs from one person can save the lives of several who are in need. What are we to think of this system, if it had been successfully implemented? When I tried to use this example as a crucial thought experiment I ran into one difficulty, which is parenthetically acknowledged by Harris. In

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his example, it is possible, although far-fetched, I would say, to claim that, neither the persons in need, nor the doctor who takes vital organs from a healthy person to help the needy ones, needs to intend the death of this healthy person. They, the doctor and the patients in need ‘merely wish to use a couple of his organs, and if he cannot live without them ... tant pis!’ – as Harris puts it.5 This is problematic if we want to confront our moral conjectures with a crucial thought experiment. Moreover, in Harris’s case we are presented with an institutional arrangement, which many may feel is abhorrent. They feel that it was worse if one of their children were sacrificed, in order to save lives, than it would have been if the same child had died from ‘natural’ causes. Regardless of whether this reaction is rational or not, I think this is the way most people react to the example. So I revised it in the following manner.6 A television company is casting a modern documentary soap opera. The intention is to transport 16 people together with a host of the show to a small island in the Pacific Ocean. The members of the expedition are supposed to gather for successive Tribal Councils and cast their votes. One by one the members of the expedition will have to leave the island. He or she, who is eventually left alone with the host of the show, is ‘Survivor’ and wins a fortune. On their way to the island their plane has a technical problem however. After an emergency landing on the water in the middle of nowhere the aeroplane soon sinks and takes its crew with it into the deep waters. The members of the expedition, together with the host of the show, however, succeed in swimming to a nearby small island. Here they find themselves on wasteland. They possess one sharp knife, they find a well providing them with fresh water, they can make up a fire using drift-wood which they collect on the shore and a still functioning lighter, but there is nothing for them to eat: no fish, no game, no roots or vegetables. They wait for help but none arrives. After two weeks they realise that they will all probably starve to death. They gather for their first Tribal Council and agree to arrange a survival lottery. The ‘winner’ of the lottery is held by the rest, killed with the sharp knife, roasted over the fire and then consumed for food. Here there is no doubt that the death of this person is intended. No one would like to eat anyone else alive! One person a week is killed in accordance with the rules of the lottery. Two members of the expedition declare that they believe in the Sanctity-ofLife-doctrine. They do not want to take part in the lottery, which is accepted by the rest. After several weeks five persons have been killed and eaten by the rest (among them the host of the show, who was the third to draw the killing ticket in the lottery). Here the intention has indeed been to kill these persons, before one eats them. The two Sanctity-of-Life-persons have died from starvation. The rest have buried them according to their wishes. Then a ship arrives and the nine survivors are rescued at last. According to Utilitarianism, the survivors have probably acted rightly. What better option was there? And the utilitarian, who wants in general to uphold a strong ban on murder, in order to feel safe in society, may, consid-



Torbjörn Tännsjö 71

ering the fact that the lottery was fair and the Sanctity-of-Life-persons were spared, allow that, in this case, no punishment should be meted out. The situation was exceptional so there is no point in persecuting the survivors. On the contrary, a utilitarian may rather come to admire them for their wise decision and congratulate them on their good luck. But what is the utilitarian to say about the fact that the two persons who adhered to the Sanctity-of-Life-doctrine, and who were allowed to stay out of the lottery, were buried after their death? I suppose we have to admit that the appropriate utilitarian reaction would have been that they should have been eaten, after they had starved to death. This could have saved another life among the members of the expedition, at no cost (in utilitarian terms) to these dead persons. According to the Sanctity-of-Life-doctrine, however, the survivors have acted wrongly. They are mass murderers who deserve a just punishment (perhaps capital punishment). Those who stayed out of the lottery did the uniquely right thing. According to the Right-to-Life doctrine, those who arranged the lottery did the right thing. It would have meant that their autonomy had not been respected, if someone had kept them from making this kind of arrangement. But according to the Right-to-Life doctrine it would have been wrong to eat the dead persons who had declared that they would take no part in the lottery (and who had declared, we should add, that they did not accept to be eaten under any circumstances). What are we to think of this lottery? I tend to believe that it was morally acceptable to kill actively and intentionally, in this manner, to save lives. I further tend to believe that it would have been right to eat the two persons who stayed out of the lottery and starved to death. If this judgement of the example is correct, then we have to reject both the Sanctity-of-Life-doctrine and the Moral Rights theory. Utilitarianism is intuitively adequate and it gives a good explanation of the content of my intuitions. So I believe it gains support from the experiment. Now, this is what I believe. But others may think otherwise. As a matter of fact, most people seem to think otherwise. In a survey I have conducted in China, Russia and the USA, where 1000 persons randomly selected in each country were interviewed, and where they were asked whether those who saved their lives through the lottery did the right thing, I obtained the following result:

China Russia USA

Yes (%)

No (%)

Don’t know (%)

10 17 38

86 80 58

4 3 4

Most people, then, seem to have intuitions about the case at variance with both Utilitarianism and the Right-to-Life-theory.

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But then the next step is to put our intuitions to scrutiny. We should submit them to cognitive psychotherapy. If we dislike this way of saving lives, why do we react as we do? One suspicion that comes to mind that here some aesthetic rather than moral views may be involved. Many people tend to have strong inhibitions to cannibalism. They feel disgust when they ponder the possibility that they should consume human flesh. There may be an evolutionary explanation behind this disgust, and it may be a good rule, in general, not to consume human flesh, but has not our gut feelings in this particular example led us astray? Would it not be wise to make an exception here? If we belong to strong deontological cultures, moreover, such as the Chinese culture (I show this in my forthcoming book in many ways), this should give us pause. If we manage to think through the example in a cool hour, and distance ourselves from, and reflect critically, about what we have been told, we may come to a different conclusion. The idea that we should not kill innocent people, not even in order to save lives, should be scrutinised. Perhaps we hold on here, for good evolutionary and pragmatic reasons, to a distinction without a difference. In our legal practice we need to distinguish between those who are guilty and those who are innocent (of crime), but does there exist any deep metaphysical difference here, capable of carving out a deep moral difference? If we think hard about the problem of free will we may come to find that we have to give up this distinction entirely. And there are many other ways in which we could critically ponder our reactions. Conclusion If the hypothetico-deductive method should be used in ethics, and if coherentism is a proper account of moral justification (just as it is of justification of scientific beliefs) then, by trying out different moral conjectures in different crucial thought experimental settings, we can arrive at the kind of structure in our beliefs, that allows us to say correctly that we are ‘justified’ in holding them. We are justified in holding more particular beliefs about different kinds of killing, if the content of these beliefs can get a joint and uniquely best explanation by a moral theory, for which we have then also inductive support. The inductive support we have gathered means that we are justified also in our belief that this moral theory is true. Of course, many other crucial tests must be arranged as well, not only in relation to problems of killing, but also in relation to problems in population ethics, distributive ethics, and so forth, before we can tell whether reflective equilibrium can be reached. And our intuitions must be submitted to ruthless cognitive psychotherapy. The hope, however, is that eventually one theory will stand out as successful in all these tests. In order to be successful, i.e. a good explainer, this moral hypothesis or



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theory must not only be ‘intuitively adequate’ in the sense that it is compatible with our considered moral intuitions about all the more particular cases, it must also be the most simple, general, and fruitful conjecture in the competition. It must also have a kind of credibility in its own right. This kind of systematic testing of moral conjectures is rare. The foundationalist notion of justification, and with it the search of a transcendental deduction of moral theories, has stood, and keeps standing, in its way. It is hard to say what outcome it would lead to, if this hypothetico-deductive approach to ethics were more systematically pursued. One possibility is that such an approach, systematically pursued, would lead to convergent moral beliefs. As a matter of fact, this is what I tend to believe. But another possibility is that it would lead to a situation where different persons were justified in holding different and even inconsistent moral beliefs. We may speak of this possibility as the possibility that a radical epistemic moral relativism is correct. It is interesting to speculate about what ontological conclusions we should draw from such an epistemic relativism, if it turned out to be the truth of the matter, and, even, what ontological conclusions we are allowed to draw from the mere possibility that such diversity might come to result from our pursuit of truth and explanation in ethics. Does epistemic relativism indicate that we ought to give up moral realism and the idea that there is a true answer to our moral problems to be sought ‘out there?’ Should we give up our belief in a moral law? Or, are we to think that there is more than one correct answer to our moral questions? Yet another possible move would be to draw sceptical conclusions. Even though there are true answers to our moral questions, we seem not to be capable of reaching them. Or, more daringly, should we all, each of us, stick to the belief that we have seen the light? The others must somehow have gone wrong in their thinking. After all, we are justified in holding our beliefs. These are problems of the upmost importance, and we become challenged to discuss them once we are confronted with the kind of moral philosophy pursued so successfully by John Harris – but they are problems for another day.7 Notes 1 J.C. Harsanyi, Essays on Ethics, Social Behavior, and Scientific Explanation (Dordrecht: D. Reidel, 1976). Hare, R.M. Moral Thinking: Its Levels, Method, and Point (Oxford: Oxford University Press, 1981). P. Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979; 2nd edn, 1993; 3rd en, 2011). T. Scanlon What We Owe to Each Other (Harvard: Harvard University Press, 1998). 2 J. Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972). 3 J. Harris, ‘The Survival Lottery’, in H. Kuhse and P. Singer (eds.), Bioethics: An Anthology (Oxford: Blackwell, 1999).

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4 T. Tännsjö, Taking Life: Three Theories on the Ethics of Killing (New York: Oxford University Press, forthcoming). 5 Harris, ‘The Survival Lottery’, p. 402. 6 I use it also in my book Understanding Ethics [T. Tännsjö, Understanding Ethics: An Introduction to Moral Theory (Edinburgh: Edinburgh University Press, 2008)]. 7 And indeed other chapters in this volume.

7

Harris and the criticism of the status quo Florencia Luna

One characteristic of John Harris’s thinking is its controversial nature. Some of Harris’s formulations and arguments can be read as strong criticisms of the status quo. Is this a fruitful position or is it useless and possibly ‘detrimental’? In this chapter I try to examine the role of criticism in the development of thinking and culture in general, as well as the function of intellectuals in society. I will consider the role of philosophy and bioethics in these matters. And finally, I will outline the implications of Harris’s work in relation to the criticism he proposes. At first glance, we may think that the established, the so-called status quo, is basically knowledge that has settled and been shaped over years of wisdom and experience. For instance, Sidgwick considered common sense morality ‘a marvelous product of nature, the result of long centuries of growth’.1 Moreover, ‘questioning’ can produce anguish. Ronald Dworkin quite explicitly says that the danger of moral insecurity is enormous when the use of the distinction between chance and choice is shifted. It implies modifying the assignment of personal and collective responsibilities. For example, when we argue that some genetic diseases do not occur by chance but are within our power to prevent through personal tests and assisted reproduction technologies, we are conceptualising the traditional link between chance and our responsibility in a different way. The transmission of this disease to a child is not a matter of chance, Nature, or God: we are responsible. In an even broader sense Dworkin adds: The terror many of us feel at the thought of genetic engineering is not a fear of what is wrong: it is rather a fear of losing our grip on what is wrong. [...] We are entitled to worry that our settled convictions will, in large numbers, be undermined, that we will be in a kind of moral free fall, that we will have to think again against a new background and with uncertain results.2

Criticisms of the status quo and of those deep convictions of our perception of right and wrong may also leave us with that sensation of a ‘moral

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free fall’. We are falling and cannot see any security or certainty nearby. Dworkin’s comment transmits the anguish and instability that is implied in criticising purified or settled convictions, the fear of losing our grip on what is wrong and the paralysis over where it takes us. To criticise often implies destroying without knowing which structure can be rebuilt or what will replace what has been destroyed. We confront the devastation of a leveled field and it is difficult to distinguish potential possibilities. Status quo convictions, previous settled structures, or common sense morality had at least appeared to offer a safe and recognisable haven in the past. However, even if the status quo can be viewed positively as condensing common knowledge, it can sometimes be the product of prejudice. Status quo frequently prolongs inherited authoritarian patterns and the ‘traditional values’ that oppress certain members of society, for example women or minorities, precisely those groups that lack the power to make decisions. Their voices are ignored and are imperceptible to already established and accepted structures. The intellectual and power The concept of the intellectual is relatively recent. It dates back to the seventeenth century when secular thinkers replaced the priests or the scribes. Intellectuals were observers who could penetrate the social and individual fabric of the historic moment in which they lived so as to transform its understanding. It implied a commitment to humanity – to lift themselves above the partial concern of the profession itself or the artistic genre, and commit themselves to global questions of truth, judgment and good taste.3 What role do ‘intellectuals’ play in society? How is intellectual work related to the development of the culture? What is the relationship of intellectuals to power? Noam Chomsky wrote about the New Mandarins – the intellectuals close to power. He was contemplating some intellectuals during the government of John F. Kennedy or those who were associated with President Woodrow Wilson during World War I.4 They sought to place intelligence at the service of the exercise of power. These persons were also known as ‘action intellectuals’. In the case of Wilson’s intellectuals, Chomsky points out that they influenced the United States’ decision to enter World War I, for example, through the state propaganda agency that counted with respected intellectuals like Walter Lippman, a serious analyst in the media. With respect to the seduction of power, perhaps we should consider that these can ultimately legitimise a historic continuity, a hegemonic class. They neither criticise nor propose changes but maintain certain structures. A clear case during World War II is that of Charles Mauras who was strongly linked to the collaborationist government of Vichy. In light of these kinds of intellectuals, Chomsky distinguishes the intellectuals that are critics of power. On reflecting on the significance of partici-



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pating in power, Chomsky says that if one were to maintain one’s integrity, one would surely be critical because many of the things that happen deserve criticisms. It is quite difficult to be critical if one is part of the circles of power.5 A paradigmatic example of the critical intellectual or rebel is, for example, Bertrand Russell. Many of these critical intellectuals eventually lost their jobs and security and some were even imprisoned for their ideas: Bertrand Russell in England; Rosa Luxembourg in Germany; Eugene Debbs in the United States. Zygmunt Bauman proposes another characterisation of the intellectual. The author, for example, associates the role of intellectuals with the nature of modernism and postmodernism in the analysis of culture. He speaks of two kinds of intellectuals: the legislator and the interpreter, identifying the first with modernism and the second with postmodernism.6 The first kind appeared when it was assumed that there were ways in which the truth of beliefs could be determined. In this setting intellectuals would ‘legislate’ the beliefs of the rest of the society. This consists in making authoritative statements that arbitrate in controversies of opinion and which select those opinions which, having been selected, become correct and binding.7 But nowadays, in postmodern times where there are many value systems, intellectuals are interpreters of different points of view. ‘Instead of orienting us toward the selection of a better social order, this strategy tries to facilitate communication between autonomous participants (sovereigns).’8 This implies the gradual abandonment of the search for a final judgment by intellectuals who are overwhelmed by the irrevocable plurality of forms of life, what amounts to the ‘art of civilized conversation’.9 For Bauman this is a reaction to the permanent conflict of values. These intellectuals prepare individuals to talk with people rather than fight them; to understand them rather than dismiss or annihilate them as mutants; to strengthen their own tradition with the free recourse to the experience of others, instead of closing them off to the traffic of ideas.10 Two different dimensions appear in Bauman’s account about the role of the intellectuals: the first being more ambitious and with a broader scope, and the second in a more modest role. However, even if they differ still more profoundly, both have a discourse that impacts on society. I do not intend to determine whether a ‘correct’ intellectual profile exists, but rather to illustrate the different kinds and their possible relationships with society and power. Hence, some of these categories may overlap. The intellectual as Legislator can function as Mandarin if the subject’s ideas are carried out in the core of power at a given time, but not necessarily. The intellectual can also be ignored by the power in place. The intellectual as Interpreter appears to be more remote from power for not clearly posing a dominant discourse (although can still wear the aura of neutrality by virtue of his or her ambiguous position, which can also turn out to be pro status quo). Thus, Bauman’s two characterisations show two possible ways of exercising the critical function of accepting the status quo. A point worth

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­ ighlighting, above all with respect to intellectuals in their role as Critic or h Rebel, is the degree of personal ‘inconvenience’ and ‘courage’ implied in not being seduced by the goodness of power and being true to one’s own convictions. Questioning and the role of philosophy In addition to showing personal courage, can these positions have any kind of social importance? The history of philosophy has a noble tradition in questioning the given. Of course, not every criticism is valid for the fact of its being a criticism. It would also be a simplification to think that one individual embodies a critical position; very often the critic or the new position is crystallised in one person but is the product of a period or a series of past thinkers. For example, the eighteenth-century French philosophers were highly critical of their time and society, and sparked many of the changes that followed. Rousseau explored the idea of the sovereignty of the people by questioning the concept of the monarchy’s absolute power. This concept later gave content to one of the most celebrated and recurring phrases of the French Revolution – ‘freedom and equality’. Montesquieu, in Lettres Persanes,11 satirised the political and ecclesiastical conditions in France. In Esprit de Lois12 he made a comparative study of society, law and the government, and proposed the separation of church and state, and the balance of powers. This proposal had a deep repercussion on the constitution of the United States, as well as on the emancipation movement in American countries. In France, for example, it influenced the Declaration of the Rights of Man and of the Citizen 1791.13 Similarly, Voltaire called for a reform of the justice system and drew attention to the disorganisation of justice. He advocated breaking the power of the church, and that the dogma and superstition of Christianity be replaced by philosophical enlightenment.14 These views criticised the status quo, absolute power as a divine right. They questioned the most profound bases of social and political organisation of their time – these were accepted structures although they were absolutely unjust. The views proposed new alternatives for a new social and political organisation – some of which are still a valuable part of our societies today, while others were lost along the way. Yet, they undoubtedly demonstrated how important responsible criticism can be in the development of a society. Another philosophical tradition, utilitarianism, enjoyed certain prestige in the Anglo Saxon academic settings. However, it has been characterised as being extremely critical of the status quo. This is perceptible from its very beginnings. Both Jeremy Bentham and John Stuart Mill were social reformers who opposed aristocratic ideas. It is a position that admits no arbitrary moral prohibition; it demands that all those who condemn something as morally wrong show who has been harmed. In this sense, Will Kymlicka says:



Florencia Luna 79 Historically, utilitarianism proved to be quite progressive. It demanded that the customs and authorities, which had oppressed the people for hundreds of years, be examined in light of the criterion of the progress of humanity. At its best, utilitarianism is a strong weapon against prejudice and superstition, providing a standard and a procedure that challenge those who claim authority over us in the name of morality.15

In this way, Jeremy Bentham, the founding father of utilitarianism, dared to write an article defending homosexuality in a period when no one had even begun to consider the matter; John Stuart Mill wrote extensively on women’s rights; and Peter Singer gave rise to the movement of animal liberation. Such examples show that a strongly critical attitude of the status quo of utilitarianism can have morally desirable consequences, especially regarding the emancipation of certain oppressed groups that have long endured unquestioned prejudices. Some critics, such as Samuel Fleischacker, said regarding utilitarianism and its redistributive position: In more recent times, however, the utilitarian principle has been less squarely on the side of redistribution. Since the 1940s, the vast majority of people in Western democracies have become quite comfortable, and the question of poverty has turned into a question about how to get the majority to give of their goods to a suffering minority. In these circumstances, it is unclear whether either the total or the average happiness in a society will be enhanced by a movement of goods from rich to poor.16

However this criticism may not be totally fair as, for example, Singer is one of the first philosophers to point to global poverty as a crucial issue. He argues extensively for its eradication against the status quo positions that we are not responsible and, at most, need only help the nearest.17 Thus, philosophy as a tool for critical thinking has played a fundamental role in the development of ideas. Very different philosophical traditions converge on this critical view that enables us to question the established at a given time. It works to awaken or illuminate new realities or identify prejudices. Many of these critical views have helped divulge or make ‘Copernican turns’ at the theoretical and practical levels. Perhaps another more modest, yet noteworthy, role of the criticism of the status quo exists and this is linked to the essence of deliberative democracies. Some criticisms, divergent unconventional discourse, and peculiar arguments help crystallise the vision of the minorities. In On Liberty,18 John Stuart Mill said that society practices a social tyranny more formidable than many kinds of political oppression: Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them;

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to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.19

To include these minority visions convokes plurality. It enriches any deliberative democracy or moral discourse that is involved in it. It helps to offer previously unconsidered reasons, to build better arguments, and to escape the social tyranny that Mill so rightfully feared. Hence, critical discourse in one of its aspects can help express certain minority rights (practically the entire history of human rights can be read from this perspective). In another aspect – even if this critical discourse of the status quo does not lead to social change – it still proves valuable since it provides unconsidered or minority arguments that enrich the moral discussion of a society.20 Bioethics and its application How does bioethics fit into the discussion? Bioethics paradigmatically touches on the essential nuclei of society. It probes the moral permissibility of certain practices and technologies – not only new technologies, like cloning and genetic engineering, but also those that have been available and practiced for years and generations, like contraceptive methods or euthanasia – and examines the validity of some public policies and reflects on right and wrong. It is an interdisciplinary field comprising experts from diverse disciplines: physicians, lawyers, researchers and philosophers, among others. In this section, I will highlight the kind of challenge that bioethics poses to those coming from philosophy. Even if philosophers have traditionally been concerned with reality, there is a kind of ‘ludic nature’ in philosophical work. The position of a philosopher (even that of a practical philosopher) is very different to that of a philosopher who works in bioethics or is a bioethicist. The bioethicist must forsake the ivory tower and ‘dirty herself’ with the ‘mud’ of reality. This reality is filled with subtleties, exceptions, and counterexamples that make its theoretical conceptualisation through theories, rules or general explanations particularly difficult. This implies not only a huge intellectual challenge, but often an added burden of bearing the rebuff of the traditional philosophers who do not consider bioethics (which they believe to have been contaminated by everyday realities), serious or philosophical enough. Even today, some philosophy departments look down on this discipline and treat it as a ‘minor’ form of philosophising. This may explain why many philosophers who are interested in practical philosophy remain at the theoretical level. For example, the criticism that Thomas Pogge poses about the objections that are formulated of Rawls’ Theory of Justice21 is very interesting. Pogge dedicates most of the introduction of his book, Realizing Rawls,22 to criticising those who only remain in a theoretical-normative questioning (even including Rawls



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himself in this attitude). Strongly dissenting with this tendency, he defends, explores and proposes practical implications that a theory like Rawls’s has. Many philosophers, like John Harris, have committed themselves to the real problems of humanity that bioethics proposes.23 Harris already had a space in the philosophical world. In 1975 he wrote one of his most challenging and controversial articles, ‘The Survival Lottery’.24 Returning to my initial considerations, I believe that we can trace a parallel with the situation of the critical intellectuals who defy the established and transit paths; who distance themselves from the comfort of power; or from established disciplines that academia accepts. Yet, can we trace a parallel with other tracks that philosophy posed like a critical attitude? Harris and the status quo What questioning does Harris signal? In general terms, we could say that he challenges dogmatic positions. However, are we not dealing with something that is completely outdated or remote at this moment of humanity? Were these criticisms not more relevant to the Enlightenment, emerging from the Middle Ages, but out of step with society today? If we were to consider the role that some dogmatic lines still play, the kind of questioning that Harris poses – in line with other utilitarians25 and bioethicists – is absolutely pertinent. Considering that wars are carried out in the world recently in the name of ‘religion’; that leaders of the most powerful nation use terms like the ‘axis of evil’; that some regions in the world (like Latin America) reject education in sexual healthcare and reproduction policies; that abortion is illegal even in cases of rape or serious fetal diseases; and, that any kind of assisted reproduction is prohibited (as was in Costa Rica), then, such criticism is highly relevant. Note that in Argentina, women with post-abortion problems occupy 45 per cent of the beds in obstetric wards in public hospitals. Complications because of illegal abortions are the main cause of maternal death.26 If we consider a pandemic like AIDS, it is inconceivable that in January 2005 a controversy still existed about condom use for AIDS prevention among the bishops in Spain and the Vatican.27 It is astonishing that the crime implied in denying condom use has been concealed. Africa is endangered owing to this cause with extremely low life expectancy indices and an appalling rise in the number of orphans. ‘The AIDS epidemic has created around 13.2 million orphans (defined as children who have lost their mother or both parents to AIDS when they were under 15).’28 However, the Roman Catholic Church, through its official spokespersons, continues to condemn the use of the condom. In his article ‘Pro-Life is Anti-Life: The Problematic Claims of Pro-Life Positions in Ethics’,29 Harris reveals the problematic and paradoxically anti-life consequences pro-life positions imply. For example, it shows how

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by drawing a rigid distinction between acts and omissions or between what is sometimes called ‘direct’ and ‘indirect’ killing, pro-life advocates are prepared to countenance the destruction of countless innocent lives: [D]irect or intentional killing are maximally protected in pro-life approaches to ethics. Other lives, innocent or not, can be sacrificed, and this is why prolife positions often cost more lives, and pro-life advocates are often willing to countenance the deaths of more innocent people, than those they castigate for failing to treat life as sacrosanct.30

Harris also says: Pro-life positions pre-suppose a world in which there are no abortions even to save the life of the mother or in the case of child rape, a world in which conjoined twins are both left to die when one could be saved by an operation that must kill the other, a world in which those dying in agony cannot be prematurely released by a swift death that they desperately seek but are forced to linger on in suffering and in desperation, a world without contraception, without the Intra Uterine Device or the morning after pill, without Assisted Reproduction Technologies (which has brought hundreds of thousands of happy children into the world, children whom without it would never have been born).31

And he proposes a critical attention to this hypocrisy, arguing that a pro-life position does not in fact embody an uncompromising and principled stand against killing but instead is the articulation and defence of a particular set of justifications for killing normal human beings. Final remarks When we read some of Harris’s criticisms of the status quo, of the worldview of a dogmatic nature that prevails in the world today – above all in peripheral societies like South America or in many developing countries where these views have very strong political weight – the kind of proposal and criticism he makes is extremely valuable. Even if we do not entirely coincide with his arguments, and some of his statements might not be acceptable to everyone, Harris is enlisted in the tradition of the critical intellectual and the questioning philosopher. Although the strong role of the intellectual demolishing social structures no longer prevails – à la manière des philosophes during the Enlightenment – we must admit, at least, that the more modest role of critical discourse offers new arguments and proposals that enrich any democracy. Such a critical role still exists and is necessary to any society that tries to reflect on itself and not fall into dogmatic discourses that can suppress its most vulnerable members. Finally, in light of this ‘globalised’ planet that rewards assimilation, massification and a degree of indifference, I believe that we should value and highlight the quota of courage in Harris’s proposals.



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 1 H. Sidgwick, The Methods of Ethics, 7th edn (London: Macmillan and Company, Limited, 1907), Book 4, Ch 5, Section 1.   2 R. Dworkin, ‘Justice and Fate’, 21st Century Trust, News and Journal, April (1999), pp. 24–34, pp. 33–4.   3 Z. Bauman, Legisladores e interpretes (Buenos Aires: Universidad Nacional de Quilmes, 1997), p. 10.   4 S.H. Dietrich, ‘Los intelectuales: ¿Críticos o servidores del poder?’ (El Universal y la Naciónal Mexico, 2001).  5 Ibid.  6 Bauman, Legisladores e interpretes.  7 Ibid. p. 13.  8 Ibid. p. 14.  9 Ibid. p. 184. 10 Ibid. pp. 203–4. 11 Charles de Sécondat Montesquieu, in E. Laboulaye (ed.), Lettres Persannes en Oeuvres (Paris, 1875–79). 12 Charles de Sécondat Montesquieu, De l’esprit de Lois, II vol. (Paris, 1945). 13 F. Copleston, Historia de la filosofía (Barcelona: Ariel, 1981), vol. VI, p. 27. 14 Ibid. p. 34. 15 W. Kymlicka, Filosofía política contemporánea. Una introducción (Barcelona: Ariel, 1995), p. 23 (author’s emphasis). 16 S. Fleischacker, A Short History of Distributive Justice (Cambridge, MA: Harvard University Press, 2004) pp. 106–7. 17 P. Singer, ‘Famine, Affluence and Morality’, Philosophy and Public Affairs, 1:3 (1972) pp. 229–43. 18 John Stuart Mill, On Liberty (1859), Spanish trans. (Madrid, Ediciones Orbis, 1971). 19 Ibid. 20 C. Nino, Etica y derechos humanos (Buenos Aires: Paidos, 1984), Chapter V. 21 J. Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971). 22 T. Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989). 23 Consider e.g., P. Singer, ‘Famine, Affluence and Morality’, in H. LaFollette (ed.), Ethics in Practice (Cambridge, MA.: Blackwell Publishers, 1997). 24 J. Harris, ‘The Survival Lottery’, Philosophy 50:191 (1975), pp. 81–7. 25 But see J. Harris, ‘Organ Procurement: Dead Interests, Living Needs’, Journal of Medical Ethics, 29:3 (2003), pp. 130–4. See also C.L. Hamer and M.M. Rivlin, ‘A Stronger Policy of Organ Retrieval From Cadaveric Donors: Some Ethical Considerations’, Journal of Medical Ethics, 29:3 (2003), pp. 196–200. 26 F. Luna, ‘Reproductive Health and Research Ethics: Hot Issues in Argentina’, Cambridge Quarterly, 13:3 (2004), pp. 268–9. 27 E. Piqué, ‘Sigue la polémica en la Iglesia’, La Nación (1 February 2005), p. 8. 28 P. De Zulueta, ‘Randomised Placebo-Controlled Trials and HIV Infected Pregnant Women in Developing Countries: Ethical Imperialism or Unethical Exploitation?’, Bioethics, 15:4 (2001), pp. 289–311; p. 290. 29 J. Harris, ‘Pro-Life is Anti-Life: The Problematic Claims of Pro-Life Positions

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in Ethics’, in M. Hayri and T. Takala (eds.), Scratching the Surface of Bioethics (Amsterdam, New York: Rodopy, 2003), pp. 99–109. 30 Ibid. p. 100. 31 Ibid. p. 101.

8

The natural as a moral category Harry Lesser

The purposes of nature John Harris has devoted his professional life to the application of reason to ethics. It is therefore appropriate in this Festschrift (to which it is an honour to contribute) to consider which kinds of appeal in moral matters are rational and which are not. One kind of appeal that has been very common, both in everyday life and in several philosophical traditions, is the appeal to what is natural. But there are grounds for maintaining that, despite the prevalence of arguments that a practice is right because it is natural, or wrong because it is unnatural, such appeals can have no place in any ethic that is endeavouring to be rational. This is for a reason first pointed out by Jeremy Bentham. ‘The natural’ must refer either (1) to what is always the case, or (2) to what usually happens, or (3) to what ought to be the case. But if it is the first, then everything that happens, good and bad alike, is natural; if it is the second, the appeal fails because there is no ground for assuming something is right because it is usual, or wrong because it is unusual; if it is the third, to say something is right because it is natural is to utter an uninformative tautology! However, it might be said that this is much too hasty, that the appeal to the natural is designed precisely to bridge the supposed gap between ‘is’ and ‘ought’ by showing that something is required by the purposes laid down by Nature, so that the argument is of the form: ‘Nature requires us to do x; therefore we ought to do x’. But all such arguments seem on examination to be flawed. In one form, indeed, the argument is valid: that is, if ‘Nature’ simply means God. Such an argument may appeal to those of us who have a religious belief, but they will not convince those who do not; since they will admit the validity of the argument, but deny the premise. But if ‘Nature’ is not a deity, but simply a name for the animal and vegetable worlds, it has no purposes or requirements, and lays down no rules. Some things are good for us, and other things bad, because of the nature of our species and the nature of the world around us; but they are not made good or bad by any

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Nature with a capital ‘N’. Something similar can be said about arguments based on ‘respect for nature’. It may well be a very good thing, other things being equal (which they are not always), to preserve as many kinds of environment and species of plant and animal as possible, and to encourage their development. It may also be a very good thing to appreciate and enjoy the world of animals and plants. But nothing is added to the reasons why this is valuable by introducing Nature as if it were something more than the sum total of this world. To develop this point further, we may say that appeals to Nature are typically confused in one of two ways. Sometimes they involve an equivocation between the literal and the metaphorical. Nature is spoken of as having purposes, requirements, etc., in a way that can only be metaphorical, if it is not to be obvious superstitious nonsense; but conclusions are drawn from this that can be valid only if this were literally true. For example, a writer in the Guardian towards the end of 2004 claimed that the great success of the human species ‘was not meant to happen’, ignoring the fact that, except on a religious view, nothing was meant or not meant to happen, in that cosmic sense. Some arguments exhibit a different kind of confusion. We may take as an example the arguments of those who try to derive an ethic for our times from the facts of evolution. These arguments contain several errors. The first error is to suppose that any practice which has persisted among humans must have been necessary for, or at least contributed to, the survival and/or improvement of the species. All we can actually infer is that it was consistent with survival and did not prevent it. The second error is to suppose that we know enough about human history and pre-history to be able to identify these practices with any degree of certainty. The third error is then to conclude that because these practices – e.g. the subordination of women – were necessary for survival at earlier times (which has not in fact been established, since that claim rests on the two earlier errors), they are therefore ‘natural’, and necessary now, even though conditions have changed, and even though the species is currently succeeding better than it ever has before, and our problems (e.g. overpopulation), are largely the problems of success. The argument has some plausibility, being of the form ‘This was useful in the past: therefore it will be useful now’; but the premise has not been established, and the change in conditions, which invalidates the inference, has been ignored. Arguments of this kind can lead to highly probable conclusions: but only when they argue from the actual evidence that something was necessary or successful under conditions similar to the present, not when they appeal to a supposed human nature. Sometimes the argument is even more confused, and amounts, when the verbiage is stripped away, to the assertion that something is inevitable, and therefore those who do not practise it are being stupid and perverse! This type of argument is sometimes found among those historians who are interested in grand theories rather than facts. Arnold Toynbee, having developed a theory according to which the ancient Jews ought to have ‘developed’



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their religion and culture by becoming Christians, treated the persistence of Judaism and the setting up of the state of Israel not as a challenge to his theory, but as a perverse ignoring of the march of history! A parallel can be drawn with some of the popular appeals to ‘the purposes of nature’, in which there are attacks on types of behaviour which, if the theory were correct in the first place, could never have happened, let alone be increasingly prevalent. The varieties of human nature These arguments that we have been considering all appeal in the end to something which does not exist, namely the purposes of nature or history. But it might be said that there are other appeals to nature which are based on established facts, and which therefore escape the above criticism. One such type of argument goes from the presence of a characteristic in all or most of a particular group, such as men or women, white people or black people, to a conclusion about the nature of the group. This is not in itself a moral issue; but it is notorious that moral and political conclusions are often then drawn from statements about this ‘nature’. The first thing to note is that hardly anything is true of all members of a human group which is not true anyway of all humans. Thus in the case of white people and black people there may actually be nothing which is true of all members of one group and none of the other – it is not even true that all black people have darker skins than all white people. In the case of men and women, it was pointed out long ago by Plato, in The Republic, book 5, that there is only one distinction that can be made between all men and all women; and, however biologically important it is, it has no bearing on what work men and women should do or what positions in society they should occupy. But once one is dealing with what is only generally true, one is dealing with facts which have no implications about the nature of particular people. For example, it is true that men are better than women at carrying heavy loads. But this merely means that more men than women are suited to this kind of work. It does not mean that no woman is suited to it, or that every man is. Hence, although more men than women will be found in jobs that require the carrying of heavy loads, there is no ground for excluding women from applying for them or from being hired. Facts about what men or women are like as a class, even when true, tell us nothing about any particular person, or about how they should be treated. They may, however, have some implications for how groups should be treated. I will return to this later. It should also be noted that in any case the alleged ‘facts’ to which people appeal are very often untrue, and sometimes unintelligible, or are presented in a misleading way. Thus a claim was made some years ago that black children had a lower average score on IQ tests than white children. I have already pointed out that if this was true nothing would follow from it about the performance of any particular child. But it should also be a­ cknowledged

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that (a) there are good reasons for thinking that black children in a whitedominated society underachieve, and (b) IQ tests measure at best a small fraction of the skills that make up what we call ‘intelligence’. This is an example of another important general point: even when the facts are correct, not only can we not infer anything about particular people, but we also cannot infer that the characteristics in question are biological rather than culturally induced, and hence cannot infer that they are ‘natural’. Natural functions We may now turn to a different kind of appeal to nature, which is more directly moral and also more subtle. It is the one used, for example, by philosophers in the Thomist tradition. This is the argument that proceeds from the fact that something, such as a bodily organ, has a particular function to the conclusion that it must be used only in line with that function. For example – and this is the standard use of this argument – we are equipped with sexual organs which, when functioning properly, enable us to reproduce. From this fact any or all of four inferences are made: that, if we can, we should have children; that we should use these organs only to produce children and not for pleasure alone; that we should not produce children by any other means; and that we should not thwart the functioning of these organs. Of these four inferences, or types of inference, the second is not made by any actual religion or moral code. No one in fact holds that an organ must be used only for its biological purpose; in particular, no one holds that it is wrong for those who are infertile or for women past child-bearing age to have sex within marriage. Indeed, it would lead to very strange conclusions if one adopted this line. To take one example, one could use one’s mouth to eat and to talk, but could one use it to sing or to play an instrument?! Assuming one can identify the biological function or functions – and this is not clear even in the case of the sex organs – there is no reason why organs should not be used in other ways as well. And in some cases – e.g. for people who love and are committed to each other to give each other pleasure – there is every reason why they should. The first and third inferences both use a sense of ‘natural’ which we have not so far discussed but to which we must now turn: the sense in which it is opposed to ‘artificial’, and refers to what arises without human technological intervention as opposed to what is the result of the use of tools and equipment. This sense, it is important to note, avoids the problem set out in my opening paragraph; but the inference is still unsound. That something is natural in this sense is no ground in itself for saying that it ought to be done. There might be grounds (though they are not obvious) for saying that all of us who can have children reasonably safely, and also have the resources to bring them up, ought to do so, but they are not provided by the fact that we are naturally equipped to do so. Again, there may well be grounds for saying



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that some or all of the ‘artificial’ methods of producing children ought not to be used, or ought to be used only under certain conditions; but the mere fact that they are artificial is no argument against them. But the most complex argument is the fourth, the argument that one may not be obliged to set a natural process going, but must not set it going in such a way that it cannot be ‘naturally’ completed (this appears as an argument against any sexual behaviour that is not between a man and a woman and involving the organs of procreation), or interfere with its completion once it has started (this is an argument used against most or all forms of ‘mechanical’ contraception). Once again, when the argument is properly spelt out it is immediately obvious that the conclusion does not follow from the premise. There may be objections to any or all of these practices, though again they are not obvious. But that they lack or prevent the completion of a natural process is not in itself an objection to them. Exactly the same is true of curing an illness, catching a person who is falling, or hitting a choking person on the back. It may be objected that these are bad processes, and procreation is a good one; but even if this is always true (which is very doubtful) the processes are equally natural; and so the claim that one is ‘interfering with nature’ in the one case but not in the other cannot be sustained. There is also a subsidiary objection that it is not clear how one identifies with certainty the start or finish of any particular process, or indeed whether this can be done in any non-arbitrary way. But perhaps the crucial point, here and elsewhere, is that the mere fact that something is artificial rather than spontaneous, or that it interrupts the ‘flow’ of a natural process, is not in itself any ground for saying that it is wrong or bad, and conversely that fact that it arises naturally is not in itself a reason for saying that it is good. The spontaneous and the artificial From the above discussion two conclusions have emerged. The first is that there is a sense of ‘natural’ used in moral discourse which does not reduce either to ‘what is’ or ‘what ought to be’, namely the spontaneous as opposed to the artificial or human-made or culturally produced. The second is that this distinction is in itself not morally relevant. The spontaneous and the artificial are in themselves both morally neutral, and both contain fairly clearly some things which are good and some which are bad. So it seems that Bentham and others were right: the argument is more complex than first appeared, but the conclusion is that reference to the natural should have no place in a rational morality. But this conclusion would be incorrect. Although a thing is not good simply because it has arisen spontaneously, there are many benefits in preserving, enhancing and making use of what is spontaneous and in not being too ready to replace it with the artificial. The fact that the natural environment is natural creates no obligation; but the facts that it is often beautiful, very diverse, a home to diverse species, and our only source of food and of

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raw materials clearly do. How it should be looked after is a matter of legitimate dispute, but that it should be looked after is beyond dispute. Nevertheless, it might be said that this is still not to endorse the use of ‘natural’ as a moral category: it is simply to say that we should look after what we have, whether it arose naturally or artificially. Moreover, there is no presumption that we should do this by ‘natural’ rather than artificial means. As I said above, to say that we ought to preserve the natural environment is not to say that we should behave naturally. Indeed, the non-human species, who presumably behave naturally, are not conspicuous for their concern for the environment or the balance of nature! However, there is one more point to consider, and it puts a very different complexion on things. In effect, what I have shown, if the arguments are correct, is that the natural is in no way metaphysically or intrinsically superior to the artificial; and the attempts to show or imply that it is do not work. But it is still the case, for a number of reasons and in a number of areas, that where alternative methods are available the natural method is often, though by no means always, empirically the best. One reason for this is that natural methods of working are less likely to have unforeseen harmful consequences. One obvious example is the advantage of letting the body heal itself, or using the less powerful medicine in preference to the more powerful. This is, of course not always possible or sensible. Even when the ‘natural’ treatment does no harm it may still have the problem of being more painful than the alternative. But when it is possible there are clear advantages in leaving things alone. There are still some elderly people who as children were dosed constantly with laxatives even when their bowels were working normally, and who as a result cannot defecate without the help of a laxative. Another example is the use of organic fertilisers, which may exhaust the soil less than the chemical ones. This is all a long way from saying that natural methods are always the best or safest; but it is to say that this is often worth investigating and sometimes the choice should be for the natural method. But it is worth emphasising once again that the whole issue should be treated empirically: it is not that there is anything inherently superior in natural methods, but rather that sometimes they are safer, because their consequences are better known, and sometimes they are actually more efficient. As well as considering procedures which are in themselves natural, in this sense, there is also a need to consider procedures which take account of the likes and dislikes, and ways of behaving, that seem to arise spontaneously. It is true that not all of these are good or desirable, either for the individual or for other people; original sin has been called the one religious doctrine that can be proved empirically! But it is good sense to work with them, especially in teaching and in working as a team, people will work best if they are able to do what they do without strain, feeling that they are naturally inclined to do it. For example, it is not natural for children to sit still and be quiet, but it is very necessary that they learn to do this. Taking account of nature



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means keeping the period of quiet at first very short and then gradually lengthening it. In this connection there can be a need to consider both the nature of people in the mass and the nature of individuals. In some contexts the nature of the group needs to be considered; in others, the particular nature of individuals. For example, boys, as a group, may find it harder to be still than girls do, even though this will not be true of every boy in the group. There is of course, in any case, a great difficulty in distinguishing what is spontaneous and what is culturally learned; and also the advantage is not always with the spontaneous. But good handling of people, including oneself, requires at least taking account of what they find easy and natural and what they do not, and also of what in them cannot be easily altered, at least for the time being. These things may be widely shared, or may on the other hand, be peculiar to one or a few individuals. Finally, there are the advantages of a life style in which people remain in some contact with the natural environment. These are various, one being that since our existence depends on it, it is vital that people retain a sense of how it works. Another, connected with this, is that it may keep us better able to judge what we actually need, i.e. what is essential to our wellbeing. And generally, though this may not be established as yet, it is likely that it benefits our physical and psychological health. It may even be essential to it. These points may not be certain, but it would be wise not to run the risk. Conclusion I conclude that there is indeed no ground for asserting that the natural, qua natural, is good and the artificial, qua artificial, is bad. But there are excellent grounds for trying to work out empirically what is natural, in the sense of spontaneous; and there are at least three ways, and probably more, in which it is morally relevant. One is the result of the fact that natural procedures, in this sense, are less likely to have unintended consequences, and are therefore sometimes to be preferred, as being safer and more efficient. The second comes from the fact that, though we are probably the most adaptable of species we are not infinitely malleable, and we need to be aware of what in us, as individuals or as members of a group, is more or less unalterable. The third comes from the fact that an environment which is disproportionately artificial may well – even though this is not certain – have harmful physical and psychological consequences. For all these reasons a rational ethics will have no use for the metaphysical concept of the natural, but considerable use for the empirical one. It will be concerned always with what is beneficial and what is harmful, and will resist all calls to reject potentially beneficial practices, such as new medical treatments, because they are ‘unnatural’, or to condemn as ‘unnatural’ what happens to be a harmless minority taste. A rational ethics will, on the other hand, admit that what is natural rather than artificial is always worth examining for its possible benefits, and s­ ometimes well worth following.

9

Making sense of human dignity Deryck Beyleveld

Introduction Until recently, appeals to human dignity played a part in ethical theory most prominently in the work of Immanuel Kant. They also play a part in law, notably in the Preamble to the Universal Declaration on Human Rights of 1948 (UDHR), which proclaims it as the quality that is the basis of all fundamental rights and freedoms. Interpreted in a Kantian manner, this quality is the possession of the ability to act for reasons, which, amongst other things, involves the capacity to set goals or ends freely for one’s own actions; and, from this it follows that only human beings with the capacity to act autonomously have dignity and human rights. However, there is a tension in Kant’s writings between adoption of the will theory of rights (according to which the rights-holder can always waive the benefit of the rights held) and Kant’s belief in perfect duties to oneself that constrain autonomous action so as, in particular, to prohibit suicide, commercial dealing in one’s own body parts and so on. Latterly, however, appeals to human dignity have burgeoned in bioethics, alongside which there are repeated appeals to the concept in recent international legal instruments such as the Convention on Human Rights and Biomedicine and UNESCO’s Declaration on Human Rights and the Human Genome. Mirroring the tension in Kant, those who make much of human dignity in their discourse may be divided into two camps; those who deploy dignity mainly to empower persons to act autonomously in any way they wish, provided that this does not conflict with more important rights of others, and those who appeal to dignity to constrain various forms of autonomous action, even when no violation of the rights of others occurs. But, unlike Kant, some who appeal to human dignity in the latter way often do so when those affected by the actions are beings whose capacity for autonomous action is at least questionable or even for which no claim to the capacity for autonomous action is made (such as fetuses and non-human animals). To complicate matters further, ‘dignity’ or ‘dignified conduct’



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has been used to characterise the standing or bearing of persons of a high social station, to describe worthy or noble as against demeaning or ignoble conduct, as well as circumstances that conform to ideas of what persons deserve or which are simply thought to be becoming to persons in general. Because these uses are not always carefully analysed and distinguished, this situation has provoked a sceptical reaction to the value of the concept of human dignity in bioethics. In general, sceptics, who include John Harris,1 have objected to dignity rhetoric, particularly where dignity is used to constrain autonomous action that affects only beings that do not have the capacity to act autonomously, on the grounds that it (or its use) is either: • hopelessly indeterminate/vague; or • a rhetorical gambit to end arguments, on the grounds that anything contrary to human dignity is self-evidently beyond the pale. But they have also objected to the use of ‘dignity’ to permit (or empower) self-harm on the grounds that nothing is added by appeals to dignity that cannot be achieved simply by using the discourse of autonomous action and capacity. In this chapter, I will indicate why I think that the concept of human dignity is important, indeed, essential for bioethics. I will, then, make some critical remarks about various ways in which dignity has been appealed to in order to constrain autonomous action for self-harm or action that affects only non-autonomous beings (‘dignity as constraint’ as I have elsewhere designated it2) and I will outline the particular conception of ‘dignity as empowerment’ that I advocate. Why is dignity an important notion? While the Preamble to the UDHR has it that human dignity is the basis of all fundamental rights and freedoms, it is possible to see it as more than this, as the basis of morality itself. More specifically, we might, and I think we should, as bioethicists, regard ‘dignity’ in ‘human dignity’ as designating the property that creatures must possess to be subjects of moral concern. In other words, the idea is that only creatures that have dignity in the requisite sense have a moral status, on the basis of which those who are capable of discharging duties have obligations to show them moral respect. If we do this, then, in the first instance at least, we will see competing discourses using dignity, not necessarily as a symptom of vagueness or indeterminacy in the notion, but as a reflection of different views of the nature of the property that confers moral status on those who have it (and, perhaps, behind this, different views of the nature of morality itself). This is not just an arbitrary stipulation. It represents what is surely the reality, which is apparent simply from considering the sorts of properties that philosophers have variously held to be necessary and sufficient for moral status, for it is clear that

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these differences account for much, if not all, of the different ways in which those who indulge in dignity discourse use the concept. The following are just some of the properties in question: • Simply being a living organism • Simply being human (biologically defined) (noting that some use ‘human’ in a more restrictive sense, more akin to ‘personhood’) • Sentience, the capacity to experience pain and pleasure • Self-consciousness or self-awareness, which is generally held to characterise personhood • A capacity to reason, which might, alternatively, be considered to characterise personhood (though the capacity to reason and self-consciousness are arguably correlative) • A capacity for practical reasoning, which might be said to characterise ‘agency’, which involves the capacity to pursue goals because one values them • Vulnerable agency or a vulnerable personhood, on the grounds that only vulnerable beings can meaningfully be subjects of moral concern • Membership of a community of (vulnerable) agents or (vulnerable) persons, on the grounds that morality only makes sense in an intersubjective context. Now, it is not self-evident which of these properties is the ‘correct’ one, or as we might now say, what dignity consists of. Thus, focusing on the matter in this way more or less demands that attention be paid to the justification of a particular viewpoint and of the wider approach to morality that underpins it. In what follows I will concentrate on some general difficulties I have with ‘dignity as constraint’, which are not tied to my personal philosophical position. I will then outline the conception of dignity that I myself advocate (as well as the reasons I have for adopting it). Conceptions of dignity as constraint ‘Dignity as constraint’ discourse, I have argued elsewhere, is deployed on three rather different bases.3 First, it is used by those who identify the possession of dignity in, e.g., ‘life’, ‘being biologically human’ or ‘mere sentience’, all of which have the consequence that beings who are not themselves capable of carrying out duties may be the direct beneficiaries of duties imposed on others. Second, it is used by those who, though they might require personhood or agency for dignity to be possessed and, indeed, characteristically, will regard being a rights-bearer and having duties as correlative, nevertheless do not consider that persons may do anything at all as long as they do not violate the more important rights of others. Characteristically, this school espouses the belief that agents owe perfect duties to themselves. This, in turn, may be grounded in a number of different ways, for example in:



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• Espousal of an interest theory of rights rather than the will theory • A religious teleology, according to which human life is a gift of God and has a set purpose • Orthodox Kantian thinking. The second of these is especially interesting, for it permits a ‘marriage’ between the location of dignity in rational agency and the idea that duties are owed to (and dignity possessed by) human beings who are at least apparently not rational agents (e.g. fetuses, those in a persistent vegetative state, etc.) on the grounds that living, potential rational agency, or past rational agency are all part of God’s purpose for humanity, just various stages of the teleological story that God has written.4 Thirdly, and finally, dignity is used by those of a communitarian persuasion, not as a fixed concept at all, but as one that is dependent on a community’s contingent self-image of conduct appropriate for a civilised society. One way of looking at this is to say that this school does not adopt a particular moral ontology (of which examples are the properties in the list in the preceding section). Rather, it propounds that any moral ontology is appropriate if it is embedded in a community’s self-image. In other words, a form of communitarian epistemological relativism grounds whatever property is to be identified as constituting dignity. In this school, the reasons why the community might adopt a particular moral ontology are largely irrelevant: the matter is simply settled by the fact that it adopts one. If this seems to contradict my comments that focus on dignity demands a justification for a moral ontology, then I suggest that this is not really so. In this case, at least, it still requires a justification for this form of relativism and (at least indirectly) this provides a justification for any attendant moral ontology. Problems with dignity as constraint I do not wish to deny that those who employ dignity, and, in particular those who employ it as constraint, are sometimes (perhaps more than those who employ it as empowerment) guilty of vagueness in their appeals or of a rhetoric that employs it more as a dogmatic closing down of argument rather than as a platform for rational discourse. However, this is not necessarily the case, and so I will concentrate on what I find problematic in the various sub-schools of this discourse. However, there is one argument for dignity as constraint that does not fall clearly into any of these schools, which must be commented on, simply because it is so prevalent. Kant’s formulation of the Categorical Imperative in the Formula of the End in Itself: ‘Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as and end’.5 This is frequently appealed to as a reason why it is contrary to human dignity to engage in a number of practices, such as preimplantation genetic diagnosis,

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or reproductive cloning, on the grounds that these practices involve instrumentalising the embryo (treating it as a means to the ends of others). This, however, involves a severe distortion of the Kantian principle. On the one hand, it ignores the fact that the prohibition is on treating those who are granted protection as means to the ends of others whilst at the same time not treating them as ends. The principle does not prohibit treating others as means to one’s own ends if at the same time one treats them in terms of their own ends. Were it to do so, it would be ridiculous, as it is almost impossible not to treat others as means to one’s own ends if one has any interaction with them at all. However, to this rejoinder, it might be objected that the problem is just that, the embryo is not treated in these practices in terms of its own ends, but merely as a means to the ends of others. However, this reveals the second distortion, which resides in failure to appreciate that the Kantian principle only applies to a subclass of humans, those who are persons (or more precisely, in Kant, ‘rational beings with a will’, which is to say, those who are ‘agents’, beings who pursue ends that they regard as reasons for their actions), and it is not at all apparent that embryos are persons (indeed, most would say that they clearly are not; though, concerning this, see further below). When dignity as constraint rests on the idea of perfect duties to oneself based on a deontological interest theory of rights, an obvious difficulty with this is that it essentially obliterates any distinction between rights and duties, for the fact that something is in my interest, in this view, not only entails that I have a right to pursue/protect this interest, but that I always, at the same time, have a perfect duty to do so. Some may be willing to accept this, but the point should still be made. When, as in Kant, perfect duties to self are coupled with the will-theory of rights, then the problem, as Kant himself appreciated, is that this seems to incur the contradiction that, on the one hand, a rights-bearer can always release others from duties not to harm the rights bearer (because that is the nature of rights under the will theory), yet the rights bearer cannot do this, because this is prohibited by the idea that persons/agents owe perfect duties to themselves in relation to the interests protected by what they have rights to. In order to show that the contradiction is only apparent, Kant appealed to a distinction between what he called ‘homo phaenomenon’ and ‘homo noumenon’.6 In essence, the purported resolution involves the idea that the being who holds rights and the being to whom duties are owed are not the same person. The problem with this, however, is that it rests on a metaphysical distinction that is very difficult to ground in Kantian theory (because the ‘phenomena-noumena’ distinction is essentially an epistemological one not an ontological one in Kant) let alone in other theories that do not share Kant’s epistemological premisses. That said, a similar move has also been made by Alan Gewirth,7 whose moral theory I accept (about which, see further below). However, in Gewirth, the person (or more precisely, the agent) is not split into a phenomenal and a noumenal agent, but (in alterna-



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tive models) into aspects of the agent, or the present and future agent, or into different capacities of the agent, which are then treated analogically as different agents. This, however, is not only artificial, but each move incurs specific difficulties. For example, in relation to the most plausible of these analogies, if my present self can be said to owe duties to my future selves (just as one person can owe duties to another, these duties creating perfect duties to my present self) then this implies that my present self can hold my past selves to account for actions committed by my past selves. But there is no way of doing this that does not involve punishing only what here purports to be the victim, namely, my present self.8 The difficulty with dignity as constraint when it rests on a religious teleology is obvious: it rests on belief in God/this teleology. To justify this framework, these beliefs must be justified. That is, of course, always the case with any theory. However, much of the discourse of this school is carried out without any attempt to see this aspect of the matter as central. In practice the discourse is a discourse of the converted speaking to the converted, which is engaged in as though all were members of the faith, which they are not. As far as the ‘communitarian’ school is concerned, its discourse suffers from what may be termed the problem of the ‘Royal We’. Dignity, we are told, and, indeed, ideas of right and wrong generally, rest on the perceptions of the community. But who and what constitutes the ‘community?’ Is it constituted simply by the views of a majority of the persons in a geographical location? Is it constituted by the views of the powerful (those who can impose their ideas)? Why cannot those who have different (deviant views) not simply claim that they belong to a different community? Of course, if they can, then ultimately it is the individual who defines the community, and if individuals are able to do this, the appeal to community is rendered either redundant or disingenuous. In any event, does not the appeal to recognition by the community as the arbiter of right and wrong, and the content of dignity, entail that to possess a right one must have recognition of being able to enjoy the benefits it confers rather than merely being justified in claiming that one ought to have these benefits even when, indeed, particularly when, one does not have recognition of them? If so, does this not make nonsense of the idea that there can be any rational critique in ethics, by, in the final analysis, identifying right with might? Such points are not completely decisive, nor are they meant to be. In the final analysis, how we view dignity must rest on a broader moral theory and this must be a justified theory. So, in the last section of this chapter, I shall outline my personal position on these matters, concentrating on how this involves an elucidation and defence of a particular conception of dignity as empowerment.

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According to Alan Gewirth, there is a supreme principle of morality, which, because all agents (those who voluntarily pursue purposes of their choosing, or who have the capacity and disposition to do so) must accept on pain of contradicting that they are agents, is also the supreme principle of practical reasoning in general.9 This principle, the Principle of Generic Consistency (PGC), states that all agents must act in accord with the generic rights of all agents, the generic rights being rights to generic conditions of action, which are conditions that are needful for any action (‘basic’ generic rights) or any general chances of successful action (‘non-subtractive’ and ‘additive’ generic rights), rights that are more needful for action trumping those that are less needful in case of conflict. If Gewirth is right, and I, at least, think that he is, that for agents not to accept the PGC is to contradict that they are agents,10 then the PGC has the kind of apodictic justification that Kant claimed for his ‘Categorical Imperative’ and, is indeed, the Categorical Imperative.11 The generic rights are, by the nature of Gewirth’s argument to the PGC, rights under the will theory of rights. This is because, at an intermediate step in his argument, Gewirth argues that agents must proactively value their having the generic conditions of action as instrumental to their purposes (whatever these might be), not that they must value the generic conditions for their own sakes. Consequently, agents do not have to value having the generic conditions relative to an acceptance of not being able to act (or relative to a wish not to be able to act). Hence, when Gewirth argues that it follows that agents must consider that they have rights to the generic conditions on his way to arguing that agents must consider that all agents have these rights, these must be rights not to have the generic conditions interfered with against the agent’s will (when the rights are ‘negative’) or to be assisted in securing the generic conditions when the agent is unable to do so unaided if the agent so wishes (when the rights are ‘positive’).12 Because Gewirth argues that it follows logically from the fact that agents contradict that they are agents if they do not consider that they have the generic rights that they must, further, consider that the reason why they have these rights is that they are agents, logical universalisation enables him to conclude that agents must consider that all agents have the generic rights. Being an agent is what agents must adduce as the material ground of the possession of the generic rights. Consequently, agency is the property that confers dignity on human beings who possess it. However, as I have argued elsewhere, it is, strictly speaking, vulnerable agency, not agency alone that is necessary (which is implicit in the idea that agents have generic needs).13 Furthermore, contrary to Gewirth’s own views, I have argued that agency is not merely sufficient for the generic rights, it is also necessary, and this is because the rights are rights under the will theory.14 This being the case, only agents can possess them because



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only agents can waive the benefits of having them as the will theory requires. Consequently, unlike Gewirth, who argues that non-agents possess the generic rights (and consequently, dignity) in part in proportion to how close they are to being agents,15 I have argued that non-agents do not possess any generic rights (or dignity).16 That said, it does not follow that fetuses, persons in a persistent vegetative state, non-human animals, and any other beings who do not appear to be agents, lack the generic rights or dignity. This is simply because we do not know for certain that they are not agents, and this is because agency (like sentience and being the subject of a life, or a person) is defined by the possession of certain inherently mental states that only particular agents can know for certain that they themselves possess. To be sure, this raises the possibility that particular agents might be able to avoid applying the PGC by denying that there are any agents in the world other than themselves. However, because the PGC is, ex hypothesi, categorically binding on agents and categorically enjoining agents to respect the generic rights of all agents, the PGC requires agents to treat all those who behave as though they are agents as agents. This is because to err in denying an agent the generic rights when one can treat the being in question as an agent is to violate the PGC, whereas to err in granting the generic rights to what is not an agent (but merely appears to be an agent) is not to violate the PGC. Correlatively, the PGC requires agents to treat all those who appear not to be agents as possible agents in proportion to the degree to which it is possible to treat them as agents or to imagine that they might be agents who simply cannot express their agency. While I do not have the space here to spell out the details of this, it should at least be clear that it follows that agents will incur duties to non-apparent agents as possible agents or possible holders of dignity in proportion to the probability that they are agents.17 But there is more to the dignity story than this. As Kant also believed, I have argued that belief in a categorical imperative entails the idea of a summum bonum, a state of affairs in which all moral wrongs are righted, and that this is only possible if a perfectly good, omnipotent God exists and all agents are immortal.18 Also, like Kant,19 I consider that we cannot know (nor could we ever know) whether or not God exists or we are immortal. Furthermore, I have argued that belief in God is actually at odds with the idea of moral action and moral responsibility20 (because, as Leibniz held,21 it entails the idea that the world we live in is the best of all possible worlds). Consequently, I have argued that any moral theory that is premised on a categorical imperative requires a radical agnosticism characterised by hope (but not belief) that God exists and for immortality.22 Correlative to this, it follows that all agents have duties to strive to attain such a standpoint towards their existence. Because, further, I maintain that such a stance is entailed by self-conscious reflection on the whole nexus of conditions that characterise being the subject and object of moral prescriptions, human dignity at root, as the ground not only of rights and fundamental

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freedoms, but of morality itself, is to be seen as located in human existence being grounded in these conditions coupled with the ability to reflect on them. From this, I have argued, it follows that dignified conduct (as a construct connected with human dignity as the ground of human rights) is to be regarded as conduct that supports and is consistent with radical agnosticism.23 These are profound claims and much of this is controversial. However, even if the details and precise path of my reasoning are disputed, I submit, in extension of what I stated earlier, that the reason why dignity is an important notion for bioethics is precisely because it enjoins us to consider issues of the kind I have touched on here. Notes  1 D. Birnbacher, ‘Do Modern Reproductive Technologies Violate Human Dignity?’, in E. Hildt and D. Mieth (eds.) In Vitro Fertilisation in the 1990s (Aldershot: Ashgate, 1998), pp. 325–33. J. Harris, Clones, Genes, and Immortality: Ethics and the Genetic Revolution (Oxford: Oxford University Press, 1998), p. 31.   2 See D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2001), pp. 29–68.   3 See Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw.   4 See, e.g., J. Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’, Law Quarterly Review, 113 (1997), pp. 481–503, especially p. 483.  5 Immanuel Kant, Groundwork of the Metaphysics of Morals (1785), in H.J. Paton (ed.) The Moral Law (London: Hutchinson, 1948), p. 91.  6 See Immanuel Kant, The Metaphysics of Morals (1797), trans. and ed. M. Gregor (Cambridge: Cambridge University Press, 1991), p. 214.   7 A. Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978), pp. 336–7.  8 See further Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw, pp. 106–10.   9 See Gewirth, Reason and Morality. 10 See D. Beyleveld, The Dialectical Necessity of Morality: An Analysis and Defense of Alan Gewirth’s Argument to the Principle of Generic Consistency (Chicago: University of Chicago Press, 1991). 11 See D. Beyleveld, ‘Gewirth and Kant on Justifying the Supreme Principle of Morality’, in M. Boylan (ed.) Gewirth Critical Essays on Action, Rationality and Community (New York: Rowman and Littlefield, 1999), pp. 97–117 and Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw pp. 87–110. 12 See Beyleveld, The Dialectical Necessity of Morality, p. 33. 13 Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw, p. 112. 14 See, e.g. Ibid., pp. 118–19. 15 See Gewirth, Reason and Morality, p. 121. 16 See, e.g., Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw p. 119.



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17 See, e.g Ibid. pp. 119–34. See also, D. Beyleveld and S. Pattinson, ‘Defending Moral Precaution as a Solution to the Problem of Other Minds: A Reply to Holm and Coggon’, Ratio Juris 23:2 (2010), pp. 258–73. 18 See Immanuel Kant, Critique of Practical Reason (1788) trans. L.W. Beck (New York: Liberal Arts Press, 1956), pp. 126–36; Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw, pp. 134–6. 19 See Immanuel Kant, Critique of Pure Reason (1787), trans. J.M.D Meiklejohn (London: Dent Dutton 1934). 20 See Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw, pp. 136–8. 21 Wilhelm Gottfried Leibniz, Philosophical Writings, trans. M. Morris (London: Dent Dutton, 1934), p. 27. 22 See Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw p. 137. See further, D. Beyleveld, ‘Hope and Belief’, in J. Jenkins and E. Sullivan (eds.) Philosophy of Mind (New York: Nova Science Publishers Inc. 2012), pp. 1–36. 23 Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw, pp. 138–41.

10

Why we should save the anthropocentric person Simon Woods

Moral foundations In order to ‘do’ ethics we need to have an account of the kinds of thing that matter, morally speaking. This is surely the preeminent question for moral philosophers, and John Harris’s introduction to medical ethics, The Value of Life (1985)1 (henceforth TVL) is no exception, since it begins by addressing the very point. Looking back over the thirty odd years in which the book has been around it is clear that the approach was fresh, provocative, broadly coherent and had much to say about contemporary issues at the same time as horizon scanning for the burgeoning concerns related to developments in genetics, biotechnology and reproductive therapies. The book, or rather John Harris’s approach, did much to forge virgin ground for the then comparatively new field of medical ethics and for bioethics more broadly. Since then John Harris has continued to address the agenda first set out in TVL with an often controversial take on contemporary issues within medicine and with a forthright and forward facing approach to the boundary breaking biosciences. However the one matter that has not been revisited to any satisfaction is the underpinning and more theoretical aspect of the Harris position, the concept of the person which lies beneath his account of the ‘valuable life’. In this chapter I will set out what I understand to be Harris’s take on the ‘person’ and then turn to some concerns about the approach, not with ‘knock down’ arguments but more as commentary and to indicate points of irritation, itches where the urge to scratch remains unsatisfied. Space does not permit a robust alternative view, but I shall give some indication of where and why there is still important work to be done. A main point I will argue is for the retention of an anthropomorphic account of the person. Many philosophical approaches to ethics are foundationalist, seeking to find the ground, the first premise, on which the edifice can be constructed. John Harris’s approach is no exception and the foundation for his work is the concept of the person. Harris’s notion of the person is not to be confused with the ordinary usage of the term; in his work it is used in a deliberately



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stipulative and technical way. For Harris ‘person’ has a particular meaning and so I shall adopt the practice of italicising the term in this essay whenever I use the term in Harris’s sense as defined in the following passage: In identifying the things that make human life valuable we will be pointing to the features that would make the existence of any being who possessed them valuable. It is important to have a word for such beings which is not simply anthropocentric or species-specific. I shall use the term person to stand for any being who has what it takes to be valuable in the sense described, whatever they are otherwise like.2

In this chapter I shall develop a number of thoughts to explore why Harris’s stipulation of person is both abstract and idealised to the point that it excludes what we have reason to consider as falling within our moral concern. The claims I will make about the limitations of Harris’s work could be (and have been) applied to other proponents of a certain kind of philosophical bioethics3 who all claim rather too much for what such approaches can achieve. Despite protestations that margins of doubt will be respected, and cautionary erring will be adjusted for, the net result of Harris’s arguments is still pretty precise in its implications, claiming to resolve or dissolve certain moral problems with a precision that cannot be sustained. The force of his arguments also carries the implication that they should be followed through to their logical end, which often leaves one faced with conclusions that are too far out of line with everyday morality. In addition I shall argue that the ‘self-valuing’ criterion is just not plausible without some further and more subtly complex account of how a person achieves that status. Harris’s theory of the person The foundationalist approach sees the starting task of a moral theory as delineating those things that have moral worth, or to use Harris’s term, those things that have value, from those that do not. Unless we are able to make this basic discrimination ethics is impossible. However, this is not the whole picture. For ethics to ‘get going’, so to speak, there needs to be at least two kinds of entity. First, moral agents, agents with the capacity for volitional action such that it makes sense to talk of their having responsibility for their actions; to judge them worthy of praise or blame. In addition there must be entities that have moral worth, that have the right to be cared about and considered in the deliberations of moral agents. Moral agents of course have moral worth but this does not exhaust the moral domain since there are many entities that are not moral agents yet they do merit the care and consideration of moral agents. The point can be developed in a prosaic way by considering the difference between the act of kicking a stone and the act of kicking a cat. It seems reasonable to say that the only harm done in kicking a stone is potentially to the kicker’s toe since one conception of whether a thing can be harmed or not is linked to whether that thing is both

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alive and is sentient. A stone, being non-sentient, is not the sort of thing that can be hurt, but what of a cat? Presuming that the kick causes the cat pain then the cat is hurt but we can only begin to talk of pains inflicted as wrongs when the kicker is the sort of thing that can do wrong. A judgement regarding the cat’s status will rest on its capacity to both feel pain and to be wronged. An evaluation of the kick will rest on the capacity of the kicker both to inflict pain and do wrong. Ethics requires that there exist entities capable of doing wrong and plausibly, things that can be wronged. Therefore a necessary condition for ethics, and hence for morality of any kind is that there are beings with the capacity for agency, that is with the capacity for acting on the basis of reasons, since agency of this kind is necessary before we can talk of moral responsibility. I would also add an additional point, since my prosaic example is itself rather abstract. To be a moral agent is not to have certain kinds of ‘internal’ mental states, since the stuff of morals is not internal but social. So I would add that we can only make sense of a moral agent from within a moral community, and moreover the human community is just such an example. While it may seem reasonable to claim that the highest moral worth attaches to moral agents, the concept of the moral agent does not exhaust the category of things worthy of moral concern. Though I agree with Harris that at least some human beings are also moral agents, where we differ is that for Harris not all human beings justify our moral concern and for me they do. John Harris wrote TVL shortly after the establishment of the Committee of Inquiry into Human Fertilisation and Embryology, the so-called ‘Warnock Committee’.4 This government committee was commissioned to inquire into the ethical implications of artificial reproduction and related research. Discussions inevitably focused on the moral status of the human embryo, and within these, advocates of traditional moral positions, such as the Catholic Church, inevitably defended the status of the embryo as inviolable. However the issues were also aired in more secular terms and Mary Warnock, philosopher and chair of the committee argued that: ‘Human’ is a biological term, and simply distinguishes humans from other animals. And it seems to me of paramount importance that we, being human should recognise that there are ways of treating our fellow humans that are right and other ways that are wrong. This is a moral principle, the very principle, in fact, upon which the demand for rights depends.5

By this Warnock implies that by being human we necessarily partake of a moral domain but the thought is underdeveloped; and Harris is right to pick up on it. As an acknowledged supporter of in vitro fertilisation and embryo research,6 Harris rejects this view and denies that there is any necessary connection between being human and having moral status. Harris attacks the notion of resemblance, denying the moral significance of resemblance at the level of biology (Warnock’s claim) or because of resemblance in appearance as, for example, argued by the developmental biologist Clifford Grobstein.



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Grobstein claims that the threshold of moral significance for the developing embryo is when it becomes ‘recognizable as human’,7 conveniently, as Harris implies, at the end of the first trimester, the traditional biological transition point of embryo to fetus.8 Harris dismisses these biological approaches as ‘species prejudice, arbitrary but understandable’.9 However Harris does endorse resemblance of another kind: that things of moral status resemble one another in the possession of certain kinds of intellectual property. So for Harris it does not matter what a person looks like so long as they are capable of instantiating certain mental properties, including the property of self-valuing. However contra Harris, I would suggest that the moral significance of the human, the anthropocentric criterion, ought to be treated a little more generously as an, albeit imperfect, attempt to struggle with a profound ethical problem. One can appreciate the temptation to seek a secular ground for the moral status of the embryo in biological terms as there was a need to begin to deal with the ethical concerns that embryo research raised at the time of the Warnock Committee; after all the embryo was, and remains, an ethically contested entity. Of course human embryos are human just as the sperm and eggs from which they are created are human. However, as Harris points out, to chase a biological basis for moral status is to become involved in a fruitless journey ever further upstream to the source of the gametes and beyond; perhaps inevitably, and absurdly, to include every cell of the human body.10 However a quite different perspective emerges if one considers that the concept of a human being is not merely a biological term but rather entails an ontological claim about moral status. What Warnock seemed to be grasping for is the idea that being human is a mark of a certain kind of community membership. With this thought in mind it would seem very plausible that the creation of a human embryo with the capacity to become a child might plausibly be taken to be the first step towards entry into the human community. In making these points I can immediately see how vulnerable they are to the kinds of critique that Harris has so eloquently advanced. At this point I shall say nothing more than to acknowledge that the idea of the human community as a moral domain is an intuitive claim, and to offer by way of support for its plausibility the observation that we know quite distinctly what we mean when we appeal to another’s humanity. To appeal to another’s humanity is not an appeal to their biology but to their humaneness, including such moral qualities as compassion, kindness and concern. Conversely; when we describe someone as ‘inhumane’ we are not making an observation about their biological makeup but pointing to a moral deficit when certain moral qualities are expected. Admittedly we are still left with the problem as to whether mapping ‘human being’ to everything that is biologically human creates far too rich an ontology; but equally, and to my mind of greater concern, is Harris’s preferred ‘propositional’ criterion of moral status which yields an ontology that is far too inclusive in one sense, yet far too lean, in another sense. To explain what I mean by the ‘propositional criterion’ we need to consider Harris’s claims in more detail.

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Harris’s test for persons is developed in two parts. First he quotes with approval Locke’s definition of person: ‘to find wherein personal identity consists, we must consider what person stands for; which, I think, is a thinking intelligent Being, that has reason and reflection, and can consider it self as it self, the same thinking thing in different times and places.’11 Harris approves of Locke’s definition of person because for Harris, whilst some human beings are persons, no human is a person in virtue of their being biologically human, a point that is also implied in Locke’s definition. One need only be a ‘thinking intelligent Being’ no matter how that is instantiated. Harris also approves of the flexibility of Locke’s account. Since Locke’s criteria are species non-specific they are compatible with the possibility of non-human persons. To go along with a popular science-fiction fantasy, the as-yet-to-be proven existence of extra-terrestrials may prove to be both alien creatures and alien persons. Closer to home, Locke’s criteria entertain the possibility of terrestrial non-human persons, pursuing another popular idea which sees potential candidates amongst certain favoured species of primate and sea mammal. Furthermore, given Locke’s emphasis on the abstract properties of thinking and intelligence it is possible, in principle, that a person could be neither human nor biological and could conceivably be a complex machine.12 This marks one of the more significant levels of abstraction and is demonstrative of how Locke’s (and Harris’s) approach not only allows the person to be dis-embodied but also abstracted from any kind of social context. It is following this line of reasoning that I would suggest that Harris’s ontology of the person is too inclusive. In addition to Locke’s intelligent thinker Harris adds the valuing criterion. The valuing criterion consists of the capacity to value one’s life: that is, to be in a position so that one is capable of forming a judgement as to the goodness or badness of one’s existence. This is what I call the ‘propositional criterion’, that a person must be capable of holding certain propositions of a self-valuing kind, in their mind. So even though a would-be suicide may hold their life in negative value, they are no less a person, since to value negatively is to nevertheless have passed the requisite threshold. So according to Harris, the pre-eminent moral being is the full-blown person, a being that has rationality, self-consciousness, an awareness of self-identity over time and the capacity to value its own life. This quickly developed proposal from Harris is interesting because it is an example of a radically underdeveloped idea that actually poses some problems for the general thesis. The problem is this: that without some quite detailed and further elaboration from Harris the idea that a thinking intelligent being does everything required to earn its moral status seems deeply problematic, if not implausible. The problem can be illustrated in a rather tongue-incheek way with reference to the popular British science fiction television series ‘Doctor Who’, which features the Doctor’s infamous enemy the



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Daleks.13 The Daleks are an extra-terrestrial race of powerful mutants, bent on the complete subjugation of the universe, and their path to domination is characterised by an utter lack of pity, compassion or remorse for their cruel actions in the attempt to rid the Universe of all non-Dalek life. The point of this example is to show that though we have in the Dalek an extra-terrestrial example of a thinking intelligent being that may well meet the criteria for status as a person, this is not sufficient to show that we are bound to respond to them as creatures worthy of the same ‘concern, respect and protection’14 as we are to the rest of humanity. I do not think that there would be a dilemma, as Harris puts it, whether to have this particular alien creature for dinner in one sense or in the other sense of ‘have’; we just would not want to be anywhere near them! Of course Harris might respond that the Daleks and their ruthlessness are no different in kind from the common moral problems we face with other human beings who display utter contempt for their fellow humans on the mere and arbitrary basis of race, creed or colour. History and indeed contemporary events can furnish too many examples of bad people, but one might argue that they can be held to account and treated as equals under the law. However this is not the point I am making here with regard to alien creatures like the Daleks. The point can be better illustrated by a rather cryptic remark made by the philosopher Wittgenstein who states: ‘If a lion could talk we could not understand him’.15 Wittgenstein’s remark is part of his general critique of theories about meaning and language, but since meaning and language are part of a culture of ‘use’, deeply embedded, rule-governed behaviours it is also applicable to the human culture of values and morality. At an earlier point in the same book he says: Suppose you came as an explorer into an unknown country with a language quite strange to you. In what circumstances would you say that the people there gave orders, understood them, obeyed them, rebelled against them and so on? The common behaviour of mankind is the system of reference by means of which we interpret an unknown language.16

The point that Wittgenstein is making is that the very possibility of making sense of the unknown language, the possibility of achieving a translation, hinges upon the fact that humanity shares a ‘form of life’, a common grounding in shared normative ideals without which we cannot begin to make sense of the alien life whether it be Daleks or lions. One could of course imagine an anthropologist spending time observing Dalek culture and offering an account of its richness and variety. What would we need to learn about their culture in order to be persuaded that there was the possibility of a moral dialogue with them, of persuading them that they ought to respect us as we aspire to respect each other? One of the problems with the account of moral worth implied by the arguments set out in TVL is that they fail to acknowledge sufficiently that whilst some humans may be judged as lacking the requisite capacities to be

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moral agents it does not follow that humans who lack the capacity of moral agency also lack moral worth. The specific implications ought to be obvious but I will spell these out with regard to issues at the beginning of life. Harris’s book was published at a time of wide debate over the ethics of IVF and embryo research. The person argument has very specific implications for IVF, embryo research, and for abortion and neonatal care also. Harris writes, that on the basis of his argument: the prospect of concluding that the embryo shares the rights and protections of normal adult human beings is vanishingly small. It will also be a consequence of the arguments developed here that since neonates and very young children are not capable of wishing to live, it will be no more wrong to kill them, side effects apart, than to kill other creatures of comparable capacities like dogs and sheep.17

It is important to note here that Harris does not argue that it will be no wrong at all to kill neonates or very young children but rather, and this by implication not his own elaboration, that it would be a very minimal wrong. Harris offers few grounds for understanding the nature of the wrong, which seems remarkable considering the implications of the claim – perhaps the wrong of inflicting pain on a sentient creature or the wrong of thwarting the preferences of doting parents? But since he is suggesting a shocking and quite repulsive conclusion that neonates and young children may be killed almost with impunity it might be expected that he would take some time to elaborate on the point. What he does offer is a lowering of the threshold of ‘significance’ within a margin of safety: The problem is that we not only want reliable criteria for personhood, but we want detectable evidence of personhood. Here matters are not so simple, and we should err on the side of caution and assume, in the case of the sorts of creatures that we know to be normally capable of developing self consciousness, namely human creatures, that they are persons at some safe time prior to the manifestation of the symptoms of personhood. I do not have a set view as to when an appropriate point would be, but I do not think it plausible to regard the emerging human individual, for example, as possessing the relevant capacities at any time while in utero or during the neonatal period.18

I find this ‘margin of error’ clause rather perplexing here without some more concrete account of what might count as ‘detectable evidence’. Elsewhere Harris is clear that a person must be capable of holding certain propositions about themselves and ideally giving evidence to this through spoken language, what I have called the ‘propositional criterion’. I would suggest that this is a failure of Harris to fulfill a basic requirement of applied moral philosophy; to engage in reflective equilibrium and moderate the theoretical implications of adopting a philosophical approach in the light of established moral intuitions. This I would suggest is an example of Harris’s too lean an ontology, excluding what we have good reason to presume is within the moral domain.



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The development of medical technologies deployed at the beginning of human life has made the moral landscape more and not less complex. Harris’s persons approach has potential implications for policy and practice that few would tolerate. The smiling and frowning fetus now so dramatically revealed by the latest 4D ultrasound for example provides an insight into the life of the fetus that is morally challenging in a similar way that research into neonatal pain has been. What we see suggests that the fetus, in its expressions of satisfaction and discomfort, already possesses the basis of its participation in the moral community. For Harris this is no doubt anthropocentricism of the worst kind. However I do not believe that this response is merely the ‘soggy sentimentality classically evoked by proximity to dependent sentient creatures, like puppies’,19 the fact that medical technology, and micro-surgical techniques are increasingly applied to the fetus in utero means that we do recognise that the fetus is a patient and not merely a temporary organ of the woman within whose body it is growing. Turning briefly to Harris’s critique of the moral status of the embryo I want to explore why we might also be reluctant to follow Harris’s arguments to their logical conclusion in this context. Here I would venture to claim that Harris is insufficiently aware of, or merely reluctant to consider what Eva Kittay calls the ‘ethics of philosophizing’.20 What Kittay means by this is the failure to consider the full practical implications of philosophical theorising. Perhaps I am being too harsh on Harris here; he does seem to be aware of the potential harm of treating neonates and young children as nonpersons though it seems only a begrudging nod to wider human sensibilities. Harris is generally sanguine about the moral implications of his account of the person. He believes we ought to make the shift from the anthropocentric person to the abstracted person and in doing so be relieved of the burden of some seemingly profound moral problems. However the growing body of empirical evidence regarding the social and ethical aspects of reproductive and regenerative medicine research shows that the issues are complex and that genuine moral concern will not be alleviated by an abstract account of personhood. McLeod and Baylis,21 Haimes and Taylor and others have shown that women who face the challenging decisions around artificial reproductive therapy (ART), and more recently the close connection ART has with regenerative medicine research, walk a complex moral path. The researcher de Lacey comments that the ‘process of determining an outcome for frozen embryos is a complex human experience, the depth of which has not yet been fully described’.22 The dilemmas these women face are often associated with the choices they have or are about to make with respect to determining the fate of one or more of their eggs or embryos. The women who seek ART and at the same time agree to participate in research are made fully cognisant of the implications for the embryos; specifically that not all embryos will be given a chance of life. However this does not mean that they are unconcerned as to the fate of those embryos.

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Agreeing to donate an embryo, or even an egg, to research means that one potential source of a viable fetus, and potentially a child, is denied them. Haimes and Taylor’s interviews with women have shown that they are often pre-occupied with what is referred to as the ‘third embryo’,23 the good embryo that was not implanted because it was donated to research. Haimes quite nicely captures the multiple demands made of women in this context as the feat of ‘juggling on a roller-coaster’.24 The concern that women express for the fate of the ‘third embryo’ arises because they do not see it merely as ‘spare’ tissue but as an entity that has already taken the first step into the moral community; an entity with a certain kind of potentiality. Space does not permit a more detailed analysis of the contribution that this important empirical work is making to our understanding of the complex ethical issues in the context of ART, embryo selection, storage and donation. It does indicate the need for ethical analysis to be empirically informed, nuanced and subtle. Harris is of course dismissive of the concept of potentiality and has argued on many occasions that because a thing merely has the potential to become X this is not a reason for treating it as though it already were X. However I think this overstates how potentiality may be understood in these contexts. I certainly agree with Harris that it is wrong to treat an embryo with all the rights and respect owed to fully fledged human beings. However this does not mean that no consideration is owed to the embryo for the potentiality it does have. Women undergoing ART, as Haimes’s ‘juggling’ metaphor captures, are constantly trying to reconcile the different decisions they do make with their desire to maximise the chances of at least one of those embryos developing into a child. I would argue that Harris also recognises that the potential of an embryo does have some moral pull, since he sets out the basic arguments in TVL, developed much more in his later work, that it would be morally wrong to waste the potential an embryo has to be converted into a good from which others may benefit. What he has in mind are the potential benefits to others arising from what is now termed ‘regenerative medicine’, the application of embryonic stem-cells, though it must be remembered that at the time of writing the potential for any actual benefit to an individual was highly theoretical. It might be argued that what Harris means here is that the moral pull of the embryo’s potential is derived from the potential benefit it could have for a fully fledged human recipient of stem-cell therapy. However another of Harris’s arguments makes this less clear. Considering the issue of enhancement, first outlined in TVL, and also developed further in later work, he argues that if we are to procreate then there is a moral obligation to produce the best children possible. One route to this end certainly includes the genetic selection of embryos but also the genetic modification of embryos, where this might lead to an enhancement of certain valued traits in the resulting human being. It seems reasonable to ask to what is this obligation owed? To the future person certainly, but that future person is merely the



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result of the potential that the embryo now has. Our moral obligation to treat the embryo in certain ways and not in others is because of the potential the embryo has to become the future ‘enhanced’ person. While recognising the potentiality of an embryo does not commit us to treating the embryo as if it were a full human being it is surely, even in Harris’s terms, owed some form of moral consideration? Valuing and attachment The central thesis of TVL is that ethics revolves around the concept of the person, a class of entities of which only some human beings are members. The defining feature of a person is a capacity for self-valuing. Hence a morally significant entity is that which is, minimally, capable of holding a value position with regard to itself. Harris tells us: ‘I believe those rather simple, even formal features of what it takes to be a person – that persons are beings capable of valuing their own lives – can tell us a good deal about what it is to treat some-one as a person’.25 It is a frustrating feature of TVL that Harris gives no account of how such a valuing individual evolves. I believe that there are accounts of how a human being gains a foothold within the moral community which are necessarily embodied and human. It is impossible to develop these ideas in any detail here. A sense of how a self-valuer evolves can be gained by reflecting on human development. A feature of human offspring is their prolonged dependency as they develop their intellectual and communicative capacities. That adults are usually enchanted by the helplessness of a baby is no doubt an evolutionary trait necessary for survival. But the nurturing of a child is also a time of rich reciprocal communication with much being expressed behaviourally and non-verbally. We have certainly not exhausted all there is to know about this aspect of human life. To ignore the context in which individuals evolve and are nurtured into adulthood is to ignore an important aspect of human moral evolution. When Wittgenstein states: ‘the human face is the best picture of the human soul’26 I take him not to be making a theological claim but rather saying that the human face, and for that matter the human body, is capable of showing, through its demeanour and through facial expression, spontaneously recognised by others, a recognition that is partly constitutive of identity. In claiming that it is only in virtue of being a self-valuer that we are able to recognise the value of others, Harris reverses the direction of the relationship between the other and the self, a point noted by Adam Smith: Were it possible that a human creature could grow up in some solitary place without any communication with his own species, he could no more think of his character, of the propriety or demit of his sentiments and conduct, of the beauty or deformity of his mind, than of the beauty of his own face … Bring

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him into society and he is immediately provided with the mirror which he wanted before.27

Smith is cited by Laurence Thomas, whose brief discussion of moral psychology offers an account of the evolution of the self-valuer in the context of human development.28 Thomas claims that it is in the context of human parental nurturing that the individual develops a sense of both self-worth and the worth of others: what is involved in bringing it about that a child has a sense of intrinsic selfworth is having the experience of being treated in the appropriate way by those who themselves have worth, and so have regard for themselves. From the moral point of view, the intrinsic self-worth that parental love bestows upon the child is what underwrites the child’s sense of how he or she should be treated by others.29

Of course I do not wish to claim too much on the basis of what can only be discussed briefly here. I merely suggest that the experience of being valued and hence a sense of self-value is quite plausibly prior to the linguistic abilities needed to conceptualise and communicate this status, the basis from which we will stake our claims and make our moral arguments. By comparison to this richer anthropocentric account Harris’s person appears as quite a thin shade. I suggest that something like the Thomas account comes nearer to the truth of the matter about the background conditions from which a selfvaluer evolves. It also offers a picture which is coherent with the idea that to be human is to be part of a moral community. Harris’s person, as I have argued, is abstract, unencumbered by the ties of a body, of relations with others within a human community. I do not wish to make too much of a possible mind/body dualist reading of Harris but he severely underestimates the embodied nature of the person. I suggest that ‘person’ is necessarily the embodied human person. Wittgenstein’s remark suggests that the body is not merely a contingent carrier of the person but shows the person. To see a smile, a wince, a frown in the face of another is to see their satisfaction or discomfort. The expressive and embodied individual is the starting point for moral significance. The conceptualisation of the person as embodied is a familiar one in phenomenology. Emmanuel Levinas’s ethics reflects a central interest of phenomenology – the particular salience of encountering another person, what Levinas calls the ‘Other’.30 For Levinas the most salient aspect of the experience of the ‘Other’ is the face of the Other, since it is the face of the Other which intrudes upon one’s own being with a moral force. For Levinas the Other is an intrusion into one’s own being, experienced not as a presence or an object of knowledge but as a moral demand not to harm, a moral obligation. The Levinas ‘face’ is not a particular face but an abstraction. The face is to be understood as a challenge, it is the vulnerability of the Other



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that undermines one’s own ambitions and ends because it presents us with an obligation, a duty. The proximity of the other is the face’s meaning, […] Prior to any particular expression and beneath all particular expressions, there is nakedness and destitution of expression as such, that is to say extreme exposure, defencelessness, vulnerability itself. This extreme exposure – prior to any human aim – is like a shot at point blank range.31

What seems apposite to the present discussion is the idea that recognising the vulnerability of another is also central to human moral experience. For Harris an individual only gains intrinsic value once it can assert its ‘rights and interests’ (ideally) through spoken propositions. I am a gradualist, a position rejected by Harris because personhood for Harris is a ‘threshold concept’ and ‘proximity to the threshold is unimportant compared with the importance of crossing it’.32 However what I hope I have at least introduced is that Harris’s account of the person is too thinly drawn, too abstract and too remote from the human domain. Concluding thoughts We should be open-minded to the possibility that some as yet ­un-encountered non-humans might also be moral agents. This seems most feasible in the context of entities such as the ‘higher’ mammals that live in close and nurturing family groups. However despite the fascinating observations made of chimpanzees, and elephants, and various sea-mammals I am unconvinced that we have discovered any strong candidates for moral agents within the (non-human) animal kingdom encountered thus far. What this emphatically does not show is that there is reason to disregard the welfare and interests of non-human animals. We should be kind to puppies, but Daniel and his lion notwithstanding, unless we can discover some deeply shared moral reciprocity between humans and other ‘beings’ then we, human beings, will remain the only moral agents, and as I would prefer, the only persons. Notes  1 J. Harris, The Value of Life: An Introduction to Medical Ethics (London: Routledge and Kegan Paul, 1985).  2 Ibid., p. 9.   3 P. Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics (New York: St Martin’s Press, 1994). M. Tooley, Abortion and Infanticide (New York: Oxford University Press, 1984). J. McMahan, The Ethics of Killing: Problems at the Margins of Life (Oxford: Oxford University Press, 2003).   4 Department of Health & Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (London: HMSO, 1984).

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  5 M. Warnock, ‘In Vitro Fertilisation: The Ethical Issues (II)’, The Philosophical Quarterly, 33:132 (1983), pp. 238–49, p. 241.   6 See for example: J. Harris, ‘In Vitro Fertilisation: The Ethical Issues (I)’, The Philosophical Quarterly, 33:132 (1983), pp. 217–37; J. Harris, ‘The Concept of the Person and the Value of Life’, Kennedy Institute of Ethics Journal, 9:4 (1999), pp. 293–308.  7 C. Grobstein, From Chance to Purpose (London: Addison Wesley, 1981) p. 89.   8 Though now the term ‘embryo’ has undergone further re-definition and refers exclusively to the pre-implantation embryo less than 14 days old.   9 Harris, ‘In Vitro Fertilisation’, p. 224. 10 K. Devolder and C.M. Ward, ‘Rescuing Human Embryonic Stem Cell Research: The Possibility of Embryo Reconstitution after Stem Cell Derivation’, Metaphilosophy, 38:2–3 (2007), pp. 245–63. 11 John Locke, An Essay Concerning Human Understanding (London: Everyman, 1976), p. 162. 12 Harris, ‘The Concept of the Person and the Value of Life’, p. 303. 13 Daleks were conceived by science-fiction writer Terry Nation and first appeared in the Doctor Who series in 1963 on BBC T.V. 14 Harris, The Value of Life, p. 9 15 Ludwig Wittgenstein, Philosophical Investigations trans. G.E.M. Anscombe (Oxford: Basil Blackwell, 1958), p. 233. 16 Ibid. 17 Harris, ‘In Vitro Fertilisation’, p. 226. 18 Harris, ‘The Concept of the Person and the Value of Life’, pp. 304–5. 19 Harris, The Value of Life, p. 13. 20 E. Kittay, ‘Ideal Theory Bioethics and Cognitive Disabilities’, in H. Lindemann, M. Verlerk, and M. Urban Walker (eds.) Naturalised Bioethics (Cambridge: Cambridge University Press, 2009) pp. 218–37. 21 C. McLeod and F. Baylis. ‘Donating Fresh Versus Frozen Embryos to Stem Cell Research: In Whose Interests?’, Bioethics, 21 (2007), pp. 465–77. E. Haimes and K. Taylor, ‘Researching the Relationships Between Tissue Providers, Clinicians, and Stem Cell Scientists’ Cell Stem Cell, 8:6 (2011), pp. 613–15. 22 S. de Lacey. ‘Decisions for the Fate of Frozen Embryos’, Human Reproduction 22 (2007) 1751–8, p. 1752. 23 E. Haimes and K. Taylor, ‘The Contributions of Empirical Evidence to SocioEthical Debates on Fresh Embryo Donation for Human Embryonic Stem Cell Research’, Bioethics, 25:6 (2011), pp. 334–41. 24 E. Haimes, ‘Juggling on a Rollercoaster? Gains, Loss and Uncertainties in IVF Patients’ Accounts of Volunteering for a U.K. “Egg Sharing for Research” Scheme’, Social Science and Medicine, 86 (2013), 45–51. 25 Harris, The Value of Life, p. 16. 26 Ludwig Wittgenstein, Philosophical Investigations, II.iv trans. G.E.M. Anscombe (Oxford: Basil Blackwell, 1958), 178. 27 A. Smith, A Theory of Moral Sentiments (Indianapolis: Liberty Classics, 1976), III.i.3. 28 L. Thomas, ‘Moral Psychology’, in H. LaFollette (ed.) The Blackwell Guide to Ethical Theory (Oxford: Blackwell, 2000), pp. 149–62. 29 Ibid., p. 152.



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30 Emmanuel Levinas, ‘Ethics as First Philosophy’, in S. Hand (ed.) The Levinas Reader (Oxford: Blackwell Publications, 1989), pp. 75–87. 31 Ibid. p. 83. 32 Harris, ‘The Concept of the Person and the Value of Life’, p. 300.

Part III

From ethics to policy and practice

11

Why the reasonable man is not always right? Margaret Brazier

Introduction The aspiring lawyer makes the acquaintance of the ‘reasonable man’ early in her or his student days.1 He often still remains (linguistically at least) stubbornly male. Winfield said this: ‘Despite the inveterate use of the masculine gender, there is no doubt that the personification includes the reasonable woman in the sense that the abstraction is not intended to embody peculiarly masculine values or patterns of behaviour’.2 The latest edition of Winfield and Jolowicz concedes that ‘no doubt “reasonable person” is gradually becoming the preferred expression’.3 Yet the reasonable man persists in Clerk and Lindsell on Torts4 and popular usage. Street on Torts speaks of ‘a hypothetical reasonable person’5 perhaps tacitly conceding that such a purely rational creature does not exist? Reasonable man or reasonable person, it is sometimes difficult to know whether this ‘reasonable being’ is simply related to the irritating ‘officious bystander’6 or is, in truth, his twin and clone. On other occasions, the two appear to be polar opposites. Years after this law student became a legal academic she met that most ‘reasonable person’, Professor John Harris. I will assume that Harris would agree that he meets his own criteria for personhood. He is without doubt the most stimulating of colleagues, a brilliant philosopher, and the kindest of men. I owe him an immense debt of gratitude for his help and guidance over twenty-five years. Yet I now propose to be churlish. Harris is a consistent, eloquent advocate of rationality. He appeals to reason, thrusting aside superstition and sentimentality.7 I shall argue that reason alone is not always right. Not only am I churlish, I confess I also tweak the framework of much of Harris’s discourse. For my concern is not with bioethics per se, but with that delicate relationship between bioethics and public policy. I shall contend that in terms of law and policy, the reasonable Professor Harris is not always right. To compensate for such an ‘unfriendly act’, however, I also contend that Harris’s uncompromising and consistent

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ethical arguments make an invaluable contribution to debate on policy and legal regulation. Laws in most modern multi-cultural and democratic ­societies are of necessity based on compromise. Harris would classify some of those compromises as ‘fudge’. We need to be acutely aware when we are ‘fudging’ the issue, even when ‘fudge’ is inevitable. Out with outrage, sentiment and superstition: embryos, babies and non-persons! Harris’s rejection of sentimental morality, his disgust with the ‘yuk factor’ is well documented.8 In Clones, Genes and Immortality,9 for example, he takes issue with Mary Warnock. He says in relation to the Warnock Committee’s report on embryo research: Although Mary Warnock often talks of ‘moral outrage’ rather than ‘simple outrage’, she nowhere gives us an account of how to tell one from t’other … I myself think that David Hume’s remark, quoted with approval, by Warnock, that morality is more properly felt than judged of is just plain wrong, and indeed that the converse is nearer the truth.10

Let us first consider Harris’s views on embryos and babies. Scrupulous, rational analysis of the nature of the human embryo can, in his view, result only in the conclusion that the embryo per se has no moral status. Lacking the characteristics which make human persons morally distinguishable from other animals, the embryo exists in a moral vacuum.11 And so, of course, does the fetus and the newborn infant. Embryocide is no greater or lesser a moral wrong than infanticide. Destroying a fertilised egg may be a wrong against the gamete donors, if done without their consent. Killing a newborn baby may be a crime against, not just the parents, but others who have a legitimate interest in the survival of the child (note those eponymous characters, the ‘Sisters of the Embryo’).12 But the killing is no more a wrong against the embryo or infant than the painless killing of unwanted kittens. Harris is clear that any entity capable of feeling pain has a moral claim to be protected against the infliction of pain, even if it is permissible to kill that creature.13 Harris’s views, summed up in his core concept of personhood as the arbiter of moral identity, are by no means unique.14 He stands out from the pack in two respects. Firstly, Harris is wholly consistent. His uncompromising stances on personhood and its implications for abortion, neonaticide and euthanasia have not ‘mellowed’ over time. Second, he never hides behind language. He is open and even blunt, saying this in his book Enhancing Evolution: ‘I have attempted to explain how abortion and even infanticide for disability are extensions of the legitimate, perhaps imperative, ethic of combating disability’.15 Not for Harris, the equivocal language of embryos and pre-embryos.16 He will engage with ‘pro-life’ opponents in debate about unborn babies. Harris, in advocating voluntary euthanasia, eschews the more comfortable half-way houses of physician-assisted suicide



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or assisted dying. He pays a heavy price sometimes. He has been hounded by some of the media, condemned as a ‘baby killer’17 and prevented from speaking in Germany on at least one occasion. Reflect for a moment on Harris’s views on embryos, fetuses and neonates. His logic is hard to fault and paradoxically is shared by those who may reach a diametrically opposite conclusion to Harris in relation to the moral status of the unborn or newly born human.18 Much ink has been wastefully spent on asking when life begins. Eggs and sperm are alive. Where artifice and nature both hold their hand and the two unite, a journey is set in motion which will (if uninterrupted) result some years later in a child who qualifies as a person (qua Harris). Fertilisation, the creation of a novel genetic identity (or sometimes duplicates) is one of the two most dramatic steps in that journey; the other being birth itself. Yet in debates about embryo research and abortion, a middle ground is sought, sometimes 14 days, sometimes 12 weeks, sometimes ‘viability’. The devout and the orthodox Roman Catholic (among others) shares Harris’s contempt for such fudge. The cold truth of the matter is that if simply being human matters, if human life is a Divine gift, none of these stages counts. If other humans do not intervene, the fertilised egg is ‘an unborn baby’ and becomes a person. Thus Harris’s polar opposites concur in his view that whether this entity is a blastocyst, an embryo, a fetus, or a newborn infant does not matter. Unlike Harris, however, they will conclude that none of these entities may be killed. Abortion at 12 days, 12 weeks or 24 weeks is just as morally impermissible as killing a newborn infant. The choice for Harris and his ‘opponents’ is stark – all or nothing. Yet in 2015 most laws, supported by many people, sidestep that choice. Society searches desperately for another measurable, preferably biological, criterion by reference to which we can agree human life begins to matter. In a media obsessed world, appearance undoubtedly begins to matter. Videos of the ‘baby-fetus’ walking in the womb help to drive pressure to reduce timelimits for abortion.19 Debates about fetal awareness proliferate.20 Neither in itself matters. The day-old kitten stretches out her paw. The unwanted mongrel puppy is at least as, if not more, aware than any fetus in a human womb. If killing something that looks like a baby is wrong, killing something that feels sensation is wrong, then so is killing the kitten or the puppy. Just because we feel more uncomfortable aborting a 26 week fetus rather than an eight week fetus makes no difference to the intrinsic moral worth of either entity. The reasonable Harris is right? What however of the baby born alive? There is increasing discussion of the ethics of active euthanasia for severely disabled newborn infants.21 Hardly anyone, however, would endorse post birth ‘abortion’ of a healthy infant. A proposition that parents who just after their baby is born are offered new jobs in Australia should be able to terminate the baby’s life, because she or he is now an inconvenience, would generate outrage. Yet what significant difference is there between the 39 week fetus in utero, and the baby born

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the next day? English law currently prohibits abortion after 24 weeks on any ground save risk to the mother’s life, or grave permanent injury to her health or substantial risk of serious fetal handicap.22 Anomalies abound nonetheless. The fetus diagnosed with Down’s Syndrome at 34 weeks may be lawfully aborted. The same entity delivered prematurely at 34 weeks is protected by laws prohibiting homicide. For Harris this is a nonsense. As he puts it: ‘I don’t think it is plausible to think there is any moral change that occurs in the journey down the birth canal.’23 There is no significant difference between fetus and baby. Birth of itself is irrelevant to the status of the baby. It is very relevant to the claims of others. Harris has never advocated killing babies. He is scrupulous in analysing the multiplicity of interests in decisions touching on the care of disabled newborn infants. He limits his argument to the claim that killing the newborn infant does not rob that creature of something which it is capable of valuing. Consequently, pursuing his rejection of the distinction between acts or omissions, killing it painlessly is morally preferable to letting it die. All contrary arguments (he asserts) rest predominantly on feelings, unless the proponent is as passionate an opponent of abortion as euthanasia. Feelings and fallibility Pity the poor judge or legislator! What should they do? An absolute prohibition on abortion will result in riots in the streets. Legislation expressly permitting the termination of the life of a child aged less than 18 months at parental request will result in riots in the streets. So where has Harris gone ‘wrong’? If indeed he has gone ‘wrong’? One answer might be that law is not driven by reason alone. Let us return to the ‘reasonable man’. Perhaps he is not after all the prototype for John Harris? Winfield24 seeks to explain the term. He cites several different descriptions of this elusive legal creature. Lord Bowen we are told ‘visualised the reasonable man as “the man on the Clapham omnibus”’.25 An American writer described him as ‘the man who takes the magazines at home and in the evening pushes the lawn-mower in his shirtsleeves’.26 Thus described he ceases to be the model of rationality and becomes just an ordinary ‘guy’. I am not personally acquainted with the Clapham omnibus. On Manchester’s buses feelings run high and philosophy is rarely found. The man (or woman) reading magazines and mowing the lawn is more likely to read The Daily Mail than Hume or J.S. Mill. The factors Harris dismisses, especially feelings, influence his or her judgment. Harris will argue we must not permit those feelings to dictate our moral objectives. The dead are dead: full stop Let us move from Harris’s views on the beginning of life to its end, or rather post mortem – after its end. Nowhere does he articulate his views on the fal-



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libility of feelings as clearly as in his dissection of the controversy surrounding organ retention. Almost accidentally in the course of the Public Inquiry into children’s heart surgery at Bristol Royal Infirmary27 evidence emerged that across the United Kingdom organs and tissue had been retained after post mortem examination from the bodies of dead children, causing the Inquiry to issue an urgent interim report.28 Subsequently evidence became available that organ retention, with no, or no real, consent, from the deceased or their families extended to the dead of all ages. Children’s hearts were retained at Bristol. More or less all internal organs were kept in numerous cases in Liverpool.29 The brain of a devoutly orthodox Jewish man was taken in Manchester.30 Whole bodies of stillborn babies and late term fetuses were stored in laboratories. And this pattern was repeated in almost every major town in the realm.31 Families who discovered that they had not after all buried or cremated the whole bodies of loved relatives expressed outrage. The then Secretary of State for Health described the Redfern Report into organ retention at Alder Hey Hospital as the most shocking he had ever read.32 For just over three years chairing the Retained Organs Commission33 I faced the outraged feelings of families day by day. John Harris espoused an unpopular view, challenging the demands for legislation to make explicit consent a pre-requisite of retaining and researching on tissue taken from the dead. He approaches the subject with his usual forensic rationality:34 Everyone knows that the idea that bodies can remain intact (whatever ‘intact’ may mean) is an illusion.35 … the complaint of those who object to actions that violate the physical integrity of the corpse is scarcely rational. Illusions are fine, but whether the State and the Courts should give judicial or official support to these illusions is more doubtful, particularly when to do so might deprive others of the possibility of life saving therapies.36

His rationality is hard to fault. The body will decay. If I die in good health my vital organs may directly save another’s life. If I die in poor health my diseased organ may teach scientists so much about my disease that indirectly others’ lives may be saved. Alastair Campbell in his chapter in this collection ‘Why the Body Matters: Reflections on John Harris’s Account of Organ Procurement’37 engages with Harris’s (in his view) limited perspective on the value of the human body. In 2002, I too entered into debate with Harris on the vexed question of organ retention.38 Harris’s case was (and is) powerful. The past 50 years have demonstrated that human material in all its diverse forms is an invaluable medical tool. Organ transplants save lives in a direct and obvious fashion. Biobanks hold the key to vast areas of new knowledge. Organs retained from the dead enable doctors to study disease. Children’s hearts help train paediatric surgeons in cardiac surgery. A heart retained from a dead infant may contribute to successful surgery on another. Such a cornu-

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copia of goods at first glance makes any quibbles about tissue transplants or ­retention sound feeble. Nor (as Harris notes) is organ retention novel. He calls in aid the thousands of relics, parts of the bodies of saints and martyrs scattered across the cathedrals of Europe. I do not for one moment challenge Harris’s assessment of the good to be obtained from use of human tissue. Our disagreement centres on the means to attain those good ends. Let us reflect for a moment on living ‘donors’. I may well carry within my body, cells and tissue of maximal use to colleagues down the road in the Faculty of Life Sciences. A Nobel Laureate might need cells from my lungs to complete his research, should I be unfortunate to suffer from some sufficiently interesting disease. More straightforwardly, I am lucky to have two functioning kidneys yet I only need one. Thousands of patients on dialysis need my surplus kidney. Neither my researcher colleagues nor the needy patient can claim my cells or my kidney unless I choose to donate them. My claim to autonomy and bodily integrity trumps all others. As yet I am not aware that Harris has championed compulsory harvesting of organs or tissues from competent living adults, although he has argued for mandatory participation in clinical research.39 Harris’s argument depends on my decease. Dead, I cannot be harmed or hurt. Thus, if cells from my lung will advance medical science, and my kidney will save a life, so be it. Objections expressed on my part in life, any distress occasioned to my bereaved family are just not of sufficient weight to counter other compelling claims to my bodily material. Consent, whether by my advance directions prior to death, or given by my relatives after my death, matters little. Harris says bluntly: ‘Respect for consent here is more like extending a courtesy than respecting a right’.40 A courteous man, Harris would prefer to have consent. He argues forcefully that at the least the law should be founded on a presumption of consent. But he goes on to say: ‘failing consent or authorisation, conscription of the use of post-mortem organs and tissue where these are required for important moral purposes is morally and (probably) legally justifiable and should be seriously considered’.41 Many others share Harris’s support for presumed consent with more enthusiasm than he does. In 2004, battles were fought in both Houses of Parliament to amend the Human Tissue Bill to introduce such a principle. The fight for presumed consent continues with Wales, at the time of writing about to introduce an ‘opt out’ scheme for those who die resident in Wales.42 Few are bold enough to speak of conscription. But if Harris is right, and all the reasons advanced to require explicit consent for the harvesting of post-mortem organs and tissue are lacking in moral weight, why speak of consent at all? Why hide behind pretence? Harris abominates pretence. He forthrightly condemned the deceit practised in a number of cases prominent in the controversy surrounding organ retention. His contention is that society should openly dispense with any need for consent to the harvesting of post-mortem tissue, and that argument is what we should engage with. Take first the ‘consent’ of the deceased



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herself. Should her wishes count? Any answer depends on a much broader consideration of the values of a life. The common law has always endorsed my right to dispose of my property as I will after my death. Making a will is perceived as a responsible and important action in life. In addressing mental capacity to make a will, the judges address the testator’s ability to recall the extent and nature of his or her properties and contemplate his or her familial and moral obligations to potential beneficiaries.43 The disposition of assets after death is perceived as important in living a good life. Literature and history abound with examples of the importance which individuals attach to what happens after their hearts cease to beat.44 The ‘reasonable’ man settles his affairs. No doubt we all hope that he does so responsibly. The common law however endorses his right to do as he chooses. So I may ignore the usual framework of family love and obligation and bequeath my whole estate to the local cattery. My reasons for so doing cannot be examined. Perhaps I hate my family. Perhaps they hate me, and have in my life diminished the quality of that life. Perhaps I just love cats infinitely more than humans. It does not matter. What I value in life is what counts. Yet even the modest estate which a Professor of Law may leave would pay for several kidney transplant operations. Does Harris’s view mean that the NHS should be free to conscript all my cash as well as my kidneys? In the context of my body, the driving force behind my decisions about use of that body after my death may well be faith or culture. Faith may dictate the burial of my body intact, or cremation of every atom of my being. A life lived in faith may in many cases be a life affected by expectations of the observation of the appropriate rituals post mortem. Fear that such rituals will be swept away by the imperatives of state-sponsored medicine diminishes the life being lived. The crucial importance of observances in relation to the dead body in many faiths means that disregard of such observances makes a mockery of any right to manifest your religion ‘in worship, teaching practice and observance’.45 At this point, Harris (if he reads this chapter46) will play a trump card. While the common law currently endorses my right to dispose of my property as I wish, directions in my will about disposal of my body are not binding on my executors.47 My agnostic daughter can lawfully ignore my wishes to be buried with the rites of the Book of Common Prayer and send my body unaccompanied to the crematorium for cursory disposal. I shall return to this anomaly a little later. Let us look now at the interests of bereaved families. Harris acknowledges their grief and loss. He urges that we not allow the agenda on organ retention ‘to be set by those forced to view it through the distorting lens of grief’.48 The emotional impact of non-consensual harvesting of organs from the dead on their families must give weight to ‘more important personaffecting interests of others’. The interests of the youth dying of renal failure and his mother outweigh the interests of the Orthodox Jewish mother for

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whom failure to bury her son entire will be a lifelong trauma. The interests of those who may benefit from research into Alzheimer’s Disease outweigh the interests of a Brethren family who will forever judge that they failed their father in death. The breakdown occasioned to a mother whose continuing attachment to her dead child meant that ‘desecration’ of his body was unthinkable is much to be regretted. For Harris, weighed against the life of another child, her claim is insufficiently weighty. None of the above examples is easy to resolve. Put starkly as a choice between one living person and other interests of a different kind might one be tempted to agree with Harris? In doing so we would be imposing one set of values on a society that does not uniformly share those values. We would impose one creed – that of personhood. All that matters about being human matters only (1) to the individual attaining and retaining self-awareness and (2) to the individual rationally weighing her or his wishes and preferences. Moreover, the physical health of the living body which the individual inhabits is of greater value than any other attribute humankind has assigned to the body in life or death. That view of the body as little more than an artefact is eloquently opposed elsewhere in these essays by Campbell.49 I can do no better than echo his concluding endorsement of Ruth Richardson’s claim ‘what is done to the dead is done to us all’.50 As a lawyer, however, I must return to anomalies in the law. The Human Tissue Act 2004,51 insofar as it addresses post mortem tissue, represents a ‘defeat’ for Harris. The taking and use of almost any cells from my dead body for the purposes of (inter alia) medical research or education, or for transplant, must be authorised either by me (prior to my death), or by my nominated representative, or by a close family member or friend. Consent must be explicit and cannot be presumed. The dead are valued as Campbell and I would wish. Or are they? My agnostic daughter can still ride roughshod over my directions for disposal. Should my death be sudden or apparently unnatural, a coroner can order a post mortem examination and while the Coroners and Justice Act 2009 allows family members to appeal to the Chief Coroner against such an order neither my wishes nor my family’s objections will be determinative.52 The law adopts no consistent philosophy.53 In promoting the Human Tissue Act in 2004 the government steered away from fundamental questions about the value of bodies. Compromise won the day. Some issues were ‘fudged’. Without ‘fudge’ legislation might have been impossible. The responsible expert Did I miscast John Harris at the start of this chapter? He is not the eponymous ‘reasonable man’ or even ‘person’ beloved of the law of tort. He resembles more closely the expert witness. Harris offers to society the same service which the medical expert ought to offer in clinical negligence claims. His analytical approach to ethics offers a barometer by which to measure



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proposed changes in law and policy. Unlike some real medical experts, Harris’s views are always ‘logical and defensible’.54 As do real medical experts, Harris offers evidence based on his expertise. In Re A, the famous and tragic legal case relating to the separation of the Manchester conjoined twins,55 the Roman Catholic Archbishop of Westminster was highly unusually allowed to make a written submission to the Court of Appeal. The Archbishop set out in clear and ringing language the core Christian beliefs on sanctity of life. Elizabeth Wicks noted that the ‘granting of permission for the Archbishop to make written submissions to the court is in itself controversial’.56 She goes on, however, to note that such an intervention, given the devoutly Catholic beliefs of the twins’ parents, is easier to justify than religious interventions in the Parliamentary process. What is harder to justify is that no expert to the contrary view of human life was invited or permitted to submit his or her ethical brief. Harris subsequently did publish his own take on Re A. He forcefully and painstakingly exposed the holes in much of the argument while finally agreeing with the Archbishop about the outcome.57 For wholly different reasons, the Roman Catholic prelate and the ‘evangelical’ atheist agreed that the courts should have respected the parents’ decision to refuse consent to separation. The general point I would wish to make is this: ethics is much more than simple moral ‘views’. The arguments at stake are just as complex as the intricacies of medical treatment. They embody expertise. Judges may think that they possess that expertise but Miola has shown that this is far from the case.58 In an adversarial legal system, the presentation to the court of starkly opposing positions enables the court to have clear view of the fundamental philosophical arguments at stake. That does not mean the judges (or Parliament) must choose sides. The ethical experts, as do the medical experts, present the court with options that must be factored into many other considerations. Society then must make the difficult choice, weighing not just the expert ethical opinions but having regard to ‘[ethical], emotional and other issues’.59 Feelings, ‘moral nose’, should not drive the development of the scholar’s ethical position but must be accounted for by judges, legislators and policy makers. A man for all seasons? Jonathan Glover applauds John Harris’s ‘note of gleefully disrespectful questioning’ as one of his (and philosophy’s) most important contributions to the world.60 His sheer honesty and moral courage are other feathers in his cap. They make him an incisive teacher. They hone the arguments of his opponents as much as his disciples. John may cavil at the analogy, but this twenty-first-century scholar bears a remarkable resemblance to those martyrs who, like Thomas More,61 would not bend their principles to suit princes.

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  1 See Blyth v Birmingham Waterworks, English Reports 156 (1856), 1047; W.V.H. Rogers (ed.),Winfield and Jolowicz on Tort (Sweet & Maxwell, 17th edn, 2010), pp. 74–8; P.H. Winfield, ‘Ethics in English Case Law’, Harvard Law Review, 45 (1931), pp. 112–35, at pp. 125–6. L.H. Eldredge, Modern Tort Problems (Philadelphia: G.T. Bisel, 1941), pp. 1–24.   2 Rogers, Winfield and Jolowicz, p. 75.   3 Ibid.   4 A. Dugdale and M. Jones (eds.), Clerk and Lindsell on Torts (Sweet and Maxwell, 20th edn, 2010) p. 517.   5 J. Murphy and C. Witting (eds.), Street on Torts (Oxford: Oxford University Press, 13th edn, 2012) p. 111.   6 See The Moorcock (1889) 14 PD 64. [Note A. Herbert, Uncommon Law (Capuchin Classics, 2001) pp. 1–5.]   7 And see chapter 3 above, J. Glover ‘On Moral Nose’.   8 J. Harris, The Value of Life: An Introduction to Medical Ethics (London: Routledge, 1985) pp. 131–3.   9 J. Harris, Clones, Genes and Immortality: Ethics and the Genetic Revolution (Oxford: Oxford University Press, 1998). 10 Ibid. p. 56. 11 See Harris, The Value of Life, Chapter 1. 12 See J. Harris, Wonder Woman and Superman (Oxford: Oxford University Press, 1993) pp. 39, 69, 129. 13 See Harris, The Value of Life, p. 117. 14 See for example M. Tooley, ‘A Defense of Abortion and Infanticide’, in J. Feinberg (ed.) The Problem of Abortion (Belmont, CA: Wadsworth,1973); H. Kuhse and P. Singer, Should the Baby Live? (Oxford: Oxford University Press, 1985). 15 J. Harris, Enhancing Evolution (Princeton: Princeton University Press, 2007), p. 100, emphases added. 16 See M. Brazier, ‘Embryos’ ‘Rights’: Abortion and Research’, in M.D.A. Freeman (ed.) Medicine, Ethics and Law, (London: Stevens, 1988), pp. 9–23. 17 See Daily Mail (27 January 2004). 18 E.g. J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980); O. O’Donovan, Begotten or Made? (Oxford: Oxford University Press, 1984). 19 D. Kirklin, ‘The Role of Medical Imaging in the Abortion Debate’, Journal of Medical Ethics, 30 (2004), p. 426. 20 See the Report of the RCOG Working Party on Fetal Awareness (London: RCOG, 1997). 21 See the furore about the so called ‘Groeningen Protocol’: The Times (26 April 2005). 22 See s. 1 of the Abortion Act 1967 as amended by s. 37 of the Human Fertilisation and Embryology Act 1990. 23 See Daily Mail (27 January 2004). 24 Rogers, Winfield and Jolowicz on Tort, pp. 74–8. 25 Ibid. p. 76. 26 See per L.J. Greer in Hall v Brooklands Auto Racing Club [1933] 1 KB 205 at 224.



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27 See Learning from Bristol: The Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary 1984–95 (CM 5207(1), 2001). 28 The Bristol Royal Infirmary Inquiry, Removal and Retention of Human Material (London: The Stationery Office, 2000). See generally M. Brazier and E. Cave, Medicine, Patients and the Law (London: Penguin, 5th edn, 2011), pp. 530–9. 29 See The Royal Liverpool Children’s Hospital Inquiry Report (HMSO, 2001) (The Redfern Report). 30 The Isaacs Report – The Investigation of Events that Followed the Death of Cyril Mark Isaacs (Department of Health, 2003). 31 Report of a Census of Organs and Tissue Retained by Pathology Services in England (Department of Health, 2001). 32 See The Times (29 January 2001). 33 See Department of Health, Remembering the Past: Looking to the Future, The Final Report of the Retained Organs Commission (2004). 34 In J. Harris, ‘Law and Regulation of Retained Organs: The Ethical Issues’, Legal Studies, 22:4 (2002), pp. 527–49. 35 Ibid. 547. 36 Ibid. at 548. 37 See chapter 12 below, Alastair V. Campbell, ‘Why the Body Matters’. 38 M. Brazier, ‘Retained Organs: Ethics and Humanity’, Legal Studies, 22:4 (2002), pp. 550–69. 39 J. Harris, ‘Scientific Research is a Moral Duty’, Journal of Medical Ethics, 31 (2005), pp. 242–8. 40 Harris, ‘Law and Regulation of Retained Organs’, p. 548. 41 Ibid. emphases added. 42 See the Human Transplantation (Wales) Act 2013. 43 See, for example, In the Estate of Park [1954], p. 112. 44 See S. McGuinness and M. Brazier, ‘Respecting the Living Means Respecting the Dead Too’, Oxford Journal of Legal Studies 28:2 (2008), pp. 297–316. 45 As endorsed by Article 9 of the European Convention on Human Rights. 46 See chapter 19 below, John Harris, ‘Response to and Reflections on Chapters 3–18’. 47 Williams v Williams (1882) 20 Ch D 659. 48 Harris, ‘Law and Regulation of Retained Organs’, p. 548. 49 See chapter 12 below. 50 R. Richardson, Death, Dissection and the Destitute (Chicago, London: University of Chicago Press, 2nd edn, 2000). 51 See K. Liddell and A. Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’, Medical Law Review, 13 (2005), pp. 170–223. 52 See s. 40, Coroners and Justice Act 2009. 53 On reform of the coronial system see Death Certification and Investigation of Death By Coroners in England, Wales and Northern Ireland: The Report of a Fundamental Review (CM 5831, 2003) HMSO; Death Certification and the Investigation of Death By Coroners: The Shipman Inquiry: Third Report (CM 5854, 2003) HMSO; Reforming the Coroner and Death Certification Process: A Position Paper (CM 6159, 2004) HMSO. 54 See Bolitho v City & Hackney Health Authority [1998] AC 232 HL. 55 Re A (Minors) (Conjoined Twins: Separation) [2001] Fam 147, C.A.

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56 E. Wicks, ‘Religion, Law and Medicine: Legislating on Birth and Death in a Christian State’, Medical Law Review 17 (2009), pp. 410–37, at 422. 57 John Harris, ‘Human Beings, Persons and Conjoined Twins: An Ethical Analysis of the Judgment in Re A’, Medical Law Review 9:3 (2001), pp. 221–36. 58 J. Miola, Medical Law and Medical Ethics (Oxford and Portland, Oregon: Hart Publishing, 2007). 59 With apologies for distorting his statement to Thorpe L.J.; see Re A (Medical Treatment: Male Sterilisation) [2000] 1 FCR 193 at 200, C.A. 60 See chapter 3 above, J. Glover, ‘On Moral Nose’. 61 Though by all recent accounts John Harris is a nicer man than the martyred More.

12

Why the body matters: reflections on John Harris’s account of organ procurement1 Alastair V. Campbell

Introduction In this chapter I shall explore the philosophical implications of John Harris’s arguments for the procurement of organs and tissue from the living and the dead. Harris has written quite extensively on this topic, starting with his earlier books on medical ethics.2 However, his views appear to have remained relatively constant over the period, and can be found encapsulated in an issue of the Journal of Medical Ethics devoted to the ethics of human tissue use.3 In that issue he wrote an editorial, in which he defended the mandatory availability of cadaveric organs for transplantation. In the same issue, he published a paper, co-authored with Charles Erin, arguing for an ‘ethical market’ in human organs from living donors. I shall use these summaries of his views as my main source for describing his account of the human body, but in addition I shall refer to a paper in which he describes his approach to post mortem examinations and the retention and use of human organs and tissue.4 The body as resource In the editorial referred to above, Harris writes – in typical rumbustious style – about the priority of the needs of the living over the interests of people in the integrity of the dead body: ‘it is surely implausible to think that having one’s body remain whole after their death is an objective anyone is entitled to pursue at the cost of other people’s lives! It is implausible to the point of wickedness, not least because the objective is irrational and impossible of achievement’.5 This approach to people’s beliefs about the importance of the dead body finds powerful expression in an article by Emson in the same issue of the Journal of Medical Ethics. Writing as a forensic pathologist, Emson claims that: ‘the human body can only legitimately be regarded as on an extended loan from the biomass to the individual’.6 From this Emson concludes that the human cadaver must be viewed merely as a

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resource for those who may benefit from it. (This approach to the body is reminiscent of Frank Herbert’s science fiction novel, Dune, in which a desert people immediately render dead bodies into their constituent elements, to augment the vital resource of water.7 However, this account of the human dead body as a res publica has been criticised by Giordano, who argues that there will be greater moral gain in educating the public to make responsible choices in this regard.8) In Wonderwoman and Superman, John Harris makes the same point as Emson in equally unambiguous terms. Discussing the problem of seeking consent from relatives for the use of cadaveric organs for transplantation, he puts forward the idea that a change in public policy would remove what he sees as the irrational demand that relatives should have a say in what happens to human tissue after death, since this is merely a problem of emotion: The solution to the problem of sensibilities is of course to determine that cadavers, like the foreshore, belong to the state and that therefore neither relatives nor the former ‘owners’ of the cadavers would have any binding interest in their fate. People would, I believe, soon get used to the idea … and the automatic public ownership of dead bodies and their bodily products would remove the need to interpose intrusive requests between people and their grief.9

It comes as no surprise, then, that, when the controversy over the retention of organs in Bristol, Alder Hey and elsewhere blew up, Harris took the view that ‘the complaint of those who object to actions that violate the physical integrity of the corpse is scarcely rational’.10 Since the body quickly decays and is soon invaded by foreign matter, Harris sees talk of posthumous bodily integrity as ‘an illusion and the fact that everyone knows this hope to be illusory is some evidence as to the irrationality of the desire’.11 In a careful response to Harris’s paper, Margot Brazier points out that he dismisses a widely and powerfully held value in our community: For [Harris], the ‘cost’ of removal of organs and tissue after death is virtually non-existent. He seeks to presume that others make the same calculation of that cost. His presumption is not founded on evidence of shared values within our community. The whole history of organ retention suggests the contrary. A substantial number of people regard the removal of parts after death as a significant cost to their family values and psychological welfare.12

In a later article, Brazier and her co-author McGuinness point out that the death of a person is a period of transition, ‘not akin to a switch that once “off” means that the dead person ceases to matter at all’.13 They go on to argue that religious beliefs and rituals expressing respect for the dead should not be discounted in societies which respect freedom of belief and opinion. What interests me in this interchange of views is the presumption of rationality, which pervades Harris’s defence of his account of the issues, and his tendency to dismiss widely held contrary views as illusory or merely



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emotional. He uses as evidence of the ‘irrationality’ of respect for bodily integrity after death the undeniable fact that dead bodies decay, are invaded by maggots, etc. Yet nobody who argues for respect for the dead body holds the illusion he attributes to them. People who mourn the death of a person they have loved do not imagine that the body will stay the same after death. But in that painful time they need to say goodbye to the person, remembered as a body not just a mental experience – why else do the parents of stillborn babies find it helpful to hold the body in their arms? The point Harris seems wilfully to ignore is the significance of the body of an individual both to the individual and to those who care for the individual, both in life and in death. Alternative views to his description of the dead body are dismissed as prejudiced and irrational, because strong emotion enters in, whilst his account is seen as coolly rational and objective. (I have explored this point at greater length in an article co-written with a parent whose child was subject to the unauthorised removal of organs.14) The same tendency to load the moral dice is evident in Harris’s publications about selling organs. In this short chapter I cannot enter into a full discussion of Erin and Harris’s approach to an ‘ethical market’ in organs since it raises other major questions about justice and the prevention of exploitation. I refer to it only because part of their promotion of organ sales is an undefended assumption that body parts are exactly the same as material possessions, to be disposed of by their ‘owners’ as they choose. In support of this view Harris has argued that, since there is no moral objection to the donation of our organs, there cannot be any objection in principle to the sale of them.15 But this is to ignore the moral differences between the gift and the sale of parts of ourselves. The donation of part of my body is an expression of my care for others (often for unknown recipients, a gift to needy strangers). It is quite different from a commercial transaction in which there is mutual financial benefit of an impersonal kind. So donation of body parts is a form of self-giving, and in the case of a living donor, quite a serious act of risk of self for the other. It is, therefore, wrong to say that donation provides a moral justification for sale. The intellectual root of Harris’s conflation of gift and sale appears to be his basic assumption that the body is irrelevant to the moral significance and personal integrity of the individual. Ghosts in machines or embodied selves? I turn now to an exploration of the philosophical underpinnings of Harris’s account of the body (as implied in his writing on the use of organs and tissue). I shall compare it with alternative ways of describing the significance of the body, in order to gain an adequate understanding of the nature of the human self. I shall argue that the devaluation of the body in Harris’s writings stems from an unquestioning acceptance of the Cartesian distinction between the mental and the physical, a related ignoring of the significance of emotion, and a narrow and individualistic account of the value of persons.

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Gilbert Ryle’s celebrated critique of Descartes, The Concept of Mind,16 argues that Cartesian Dualism, the attempt to divide reality into two separate entities, res cogitans and res extensa, rests on a category mistake. Deliberately caricaturing Descartes’ account as describing humans as ‘ghosts in machines’, Ryle offers a solution in terms of types of description and prediction of human thought and action. Bodies and minds are not two types of ‘thing’ (res) – rather, language about the mind is a set of descriptions of a different type from those that we use to speak about the body. All descriptions, however, relate to the same sphere of knowledge, our experience of ourselves and others in interaction and communication. Ryle’s linguistic analytical critique clears the ground for a more adequate account of the relationships between mind, body and person than Descartes’ metaphysical res cogitans, but it provides no positive way of describing the unity of mind and body of our ordinary experience – the ‘embodied self’ or ‘mindful body’. For this we can turn first to the writings of a contemporary neurophysiologist, Antonio Damasio. In two extensive explorations of the neurological roots of personal identity – Descartes’ Error and The Feeling of What Happens – Damasio has mapped philosophical discussions of personal identity onto the latest findings about the structure and physiology of the brain. He convincingly demonstrates that attempts to separate the mind from the body are scientifically incoherent. His arguments are complex and extensive, but the essence of his account is captured in the opening chapters of the later work, The Feeling of What Happens. Here Damasio argues that the sense of enduring identity, which we experience in consciousness and build up through memory, is based on those basic structures of the brain, which (nonconsciously) maintain bodily integrity. These structures ensure the survival of the organism against environmental pressures to assimilate it. Damasio writes: I have come to conclude that the organism, as represented inside its own brain, is a likely biological forerunner for what eventually becomes the elusive sense of self. The deep roots of the self, including the elaborate self, which encompasses identity and personhood, are to be found in the ensemble of brain devices which continuously and nonconsciously maintain the body state within the narrow range and relative stability required for survival.17

Equally important for Damasio’s account of the self are emotions, in their distinctively human form. In a powerful passage, which is worth quoting at length, he describes the significance of human emotion: At first glance there is nothing distinctively human about emotions, since it is clear that so many nonhuman creatures have emotions in abundance; and yet there is something quite distinctive about the way in which emotions have become connected to the complex ideas, values, principles and judgments that only humans can have, and in that connection lies our legitimate sense that human emotion is special. Human emotion is not just about sexual pleasures



Alastair V. Campbell 135 or the fear of snakes. It is also about the horror of witnessing suffering and about the satisfaction of seeing justice served; about delight at the sensuous smile of Jean Moreau or the thick beauty of words and ideas in Shakespeare’s verse; about the world weary voice of Dietrich Fischer-Dieskau singing Bach’s Ich habe genug…18

Damasio’s powerful description, written as a neurophysiologist, indicates how essential it is, that we avoid the Cartesian disjunction between mind and body in describing what John Harris has called the ‘value of life’. For the very core activities of self-consciousness and valuing, so central to Harris’s arguments about value, can be properly described only if we see the inseparability of bodily based emotion from thought and judgment in ourselves and others. Of course, this is not to ignore the risk that emotion can prejudice our judgment, nor is it to subscribe to some kind of Humean notion that the reason is the ‘slave of the passions’. The point is rather that a highly intellectualist account of what we mean by valuing in a moral sense simply does not accord with the way we are, as embodied selves, in which bodily experience and emotional response play a vital part. In the eighteenth century – that most rationalist of eras – this inevitable synergy between body and mind was well perceived. Roy Porter has described it brilliantly in his last book, Flesh in the Age of Reason. Of the numerous examples he gives of the struggle with the realities of the flesh in this age of enlightenment, perhaps the most powerful is Lawrence Sterne’s comic fantasy, The Life and Opinions of Tristram Shandy, Gent. The powerful descriptions of the extreme characters in this satirical book convey the central dilemma of an age that tried to see reason as supreme. Porter captures Sterne’s central message in his own inimitable prose: [Sterne] was uncommonly sensitive to the conundrum of embodiment. In flesh and blood lay the self and its articulations. With its own elaborate signlanguage of gesture and feeling, the body was the inseparable dancing-partner of the mind or soul – now in step, now a tangle of limbs and intentions, mixed emotions. Organism and consciousness, soma and psyche, heart and head, the outer and the inner – all merged, and all needed to be minutely observed, if the human enigma were ever to be appreciated.19

We need, then, to find a more adequate account of this ‘human enigma’ than Harris allows us – one which gives due place to the significance of the body and the emotions engendered by the body. I shall refer briefly to three sources for such an account, but I readily accept that in this paper all I am offering is a preliminary sketch of an alternative view. The first source is the Phenomenological school of philosophy. This approach bases its theories on the lived experience of conscious subjects, seeking to bracket out the traditional philosophical distinction between subjective and objective. For example Merleau-Ponty, in Phenomenology of Perception, dismisses the attempt to describe some kind of Cartesian

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disembodied rationality floating above experience. All we know is bodily experience – there is no other knowledge. So Merleau-Ponty rejects ­ Descartes’ ‘object body’ and puts in its place the ‘lived-body’. Only through this lived body do we both inhabit and acquire what we identify as the objective world. It is a world that is constituted through our capacities for moving and sensing, and its apparent stability is intimately related to the constancy of our lived bodily experience.20 A second source is Aesthetics. This area has been seriously neglected by contemporary philosophy, despite the fact that it seeks to understand art and creativity, surely a central aspect of human experience. (How many contemporary philosophers have read Kant’s Third Critique? – I confess I haven’t!) Literary scholars have made some memorable, but often overlooked, contributions to Bioethics. One example is Kathryn Hunter’s account of medical diagnosis in Doctors’ Stories: The Narrative Structure of Medical Knowledge, in which the totally different languages about bodily experiences of the patient’s and the doctor’s world are revealed.21 But for an understanding of the significance of the body, there is nothing to match Elaine Scarry’s unforgettable account of torture and human creativity in The Body in Pain. Writing from the perspective of a professor of English literature, Scarry explores the creative and destructive elements of human nature by taking us to a horrifying place – the torture room. In this dark place she explores the relationships between bodily experience, the sense of self and the configuration of the world around us. She shows how torture uncovers the fragility of our sense of identity and the thinness of the boundary between self and world, a boundary which, in our stronger moments, we feel to be permanent and secure. Here is how Scarry describes what happens to our perceptions of the self, when the torturer does his evil work: It is the intense pain that destroys a person’s self and world, a destruction experienced spatially as either the contraction of the universe down to the immediate vicinity of the body or as the body swelling to fill the entire universe. Intense pain is also language destroying: as the content of one’s world disintegrates, so the content of one’s language disintegrates; as the self disintegrates, so that which would express and project the self is robbed of its source and subject.22

Thus, those features which we associate with our identity and worth, our sense of ourselves as independent, separate and communicative beings, can all be destroyed through the relentless incursion on our bodily and mental integrity in torture. Damasio’s central thesis, that the sense of self originates from the organism’s defence of itself against a potentially destructive environment, gains cruel vindication in Scarry’s research. Equally, Scarry argues that the same source, the body in interaction with the environment (but now in a positive way), produces creativity. A final source for understanding the significance of the body can be found in the writings of the medical anthropologists. Ruth Richardson, in her encyclopaedic and fascinating account of the social and historical setting



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of the Nineteenth-century Anatomy Act in Britain, Death, Dissection and the Destitute, has shown how disregard for the dead body had powerful associations with social attitudes to the poor and destitute. The dead body was not mere dead flesh: it was powerfully symbolic of the person, and so its post mortem treatment (such as allowing the bodies of the destitute to be taken for dissection) conveyed the lack of worth of the person. Richardson believes that this symbolic valuation or devaluation is as important today. In an Afterword to the book, written as a reflection on the retained organs controversy, she suggests that disregard for the feelings of relatives showed the continuing danger of a medicine that loses contact with lay people’s values. She concludes: ‘What is done to the dying and the dead is done to us all’.23 Other anthropological writing sets the body in both a personal and a socio-political context. Scheper-Hughes and Lock have provided what they call ‘a prolegomenon to future work in medical anthropology’ by surveying different conceptions of the body under the general heading the ‘mindful body’. Their use of this term indicates that they want to overcome the biologising of the body, which characterises Western medicine. While acknowledging the force of a reductionist approach to the body in enabling major advances in medical science, they point out the serious losses to medical practice in terms of understanding and helping the individual patient. Contrasting Western and non-Western approaches to medicine, they point out that in the latter: many ethnomedical systems do not logically distinguish body, mind and self, and therefore illness cannot be situated in mind or body alone. … the body is seen as a unitary, integrated aspect of self and social relations. It is dependent on, and vulnerable to, the feelings, wishes and actions of others, including spirits and dead ancestors. The body is not understood as a vast and complex machine, but rather as a microcosm of the universe.24

The authors accept that the Western reductionist way of conceptualising the body is unlikely to be set aside easily, since it would entail the ‘unmaking’ of our own assumptive world, with a consequent anxiety about the loss of an objective foundation for knowledge. But they make a plea for a fuller understanding of the body, one which relates more directly to our experiences of illness and recovery. They want the body to be seen as: ‘the most immediate, the proximate terrain, where social truths and social contradictions are played out, as well as a locus of personal and social resistance, creativity and struggle.’25 Why the body matters – alive or dead My case, then, is that if we discount the body, treating it as a sort of fleshly container for the mind, or as mere decaying matter (albeit decaying faster after we die!), we miss an essential dimension of morality. This is not to

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defend some kind of quasi-religious mystique about the human body. I share with Harris the view that the value of life resides in the capacity of individuals to be thinking, self-conscious beings who value their lives. (I would qualify this, by saying that this is just part of the value and I would want to add some other dimensions to what I see as a rather thin account of the scope of morality, but that is a different matter and not relevant to this chapter.26) Staying solely within the parameters set by Harris, of conscious valuing life, I have been arguing that the body plays a necessary part in this act of self-aware valuing. The life which we value, and our reasons for valuing it, are richer and more complex than Harris’s Lockean account of personal identity allows for. It is through our bodies, as I have illustrated above from different disciplinary perspectives, that we know and are known. The world around us, both personal and impersonal, is mediated bodily, and those emotions, which make us humans rather than mere humanoid computers, stem from our bodily and our social existence. Our richest experiences of value come through our bodily senses. Our care of, and dependency upon, others – the most intimate aspects of our moral experience – stem from our fleshly vulnerability and our ability to respond to the bodies of others. The moral stakes in organ procurement In light of all of this, I find it a puzzle that Harris pays so little heed to the body, and supposes that people in grief will feel no pain if the State insists that the bodies of their relatives are mere bio-resources! Of course this is the more extreme form of his argument, and perhaps he might be persuaded to accept that feelings about the violation of dead bodies are justifiable and are not part of an illusion about carnal immortality. But, even were he to concede this, there remains the moral outrage part of his argument, in which he sees it as ‘inconceivable to the point of wickedness’ that people should refuse to let their own or their dead relatives’ bodies be used to save lives. It is to this argument about proportionate harm that I turn, in concluding this discussion. This part of Harris’s argument seems to run as follows: let us concede that some harm may be caused to some people by the removal of organs or tissue to save the lives of others. In the case of the living, this harm would be the risks of removal of (say) a kidney, whilst in the case of the dead it would cause harm either to the dead person’s own values (e.g. a religious belief in whole burial) or to the values or sensitivities of surviving relatives. Granted this harm exists, the argument runs, it is insignificant compared with the massive harm caused to those who die because the organs or tissue are not available. So, Harris concludes, it is morally irresponsible (indeed wicked?) to countenance refusal of such life saving measures. There are three problems with this argument: the proximity problem; the generalisability problem; and the valuation problem. My chapter concentrates on the third, but first I must refer briefly to the other two.



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The proximity problem arises from equating a failure to provide something that might save a life somewhere with the moral culpability of a direct refusal to save a life e.g. refusing to rescue a drowning person next to you even when the risks to you are minimal. This is a well-worn problem in ethics, and I am not aware that Harris applies his moral disapprobation consistently to himself – or indeed to any of us. To do so would be to live (and demand) a life of utter frugality in order to save hundreds of starving children. If this is his view, then, like Peter Singer,27 Harris should spell it out in writings about world poverty and the selfishness of us in the affluent West. Since – so far as I can discover – his moral outrage does not lead him down this path, he would seem to share the commonly held view that proximity does give us more immediate moral duties at least in some circumstances. This means that respecting the wishes of a dead relative of mine can reasonably outweigh the potential benefit to unknown others of harvesting his organs against his express wishes. Secondly, there is a generalisability problem. If my body (alive or dead) is just another material possession, why can’t it be more widely taxed for good causes? For example, should the removal of parts of the living be mandatory, if we can show that others’ need is greater? Why make live kidney donation optional, when the need is so great? (This seems an obvious step from Harris’s support of state ownership of dead bodies, and Cecile Fabre has made just this point, in a chapter of her book on justice and the integrity of the person, entitled ‘Confiscating Live Body Parts’.28) In the case of the dead, why stop at isolated organs or tissue, when the whole corpse could be useful? If bodily integrity is so relatively unimportant, why should we not capitalise more on the bio-resources in our midst by ecological recycling of corpses, and prevent the waste and damage entailed in burials (using land resources) and in cremations (polluting the atmosphere)? Harris does not appear to be willing to take his argument to these logical conclusions, yet he gives no reason for stopping at confiscation of the organs of the dead. This leads me back to the central concern of this chapter: the valuation of the body itself. I have been arguing that our moral evaluation of ourselves and others has a bodily dimension to it. It is difficult to articulate this clearly, since by singling out the body for attention one is already trapped in dualistic categories. For this reason, the term ‘embodied self’ seems to be the best description, since it captures the fact that all our knowledge of ourselves and of other selves is mediated bodily. That is why the human body is not ‘just another thing’ and why the treatment of it merely as a ‘resource’ is so morally offensive. For, by commodifying the body we commodify the person, and so cast doubt on the ‘value of life’. Of course, this view of the body does not commit us to treating it as some kind of sacred object. Many taboos about the body can get in the way of providing help to others (for example, taboos on touching some parts of the body). All it requires is a change in the calculation of proportionality of

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harms, and a recognition also that some of the harms can be social as much as individual. For example, a market in kidneys might be beneficial to the individual seller and individual recipient (were it truly possible to construct a non-exploitative market), but the social harm would be to authorise the view that the human body is merely a tradeable commodity. In the case of the dead body, the valuation offered by Harris, even in his more charitable writings, is too low. The dead body is a powerful symbol for relatives of the person they have lost. This is clearly seen in tragic situations when a body cannot be recovered. It is a virtually universal experience that it is much harder for relatives to let go of their emotional ties, when there is no body to say goodbye to. Images of the corpses of massacred soldiers or civilians being thrown into mass graves fill us with disgust, not only because of the injustice of their death, but also because of the contemptuous way they are treated after death. Certainly Harris, as we saw earlier, does not take the logical step of confiscation of the whole body, and so he might say that people can still experience the necessary mourning, even though the body they have returned to them is missing some parts. Yet, as the major controversy over the unconsented removal of organs post mortem illustrated, families are in fact distressed by this, and wish to have the option to refuse the removal of parts, even for the sake of saving other lives. In a more recent article,29 he and his fellow author, Antonia Cronin, do recognise this in a more respectful way than is evident in his earlier writings, but still for them the final conclusion may well be unconsented removal, if other means do not meet the shortage of organs for life saving purposes. I conclude that it is morally unacceptable to put a low value on honouring the wishes of the dead about what is done to their body or on the need of relatives to have the body treated with respect. The emotions involved in such situations should not be discounted as mere sentimentality and so of no importance morally. On the contrary, they reflect a deeper understanding of what it means to be human. Acknowledgement I am grateful to Voo Teck Chuan for assisting in updating the references in this chapter. Notes   1 I have dealt at greater length with some of the issues raised in this chapter in my book, The Body in Bioethics (London: Routledge-Cavendish, 2009), Chapters 1 and 6.   2 J. Harris, The Value of Life An Introduction to Medical Ethics (London: Routledge and Kegan Paul, 1985), pp. 119–20, 219–22; Wonderwoman and Superman (Oxford: Oxford University Press, 1992), Chapter 5.   3 J. Harris, ‘Organ Procurement: Dead Interests, Living Needs’, Journal of



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Medical Ethics, 29:3 (2003), 130–4; C.A. Erin and J. Harris, ‘An Ethical Market in Human Organs’, Journal of Medical Ethics, 29:3 (2003), 137–8.   4 J. Harris, ‘Law and Regulation of Retained Organs: The Ethical Issues’, Legal Studies, 22:4 (2002), 527–49.   5 Harris, ‘Organ Procurement’, 133.   6 H.E. Emson, ‘It is Immoral to Require Consent for Cadaver Organ Donation’, Journal of Medical Ethics, 29:3 (2003), 125–7, at 125.   7 F. Herbert, Dune (London: Gollancz, 1968).   8 S. Giordano, ‘Is the Body a Republic?’, Journal of Medical Ethics, 31(2005), 470–5.   9 Harris, Wonderwoman and Superman, p. 102 10 Harris, ‘Law and Regulation of Retained Organs’, 548 11 Ibid., 549. 12 M. Brazier, ‘Retained Organs: Ethics and Humanity’, Legal Studies, 22:4 (2002), 550–69, 565. 13 S. McGuinness and M. Brazier, ‘Respecting the Living Means Respecting the Dead Too’, Oxford Journal of Legal Studies, 28:2 (2008), 297–316, at 305. 14 A.V. Campbell and M. Willis, ‘They Stole my Baby’s Soul: Narratives of Embodiment and Loss’, in F. Rapport and P. Wainwright (eds.), The Self in Health and Illness: Patients, Professionals and Narrative Identity (London: Radcliffe Publishing, 2006), pp. 123–9. 15 J. Harris, ‘Gifting Organs is No Different to Their Sale’, Letter to the Editor, Guardian (5 December 2003). 16 G. Ryle, The Concept of Mind (London: Hutchinson, 1949). 17 A. Damasio, The Feeling of What Happens (London: Vintage, 2000), p. 22. 18 Ibid., p. 36. 19 R. Porter, Flesh in the Age of Reason (London: Penguin (Allen Lane), 2003), p. 294. 20 See M. Merleau-Ponty, Phenomenology of Perception (London: Routledge and Kegan Paul, 1962). 21 K.M. Hunter, Doctors’ Stories (Princeton: Princeton University Press, 1991). 22 E. Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford: Oxford University press, 1987), p. 35. 23 R. Richardson, Death, Dissection and the Destitute (London: Phoenix Press, 1988), p. 427. 24 N. Scheper-Hughes and Margaret M. Lock, ‘The Mindful Body: A Prolegomenon to Future Work in Medical Anthropology’, Medical Anthropology Quarterly, New Series, 1:1 (1987), 21. 25 Ibid., 31. 26 See further the chapters in Part II, especially chapter 10 above, Simon Woods, ‘Why We Should Save the Anthropocentric Person’. 27 P. Singer, ‘Famine, Affluence and Morality’, Philosophy and Public Affairs, 1:3 (1972), 229–43. 28 C. Fabre, ‘Confiscating Live Body Parts’, in Whose Body is it Anyway? Justice and the Integrity of the Person (Oxford: Clarendon Press, 2006), pp. 98–205. 29 A.J. Cronin and J. Harris, ‘Authorisation, Altruism and Compulsion in the Organ Donation Debate’, Journal of Medical Ethics, 36 (2010), 627–31.

13

Harris’s principle of justice in health care Ruth Macklin

Among his many writings on varied topics in bioethics, John Harris has stated a bold position on justice in health care.1 He states his basic proposition in the following principle: Each individual is entitled to an equal opportunity to benefit from any public health care system, and … this entitlement is proportionate neither to the size of their chance of benefiting, nor to the quality of the benefit, nor to the length of lifetime remaining in which benefit may be enjoyed.2

Harris contends that his view represents ‘the patient’s conception of benefit’, and is superior to ‘the provider’s or funder’s conception of benefit’.3 He claims that the latter position is ‘essentially a “public health” conception’, as it ‘sees the business of health care as maintaining and improving public health or the health of the community’.4 This is a rather narrow construal of a public health conception; a more nuanced view can incorporate considerations of justice in a scheme for allocating scarce medical resources. Harris contends that the ‘patient’s perspective’ may run contrary to maximising overall population health, since ‘each patient is entitled to have his or her benefit considered as of an importance equal to the chance of any other person, however small the chance and however small the benefit, so long as there is some chance of a benefit’.5 This is surely true; it is an example of a problem known as ‘fair chances versus best outcome’.6 Harris’s account of justice as equal opportunity is appealing because it focuses on the needs and desires of recipients of health care rather than on the cost-effectiveness that drives the policies of providers and funders. Money saved by a scheme that is more cost-effective than another scheme places only one value above others in contention. Harris’s account is also appealing because at least on one interpretation, it emphasises fairness – surely the central concept in any account of justice. Harris says that ‘some fair method of distribution is required. By “fair” is meant of course one that does not de jure or de facto treat some patients, some rival claimants for care, as more valuable or more important than others’.7 This latter state-



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ment is intended to reject ‘social worth’ as a criterion for setting priorities among individuals competing for a scarce resource, and with that I heartily agree. But the choice is not simply between Harris’s preferred principle and the one he refers to as ‘the provider’s or funder’s conception’. Other principles of justice compete with the somewhat simplistic ‘equal opportunity’ version that he endorses. Harris’s account works best when the context is making decisions or policies about individuals in need of health care in a clinical setting: patients awaiting surgery; persons requiring emergency treatment in a hospital; those awaiting entry into an intensive care unit. In these latter contexts, ‘first-come, first-served’ may be the operative principle. That is one way of operationalising the equal opportunity principle. Regardless of prognosis or severity of condition, first-come, first-served does not distinguish among patients awaiting clinical treatment. Among a large pool of patients whose place in the queue cannot be clearly determined, the best way of implementing the equal opportunity principle could be a lottery of some sort.8 However, for broad health-policy decisions, numerous complicating and contextual factors militate against this account. The key question is whether ‘the patient’s conception of benefit’ is the most relevant criterion, yielding the fairest method for setting priorities in situations of chronic scarcity in a health system. The remainder of this article discusses several competing principles of justice in addressing a situation of compelling need for policy makers in developing countries. The context is that of setting priorities for choosing among HIV-infected individuals who are potential recipients of antiretroviral drugs (ARVs) at a regional or national level in resource-poor countries ravaged by AIDS. Setting priorities for allocation of ARVs Nowhere today is there greater need to develop and apply a just system of allocating health care resources than in poor countries most affected by the world’s HIV/AIDS pandemic. As antiretroviral (ARV) drugs have become increasingly available in countries that could previously ill afford them, national leaders and health care officials still must grapple with the question of who should be treated first when universal treatment is far from becoming a reality. The global AIDS pandemic is a modern plague of gigantic proportions, devastating lives and decimating an entire generation in sub-Saharan Africa. It has also brought into sharp relief the wide disparity in access to beneficial treatment between the developed and developing worlds. Once life-prolonging treatment became available in the form of antiretroviral drugs, people living with HIV/AIDS in North America and Western Europe soon gained access to these medications. Although not every person in industrialised countries has had ready access, and although increasing numbers of infected individuals in resource-poor countries are being treated, the gap between rich and poor countries has remained enormous.

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What is required is a just system for allocating scarce ARVs to people in developing countries. Treatment remains a scarce resource in part because the drugs are costly (although prices have fallen dramatically in the past few years), in part because trained personnel are lacking in many parts of the developing world, and in part because those same places lack the infrastructure for HIV testing, administration of medications, ensuring continuity in the supply chain, and monitoring the health status of persons who receive ARVs. The question, then, is what are the features of an equitable scheme for allocating antiretroviral medications? What principle(s) of distributive justice are applicable, and what modifications might be necessary? Competing principles of justice Treat like cases alike Several prominent principles of justice are at least competitors, if not superior to Harris’s equal opportunity conception of justice. First we have to set aside the purely formal principle of equity: treat like cases alike. This is the basis for the requirement of non-discrimination: No one should be denied health care on the basis of arbitrary or non-relevant criteria. However, this formal principle does not state what the relevant and non-arbitrary criteria are. Therefore, it is necessary to employ substantive or material principles, that is, principles that provide criteria for choosing among individuals or groups that are relevantly similar,6 unless a lottery of some sort is to be used. It is, however, appropriate to invoke this formal principle in order to prevent discrimination against some infected individuals or groups, for example, those that are marginalised because their behaviour is illegal or antisocial or because of society’s prejudices. Examples of the latter in the HIV arena include people who inject drugs, sex workers, and in some cultures – especially in sub-Saharan Africa – men who have sex with men (MSM). Several substantive ethical principles can be viewed as competitors, giving different accounts of how antiretroviral medications (or other scarce medical resources) should be allocated. Each principle requires interpretation or modification from a ‘pure’ version and additional caveats may apply. Utilitarian principle Although a utilitarian principle is not typically construed as a principle of fairness, its major historical proponent claimed it to be the basis for claims regarding justice. John Stuart Mill wrote: ‘Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others are as a class’.9 In its most general form, the utilitarian principle calls for maximising overall societal benefits. Utility is sometimes understood as efficiency in reaching the goal of maximising societal benefits. Applied specifically to health policy, the principle aims at maximising health benefits for the society as a whole. The best policy would be one that embodies a mix of health care



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services that produces the greatest overall health effects.10 This is the position Harris characterises as ‘a public health conception’; but as already mentioned, there may be myriad ways of interpreting and applying a public health conception. In the context of providing ART to HIV-infected individuals, a utilitarian approach could call for treating the greatest number of people, even if some (e.g. the sickest) could benefit only temporarily before their overall health status worsens. On this view, health benefits would be maximised even though the sickest people would receive a small amount of benefit. This would appear to be consistent with Harris’s equal opportunity principle. On a different and more widely accepted interpretation of utility, maximising health benefits would mean giving priority to people whose medical condition is such that they respond better to treatment and are likely to survive for the longest time. This is the reigning public health view that Harris argues against. Adhering to this latter interpretation of the utilitarian principle would therefore exclude patients whose HIV disease has progressed to a point where only a temporary health benefit can be expected. This is an example of the ‘fair chances versus best outcome’ problem mentioned above. Harris would presumably argue that justice as equal opportunity requires giving everyone a fair chance at treatment, even if that option would not result in the best overall health outcome. Although the principle of health maximisation has widespread support in the public health literature, there are disagreements and uncertainties within the principle itself that need to be addressed and that have specific policy implications. Which benefits should be counted? Only the medical benefits of treatment for the individuals? Or other benefits, as well? This is critical in the context of HIV/AIDS in many developing countries. By 2004, health systems had begun to collapse under the weight of untreated AIDS.11 As a result, giving priority to health care personnel or groups vital for preservation of public order (police, maintenance workers, firefighters) has the additional benefit of ensuring that needed personnel are available to provide medical treatment and health promotion, among other services necessary for a functioning society. This is referred to as a public order factor that ‘focuses on the value of ensuring safety and the provision of necessities, such as food and fuel’12 and therefore acts as a constraint on a straightforward application of any principle for setting priorities. Similarly, treating factory workers rather than children or unemployed people produces economic benefits for the country, which in turn could be used to increase treatment access for more people. So it depends on whether ‘benefit’ is understood in term of health only or to wider societal benefits, as well. Treatment of HIV-infected individuals whose work is vital for maintaining public order must be distinguished by the ‘social worth’ criterion, which both Harris and I reject. Whereas the latter often includes past contributions of individuals to society, or people who are in prominent positions (e.g. bankers, celebrities), the principle of choosing those whose services

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are required for maintaining public health and safety is future-oriented. However, giving priority to more productive members of society would perpetuate the exclusion of individuals and groups who have historically lacked access to health care.13 One prominent position regarding prioritisation is that marginalised groups and those who have been denied healthcare benefits in the past should be given a higher priority for the opportunity to receive treatment (see section ‘Concern for the worse-off’, below). There is no agreement about the appropriateness of taking these types of considerations into account. There is, however, wide agreement that social worth measured in terms of financial wealth or social prominence is unacceptable as a criterion for giving first priority to individuals or groups. In addition, individuals or groups should not be denied access based on perceptions of their lack of social worth. If certain groups are to be given priority, justice requires that the reason for this is the anticipated secondary health or social goods that are produced, and not the inherent worth of the chosen groups.14 This is a straightforward consequentialist account, which should be attractive to consequentialists like John Harris. But giving deliberate preference for ARVs to any particular individuals or groups – based, for example, on the value of keeping them alive and healthy so they can help others who are sick – conflicts with the equal opportunity principle. Egalitarian principle The egalitarian principle is closest to what Harris describes as an equal opportunity principle of justice. Yet different versions of the egalitarian principle identify items for possible distribution beyond that of opportunity. An egalitarian principle may call for distributing resources equally among persons; it could specify goods to be distributed, such as health care services; or even seek to equalise health (suitably defined) among different groups. This could mean either that everyone should receive the same amount of resources for health care; or that everyone should receive the same amount of health care services; or that insofar as possible, differing health status among different groups should be minimised.15 This principle is the basis for schemes that emphasise health equity over maximisation of population health. The goal of one type of egalitarian scheme is to reduce disparities in health status among different groups or strata in society: the poor, women, people living in rural areas, ethnic or racial minorities, and others. This form of egalitarianism is arguably more robust than Harris’s version, as it goes beyond equality of opportunity and strives, to the extent possible, for equality of outcome. Indeed, it would likely conflict with Harris’s principle in some cases, since it may have to provide unequal opportunities in order for some to get closer to the health status of others. For example, people living with HIV/AIDS (PLWHAs) who also have tuberculosis and are malnourished would be given greater opportunities for health care services and allotments of food in order to bring their health status closer to PLWHAs who do not have other illnesses



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and are well nourished. A consequence of this last type of egalitarian scheme is that aiming at equalising health status will potentially divert resources to interventions that produce very small benefits for people who require enormous resources to obtain any benefit at all16 – a problem Harris mentions with respect to ‘resource guzzlers’ but does not address further in his article. The ‘life-cycle’ or ‘fair innings’ argument Another view is that justice requires taking into account age as a factor in determining who should receive treatment when not all can. Taking life expectancy into consideration employs one version of the ‘fair innings argument’, also called the ‘life-cycle principle’. According to this view, preference should go to the young rather than older groups, as the latter have already lived much of their expected life span and, therefore, justice requires giving those who have lived much less of their life so far a fair chance. A modification of this principle used in priority setting has been called ‘investment refinement of the life-cycle principle’. Authors of that position write: A pure version of the life-cycle principle would grant priority to 6-month-olds over 1-year-olds who have priority over 2-year-olds, and on. An alternative, the investment refinement, emphasizes gradations within a life span. It gives priority to people between early adolescence and middle age on the basis of the amount the person invested in his or her life balanced by the amount left to live.17

It is clear that neither the ‘pure’ version nor the ‘investment refinement’ version of the life-cycle principle can operate as the sole principle for setting priorities for receiving ARVs in countries with a high burden of HIV disease. If preference is always given to the youngest groups in society, it would conflict directly with the ‘public order’ principle. Especially in developing countries with a high birth rate, where a majority of the population is under 18, using the life-cycle principle in an infectious disease epidemic with high mortality would orphan many children and further skew the population toward the lower age group. Perhaps the ‘investment refinement’ version of the life-cycle principle, suitably modified by the ‘public order’ principle, could capture the values inherent in the ‘fair innings’ argument while still enabling the well-functioning of a society ravaged by an HIV epidemic. Concern for the worse off or the least advantaged (prioritarianism) This principle, a variant of the principle of justice put forth by Rawls,18 calls for giving preference to those who are worse off in some relevant respect. This view, known as prioritarianism, has been widely discussed in the bioethics literature in health policy. However, its status as a principle of equitable selection is open to debate. One leading proponent of the prioritarian view is Derek Parfit, who describes the relationship between egalitarianism and prioritarianism as follows:

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on the Priority View, benefits to the worse off matter more, but that is only because these people are at a lower absolute level. It is irrelevant that these people are worse off than others. Benefits to them would matter just as much even if there were no others who were better off. The chief difference is, then, this. Egalitarians are concerned with relativities: with how each person’s level compares with the level of other people. On the Priority View, we are concerned only with people’s absolute levels.19

In the context of health policy, prioritarianism is usually understood to refer to those who are worse off in terms of health status, but it could also apply to (a) the poorest; (b) the lowest socioeconomic class; (c) the most vulnerable (e.g. children, especially orphans); (d) groups that are marginalised or most discriminated against (in many societies, people who inject drugs, sex workers, MSM); or (e) those who live in remote areas with poor access to any type of health services. On what is probably the most common interpretation, the least advantaged are those who are the sickest, irrespective of how much they would benefit from treatment. This would mean that if patients in an advanced stage of clinical AIDS can still benefit from medication, they should be among the first treated. The consequence of this would be to divert resources away from people who could potentially benefit more from treatment. The result would be in direct conflict with a consequentialist, health maximisation principle. While Harris’s equal opportunity principle also conflicts with the health maximisation principle, Harris’s principle would not favour prioritarianism any more than a principle that chooses best prognosis as a criterion. On another interpretation, concern for the worst off would mean giving priority to those most in need, where need is understood as how badly off people would be if not treated; this is referred to as urgent need. ‘People’s medical needs give rise to moral claims to the health care resources necessary to meet those needs, ... equally urgent needs give rise to equal moral claims, and ... more urgent needs give rise to stronger moral claims.’20 According to this view, preference should be given to patients in urgent need of medication on the basis of how much they can benefit individually, treating the most needy first. Using this principle would result in treatment of comparatively fewer patients than using a straightforward utilitarian principle. There is no clear or obvious way of determining how much weight should be given to a principle that calls for giving priority to the sickest. On the assumption that giving first priority to the sickest is a reasonable ethical principle, the problem becomes how much aggregate health benefits should be sacrificed in order to treat the sickest first.21 Furthermore, with respect to who are the ‘worst off’, ‘most vulnerable’, or ‘least advantaged’ according to other criteria, considerable disagreement exists. Among those who may be considered ‘worst off’ are those who have been unable to protect



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themselves adequately in preventing acquisition of HIV infection. One such group is young women, who by the beginning of the second decade of the twenty-first century were at highest risk of becoming HIV-infected. The greatest number of new infections in sub-Saharan Africa occur among women aged 19–24. In male-dominated societies, women cannot refuse sex with a spouse or regular partner or insist that their partners use condoms; young women without any other financial means either resort to sex work or seek an older man who will support them in exchange for sex. Even if the women themselves do not have multiple sexual partners, many men with whom they have sex have other partners, thereby increasing the chance that the women will become HIV-infected. Another factor is what is referred to as the ‘time perspective of ‘worseoffness’’: ‘Is being worse off a matter of being in a bad state at a given point in time, or of having a bad prognosis, or of having had a poor history of health, or perhaps all of these, i.e. of having poor health as judged over a whole lifetime?’22 Eric Nord seeks to combine the prioritarian principle with the fair innings argument, which requires balancing total years of life and severity of illness. Another complication is how the ‘fair innings’ consideration should be calculated. Should it be determined by the life expectancy of the country in which the health policy allocations are to be made? In that case, for sub-Saharan Africa the figure would be much lower than, say, the United States or Western Europe. Or should the life-cycle principle be relativised to the particular disease or condition for which treatments are to be allocated – HIV/AIDS, for example, versus heart disease or diabetes? These variations remind us how extraordinarily difficult it is to determine what is the fairest scheme for setting priorities for allocating health care resources. Treatment for prevention As the HIV epidemic rages on, researchers have made great strides not only in developing effective treatments that have transformed HIV from a fatal infectious disease into a chronic condition; they have also made headway in various modes of prevention. One such success has led to a new dilemma: whether to begin early treatment with antiretroviral medications in infected individuals who do not yet need treatment for their own benefit, but would benefit uninfected partners by preventing HIV transmission. Here, as elsewhere, scientific and technical progress in medicine brings new factors into play in setting priorities. A landmark study published in 2011 demonstrated that when infected individuals were treated with ARVs soon after becoming infected, it produced a dramatic 96 percent decrease in HIV transmission to their uninfected sexual partners.23 The study was carried out in sero-discordant couples, not in the general population, so conclusions remain somewhat limited. Nevertheless, given the scarcity of ARVs (or money to purchase them), according priority to the sickest or most vulnerable would have little

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effect on the goal of prevention, which many argue is the only way that the epidemic can be successfully contained. Providing ARVs soon after individuals are discovered to be infected alters the medical criteria recommended earlier for beginning treatment. Instead of starting treatment at a time when it could prevent deterioration of HIV disease in infected individuals, which has been the standard until the results of the above-noted research, the new recommendation for starting treatment early was designed to prevent infection in others. This became known as ‘treatment for prevention’, or ‘T4P’. With this public health goal for setting priorities, the prioritarian principle (priority to the worse off) gives way to the utilitarian goal of maximising health outcomes. Thus Harris’s equal opportunity principle can be threatened by allocating scarce resources for prevention rather than for treatment in the context of the HIV epidemic. Negative consequences of the equal opportunity principle Harris contends that his equal opportunities principle of justice is ethically superior to what he describes as the ‘public health conception’. But he goes beyond the comparison of these two alternatives in his contention that ‘any system of prioritisation of the resources available for healthcare or for rationing such resources must be governed’ by his preferred principle.24 I have argued that applied to the problem of providing ARVs in poor countries devastated by HIV/AIDS, Harris’s principle could have unacceptable negative consequences both for individuals and for society as a whole. If some, suitably weighted, preference is not given to HIV-infected health workers, many other infected individuals who would be granted an equal opportunity for access to ARVs would not end up being tested, treated, or monitored because of a shortage of health care personnel. If some infected family members gain access while others are left awaiting their turn, that may result in their sharing the scarce ARV drugs, taking a less-than-effective regimen, thereby resulting in the growth of more drug-resistant strains of HIV. If the poor are not given first priority to receive ART free of charge or at nominal cost, the epidemic will continue to grow in those countries where some people can afford treatment but the majority cannot; equal access would not guarantee equality of outcome among different segments of the population and would likely increase health disparities between wealthier and poorer segments of society. Consequently (and consequentially), some modifications are needed in order to make Harris’s equal opportunities principle a sound approach to public policy for prioritising access to ARVs in resource-poor countries. This brief look at competing principles of justice suggests that equal opportunity is insufficiently nuanced to do the work required for a fair allocation scheme.



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  1 J. Harris, ‘What is the Good of Health Care?’, Bioethics, 10:4 (1996), 269–91; ‘Justice and Equal Opportunities in Health Care’, Bioethics, 13:5 (1999), 392–404.   2 Harris, ‘Justice and Equal Opportunities in Health Care’, 392–3.   3 Harris, ‘What is the Good of Health Care?’, 275.  4 Ibid.  5 Ibid., 289.  6 D.W. Brock, ‘Fairness and Health’, in C Murray, Summary Measures of Population Health (Geneva: WHO, 2002), 717–26.   7 Harris, ‘What is the Good of Health Care?’, 290.   8 Harris mentions both a lottery and a ‘properly conducted waiting list’ as fair methods for choosing among rival claimants. Ibid., 277–8.  9 John Stuart Mill, Utilitarianism, in M. Lerner (ed.) Essential Works of John Stuart Mill (New York: Bantam Books, 1961), p. 248. 10 R. Macklin, ‘Ethics and Equity in Access to HIV Treatment – 3 by 5 Initiative’, Background paper for the Consultation on Equitable Access to Treatment and Care for HIV/AIDS, Geneva, Switzerland, 26–27 January 2004. WHO/SDE/ ETH/2004.1. Available at www.who.int/ethics/en/background-macklin.pdf (accessed June 2014). 11 Consultation on Ethics and Equitable Access to Treatment and Care for HIV/ AIDS (Geneva: World Health Organization, 2004). 12 E.J. Emanuel and A. Wertheimer, ‘Who Should Get Influenza Vaccine When Not All Can?’, Science, 312 (2006), 854–5, at 855. 13 Macklin, ‘Ethics and Equity in Access to HIV Treatment – 3 by 5 Initiative.’ 14 Ibid. 15 Ibid. 16 Ibid. 17 Emanuel and Wertheimer, ‘Who Should Get Influenza Vaccine When Not All Can?’, 855. 18 J. Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971). 19 D. Parfit, ‘Equality and Priority’, Ratio, 10:3 (1997), 202–21, at 214. 20 D.W. Brock, ‘Separate Spheres and Indirect Benefits’, Cost Effectiveness and Resource Allocation (2003). Available at: www.resource-allocation.com/ content/1/1/4 (accessed 15 May, 2013). 21 D.W. Brock, ‘Ethical Issues in the Use of Cost Effectiveness Analysis for the Prioritization of Health Care Resources’, in G. Khushf and H.T. Englehardt, Jr. (eds.) Bioethics: A Philosophical Overview (Dordrecht: Kluwer Publishers, 2004); also in S. Anand and A. Sen (eds.) Ethical Foundations of Health Equity (Oxford: Oxford University Press, 2004). 22 E. Nord, ‘Concerns for the Worse Off: Fair Innings Versus Severity’, Social Science & Medicine, 60 (2005), 257–63, at 268. 23 M.S. Cohen, Y.Q. Chen, M. McCauley, et al. ‘Prevention of HIV-1 Infection With Early Antiretroviral Therapy,’ New England Journal of Medicine, 365:6 (2011), 493–505. 24 Harris, ‘Justice and Equal Opportunities in Health Care’, 393.

14

Eqalyty revisited Andrew Edgar

Introduction John Harris’s critical examination of QALYs was a pivotal intervention in debates over health care resource allocation in the 1980s and 1990s.1 The Quality Adjusted Life Year (QALY) is an instrument developed by health economists to measure the outcomes of health care. Along with information about the costs of treatments, the QALY can be used to indicate the cost efficiency of different treatments, in order to ensure that scarce health care resources are used to yield the maximum possible improvements to a population’s health status. While the bioethical debate over the QALY has abated markedly in recent years, the problem of the allocation of scarce health care resources remains, and quality of life measures (if not the QALY itself) continue to play a significant role in health care decision making (for example, in the assessment of the progress of individual patients, in recent trends towards evidence-based medicine, and in the promotion of new pharmaceutical products). The purpose of this chapter is to review Harris’s arguments in order to assess their relevance to the current understandings of quality of life measurement. It will be suggested that while quality of life measurement is by no means immune from criticism and that a number of Harris’s criticisms remain highly pertinent, he ultimately misconstrues its role and potential. In particular, it will be argued that, if properly understood, quality of life instruments can help to articulate questions that are fundamental to an adequate understanding of the problems of health care resource allocation. Harris on QALYs John Harris’s arguments are directed specifically at the QALY. While Harris treats ‘QALY’ as more or less synonymous with quality of life instruments as such, the QALY is in fact an early example of such instruments, of which thousands now exist.2 However, in its very simplicity it may serve to make



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clear certain problems with the measurement and conceptualisation of quality of life. The QALY – or Rosser-Kind index3 – is expressed in a simple matrix of 32 cells, each of which represents a different health state. One axis traces disability – crudely, the objectively observable effect of illness on a patient’s physical and social functioning and mobility – in 8 states, from no ‘disability’ to ‘unconsciousness’, passing through ‘severe social disability or slight impairment to work’, ‘unable to undertake paid employment’, and ‘confined to bed’ amongst others. The other axis is distress – the subjective experience of the condition – defined as ‘none’, ‘mild’, ‘moderate’ and ‘severe’, with these states being explained in terms of the form of medication required to repress the pain. Good or normal health is a state of no disability or distress, and scores 1, with states equivalent to death scoring 0. As the health state gets worse, the score is reduced. (Negative scores are allowed in the RosserKind index.) The weighting of each cell in the matrix is determined through public surveys, where interviewees are asked to evaluate the comparative burdens of two given health states (although in practice the Rosser-Kind matrix was part of a pilot study, and the weightings were achieved by interviewing a mere 70 health care professionals, patients and lay volunteers). The QALY allows the comparison of different treatments in terms of the impact that they have upon health states. The motivation for quality of life measurement comes, in large part, from the need to determine exactly what the output of health care is. The crude approximation that health care exists in order to save life is regarded as inappropriate for modern medicine.4 As medical science becomes more effective, and indeed as the general health of populations improves, more health care resources are put into improving the quality of patients’ lives, rather than into treating life threatening illnesses and injuries. Measuring life saving alone would lead to the neglect of important interventions, including the treatment of chronic but not life threatening conditions (such as arthritis). The QALY may thus be seen as a first attempt to meet the challenge of measuring both the life that medicine adds to years as well as the years it adds to life (to paraphrase the WHO slogan). In calculating the efficacy of a treatment, one takes statistical data on the condition of sufferers from a given disease or injury, both before and after treatment, along with the time typically enjoyed in the improved, posttreatment condition; one finds the scores of the two states on the QALY matrix; and finally the difference between the scores, multiplied by the years in the improved state, is calculated. That gives the number of QALYs yielded by the treatment. Dividing this figure by the cost of treatment gives what is technically known as the ‘cost-utility’ of the treatment. One can thus demonstrate, for example, that kidney transplants are a more cost effective use of scarce resources than are dialysis programmes.5 Given the scarcity of resources available to health care systems, QALYs seem to provide a mechanism for ensuring that those scarce resources deliver as much beneficial impact on the overall health status of the population as possible.

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Harris forcefully argues that the QALY leads to fundamental injustices, most particularly of ageism, but potentially also of racism and sexism, as well as in a tendency to deprive the worst-off in society of health care, at least if the worst-off are defined in terms of their severe and irremediable medical conditions. In order to understand Harris’s criticisms, the basic strands of his argument may now be rehearsed. Harris may be seen to be making two basic criticisms against the QALY. The first is that it involves a spurious attempt to compare the life experiences of different people. Harris’s point is that what matters, and indeed, by implication what can be communicated or made public, is whether or not an individual wants to go on living. Initially he argues comparisons of QALYs are irrelevant, because all that matters is the fact that two candidates for health care want to go on living ‘equally fervently’.6 However, this formulation opens the possibility that degrees of fervency may be significant, and that the more fervent the desire for life, the more deserving of health care those holding the desire would be. Harris’s claim is that there can be no public measurement of such personally experienced degrees of fervency, or indeed by implication degrees of quality of life. If fervency and quality of life are not publicly communicable, then they are not publicly comparable. Put otherwise, it is the recognition that I cannot extrapolate from the value that I place on my life (or more pertinently, the quality of life I experience in a given health state) to the value or quality that you might enjoy, even in a comparable state.7 There is no possibility of an objective measure against which our subjective experiences can be compared, or through which our subjective experiences could be predicted. The second criticism is that, even if comparison were possible, it would not justify the step from differences in quality of life to differences in value of life. That is to say that the QALY approach presupposes that a higher quality of life automatically entails that the person capable of achieving that quality has greater value, and thus has a preferential claim on health care resources, to someone incapable of such improvement. This, for Harris, violates the equality principle, which is formulated after Dworkin as the supposition that ‘the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves’.8 The underlying reason for this is that the QALY approach does not value lives, and thus the individuals who live those lives. Rather it values QALYs.9 The more QALYs there are the better, even if these QALYs are enjoyed by fewer people. The QALY thus comes up against the familiar problem with all consequentialist approaches to justice: how can one decide between ten people enjoying an extra 2 QALYs each, and one person enjoying 20 QALYs? The ageism inherent in QALYs is explained, from this basis, on the grounds that if the QALY approach privileges those with the capacity to yield not just a better quality of life but also more years of that life, then the young are, all other things being equal, advantaged. Again, it is not



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the person that is respected, but merely the capacity of that life to yield QALYs.10 Similarly, if it could be established that certain diseases with poor prognoses (or indeed merely expensive treatments) are confined to one sex or to a particular racial group, then that sex or group will be disadvantaged in the scramble for health care.11 Finally, if the worst-off in society are indeed those with a conditions that are resistant to treatment, or that are excessively expensive to treat, then use of the QALY again would tend to move resources away from them, compounding their misfortune in what Harris has called ‘double jeopardy’.12 Harris’s arguments have been contested, not least by those involved in developing and applying the QALY, such as Alan Williams.13 However, my purpose is not to offer a comprehensive rehearsal of old arguments, but rather to explore lines that continue to be of relevance to our understanding of health care provision. This entails looking, on the one hand, at the precise and diverse uses to which quality of life measures have been put, and on the other, at issues centring around the design of quality of life instruments, in order to understand the implications that QALYs have for understanding health and the relationship between health and quality of life. QALYs, individuals and cultures Harris dramatises the injustices inherent to QALYs by typically presenting them as being used to decide between two (or more) individuals, who are competing for a fixed supply of health care resources. Hence: ‘in order to prioritise care, the casualty officer in the accident and emergency department must know precisely the life expectancy before and after treatment and the quality of life … of every casualty she sees, and she must know it immediately’.14 While highly dramatic, this does not accurately represent the intended application of QALYs. The QALY is not designed to differentiate between individuals in order to determine their access to health care. Rather, it is a planning tool, that guides the policy maker in determining how best to meet the anticipated health care needs of a population, given inevitably finite resources. Put otherwise, planning guided by QALYs will determine in advance whether suitable health care resources are there to treat the individual patient, and this planning decision can be made before patients are even aware that they will need treatment. QALYs work, not with concrete individuals, but with population averages. Harris acknowledges something of this by noting that ‘QALYs are designed more to help officials – from doctors, through health authorities right up to governments – than they are to help patients’.15 The question here is whether or not this is, as Harris suggests, the source of the problem of QALYs. In order to explore the role that the QALY has in health care planning, and its implications for the individual, one may begin with the role of QALYs in marginal analysis. Harris notes the appeal made to marginal analysis by health economists.16 The argument is that QALYs are designed

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to evaluate only additional resources made available to a health care system, and not the system as a whole. The position would be something like this: a health authority has new funds available; in order to decide where the funds will be deployed, the health services manager will look at the QALYs that might be generated by deploying those funds to different medical units. The manager seeks to maximise the beneficial outcomes of investing the funds available, and QALYs are taken as a proxy of beneficial outcome. QALYs are thus concerned with fine-tuning at the margins of an existing service. Assume that £1 million is made available to expand physiotherapy facilities in the authority, and that this is chosen over possible expansion of a neo-natal unit (for, although treating the young successfully generates many QALYs, the unit treats few successfully, and the cost per QALY is therefore high). This entails that when Harry is involved in a serious car accident he can undergo a full regime of physiotherapy, and so make a complete recovery. Sadly, pre-mature baby Irene dies, for the unit cannot provide the specialist treatment that she needs. Even given the fact that I have rigged the example to exclude the problem of ageism, it still suggests that QALYs are indifferent to the value of life, as Harris argues. Surely, Irene’s life should be a higher priority for a health service than Harry’s mobility? There is indeed an important issue here about the grounding values of any health service, and more specifically, the question of whether or not cost efficiency should be the over-riding priority. For the moment, it is sufficient to suppose that efficiency must at least be one factor in deciding how a health service is structured. Of more immediate significance is the planner’s perspective. Planning makes possible the provision of health care. The health care system cannot be understood, as I suspect that Harris understands it, as a bundle of pre-existing resources that can be immediately mobilised towards any particular patient. Patients typically need specialist resources – equipment and personnel. If the resources are not ready in advance, then the patient will be denied optimal treatment. Without the extra £1 million Irene would still die and Harry would have impaired mobility. Irene’s life cannot then simply be understood as a life that needs saving. It is rather a life that might be saved through the use of highly specialist skills and resources. Irene’s life can only be saved within a certain medical culture and organisation. The availability of specific medical technologies and skills, and the willingness to deploy them, is required. Had Irene been born fifty years earlier there would have been no possibility of saving her at all – the technology and competence would not have existed. One might still argue that, given the possibility today of investing in resources that might save Irene’s life, the planner made the (morally) wrong decision, but again this is the question of the trade-off between efficiency and other moral values, to which I will return. For the present, the point of these reflections is merely to suggest that QALYs should be not understood in terms of individuals. Rather, the evaluation of the justice of QALYs entails a recognition that those individuals are necessarily social beings,



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and that their well-being depends upon the medical and administrative culture within which they live. This does not entail a passive resignation to the whims of that culture, but it does raise the possibility that QALYs are designed to reflect that culture, and that their legitimacy or illegitimacy as planning tools lies precisely in that reflection. Designing QALYs It was noted above that the QALY is in fact an early and rather primitive example of a quality of life measure. More precisely, it is an early example of a global health status index. A measure is global if it is not tailored to a specific disease. It is an index if its assessment of quality of life can be expressed in a single number. In contrast, profiles express an individual patient’s quality of life in series of numbers, corresponding to different dimensions in the experience of illness and disease. Indexes are the tool of health economists and thus of health care managers and policy makers. Profiles are psychometric tools, typically designed to complement physiological measures of a patient’s health, albeit that such tools may be used as much to demonstrate the efficacy of a treatment (e.g. in a drug trial) as the improving well-being of a given patient. While the core moral problems lie with the use of indexes, much can be learnt from examining the construction of profiles, not least because of the more subtle psychological and sociological assumptions that ground their construction. Consideration of the greater sophistication of ‘post-QALY’ quality of life instruments will serve to highlight the possibilities that such instruments pose for democratic interventions in resource allocation. It was noted above that the QALY matrix is defined through two dimensions: distress and disability. Other instruments typically have more dimensions. The McMaster Health Index Questionnaire has a mere three  dimensions (physical function, emotional function and social function); SF-36 has eight; the Nottingham Health Profile has thirteen (physical mobility, pain, sleep, energy, social isolation, emotional reactions, employment, social life, household work, sex life, home life, holidays, and interests and hobbies).17 Different instruments thus highlight different aspects of the experience of health and illness. What is important about this is that instruments are typically developed through public surveys. Statements about health and the impact of health on everyday activities are gradually distilled into the set of dimensions. Thus, even before their use, such instruments provide a snapshot of lay understandings, experiences and concerns about health. However, the very multiplicity and diversity of quality of life instruments begin to highlight the problem of pinning down exactly what quality of life is. Different instruments will operationalise ‘quality of life’ differently, raising the problem of determining the objectivity of these instruments. The weighting of the health states defined within quality of life instruments is, like the derivation of their dimensions, grounded in public

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c­onsultation. This leads to a problem that was recognised even with the original pilot work on the QALY, that different populations will give different weightings.18 Kind, Rosser and Williams found, for example, that the sub-groups of nurses, doctors and patients gave quite distinct weightings and thereby expressed different understandings of the beneficial nature of health care. A political problem is thus posed, insofar as it matters who one asks to weight the items within the instrument. A further problem occurs with the methods used to achieve this weighting. There exist a series of psychometric techniques for establishing that weighting. For example, in order to weight a given health state, the interviewee might be asked: ‘How much shorter a life in good health would you still find preferable to a longer lifetime with the disability or distress you are ranking?’ (in the technique called ‘time trade-off’); or: ‘What risk of death would you accept in return for being assured that if you did survive you would be entirely cured?’ (‘standard gamble’).19 Different techniques will lead to different results, so compounding the problem inherent in operationalising ‘quality of life’ itself – establishing the objectivity of a given instrument. At this point I want to side-step the quality of life researchers’ preferred answer to this question: the appeal to estimates of the viability and reliability of instruments. I would tentatively suggest that instruments that operationalise ‘quality of life’ differently and weight it differently can score similarly in terms of these criteria. So, rather than addressing this point, I will turn to a series of basic assumptions made by quality of life researchers. The crucial assumption, deliberately implied in my own formulation of a problem of establishing the objectivity of an instrument, is that there exists a quasi-natural (psychological) object called quality of life prior to its measurement. The quality of life instrument is metaphorically a subtle ruler or micrometer, and as such is an instrument that is designed to measure as accurately as possible a pre-existing psychological state. Quality of life, as a set of understandings and evaluations of health states, is assumed to be already present in an interviewee’s consciousness, and to be awaiting extraction by the appropriate method. Harris has, if my interpretation of him is correct, already reacted to this assumption, by insisting on the incommensurability of subjective psychological states. If our evaluations of quality of life are subjective, or more precisely, if our evaluations are based upon our unique and personal experiences and anticipations of health states, then it is not immediately clear how they can be treated as objects available for comparison according to a publicly recognisable scale. I share Harris’s position that if quality of life is subjective, then there would be something problematic about its public measurement and comparison. However, it may also be argued that the real problem lies, not in treating a subjective state of consciousness as a publically quantifiable object, but rather in the very assumption that quality of life is subjective. If this assumption can be challenged, then something potentially radical to our understanding of the place of quality of life research in its application to health care allocation follows.



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In my hypothetical cases of Harry and Irene, I suggested that the problems of resource allocation can only be properly understood if it is recognised that individuals act within a social context. This more social understanding is reflected, to some degree, in Menzel’s contractarian approach of a ‘QALY bargain’. 20 In brief, Menzel asks that the implications that weighting health states has for resource allocation are made explicit to those doing the weighting. Thus, it becomes clear that in preferring a shorter healthier life over a longer life in significant discomfort for myself, I am also expressing a preference for a shorter healthier life for you at the expense of my longer survival in discomfort. Menzel’s approach grounds health care resource allocation in public consultation, so that the results of QALY bargain survey effectively ground a social contract for health care. Yet this leads to relativism if the QALY bargain merely makes explicit the pre-existing evaluations that are current within the community, without offering any scope for critical reflection upon those evaluations. Explored further, it may be suggested that Menzel shares the epistemological presuppositions of other quality of life researchers. He assumes that evaluations pre-exist measurement, and that the core problem to be addressed is that of finding an accurate survey technique.21 This approach can be challenged by suggesting that quality of life research does not entail applying a measuring instrument to a pre-existing object, but may rather be understood as an interaction between social subjects in which an understanding of health and illness is constituted. The very request to respond to the QALY questionnaire may indeed be the first stimulus that the respondent has ever had to consider the issues of health and quality of life. Even if the respondent has previously considered quality of life, the particular instrument and research programme may re-shape and re-direct the more or less inchoate reflections they have made. This entails recognising that the very process of constructing quality of life instruments, both in the establishing of relevant health dimensions and in weighting the resultant items, is interactive and thus constitutive of the very experience it purports to measure. Evaluations of health states would not then be subjective states that pre-exist measurement, nor yet psychological objects. They would rather be understandings negotiated in the process of responding to quality of life questionnaires, be it at the stage of design, or in the application of the finished instrument. This suggestion begins to outline a reply to Harris’s concern about incommensurability. If quality of life is not a subjective state at all, but the result of an intersubjective negotiation, then the problem of incommensurability need not arise. At the core of this negotiation lies the question of how one understands and evaluates health, and the place that health has in the pursuits of everyday life. To respond to this question, one does not turn to purely subjective mental states, but rather to the resources that one’s culture makes available. Such resources will indeed include personal experiences of health and illness, but more significant may well be the images of health

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and illness that one has received through witnessing the illnesses of relatives and friends, and the reports and narratives of the experiences of others in newspapers, television dramas and novels. A concern with the experience of illness may be compounded by an awareness of political discussions about the condition of the health services, or reports and rumours about new threats to health. All of these ideas and images will be couched in a complex web of metaphors and illusions (e.g. the ‘fight’ against cancer; the ‘superbug’ of MRSA) that are deeply embedded in ordinary language. It may be suggested that quality of life measures do not then elicit subjective states. They articulate the complex resources current within a culture, and that help the respondent to shape their reply. If there is anything in this argument, then it must be recognised that this cultural stock may include misunderstandings and prejudices concerning diseases and their sufferers. These prejudices would include not merely the ageism that Harris fears is inherent in the quality of life measure itself, but also any misconceptions about disability, psychiatric illness and chronic illness that may be widely entertained within a community. It is precisely such prejudices that lead to a violation of Harris and Dworkin’s equality principle, as the voices and protests of specific individuals and groups are silenced or ignored. This, in essence, is the problem of relativism that is inherent in Menzel’s QALY bargain – that it merely reproduces prejudice and misinformation. If the QALY is to serve critical and democratic reflection on the social conditions of resource allocation, then this relativism must be challenged. This can only be done if the intersubjectivity and cultural constitution of quality of life measurement is made explicit. Weightings, and indeed definitions of health and health care concerns, can then cease to be treated as givens – as quasi-natural objects – and instead be regarded as the starting point for rational debate about the place of health and health care allocation in the pursuit of individual and communal lives that will be of value. In sum, this is to suggest that quality of life instruments may perform a vital role in making explicit a communal understanding of health, but only if this understanding can then be challenged by all who are affected by any resultant allocation of resources. Those who perceive that their values have been given insufficient emphasis in these understandings of health and distributions of health care must have the opportunity to protest, for example through the exercise of legally instituted rights, and to give reasoned arguments in defence of their position. Allocation would not then be a mere snapshot of current beliefs and prejudices, shaped by the prevalence and distribution of given values within the population as a whole, but rather the result of rational challenges and justifications that would aspire to rest upon the force of better argument.



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Harris’s concerns over both the incommensurability of individual quality of life and the illegitimacy of the step between quality of life and the value of life are answered if the methodology of quality of life research is made appropriately aware of its intersubjective nature. If the very term ‘quality of life’ refers not to subjective states but to intersubjective achievements, then there is no problem of the incommensurability of individual qualitative experiences. Similarly, if these intersubjective achievements are not treated as sacrosanct givens – as the end of the research process – but rather as the articulation of otherwise diffuse social processes that still demand critical reflection in a moral and political process, then the legitimacy of the move from quality of life to value of life is established in that critical process. This also leaves open the possibility that criteria other than efficiency may be of prime importance in a community’s health care. Irene may be saved, for although physiotherapy may be more cost-effective in the generation of quality of life, concern for the vulnerable new born may express a more profound self-understanding of the community’s moral agency. Once the link between quality of life and value of life is re-established as part of a deliberative democratic process, then the mere fact that physiotherapy generates a higher aggregate of QALYs may be insufficient to justify the shift of resources away from other vulnerable patients. Notes   1 See J. Harris: ‘QALYifying the Value of Life’, Journal of Medical Ethics, 13 (1987), 117–23; J. Harris, ‘Eqalyty’, in P. Byrne (ed.), Health, Rights and Resources: King’s College Studies 1987–8 (London: King Edward’s Hospital Fund for London, 1988), 100–28; ‘More and Better Justice’, in J.M. Bell and S. Mendus (eds.) Philosophy and Medical Welfare (Oxford: Oxford University Press,1988), 75–96; ‘Double Jeopardy and the Veil of Ignorance – A Reply’, Journal of Medical Ethics, 21:3 (1995), 151–7.   2 See S. Salek (ed.) Compendium of Quality of Life Instruments (Chichester: John Wiley, 1999).   3 R. Rosser and P. Kind, ‘A Scale of Valuations of Status of Illness: Is There a Social Consensus?’, International Journal of Epidemiology, 7:4 (1978), 347–58.   4 R. Rosser, ‘The History of Health Related Quality of Life in 10 ½ Paragraphs’, Journal of the Royal Society of Medicine, 86 (1993), 315–18.   5 P.V. Stange and A.T. Sumner, ‘Predicting Treatment Costs and Life Expectancy for End-Stage Renal Disease’, New England Journal of Medicine, 298 (1978), 372–8.   6 Harris, ‘Double Jeopardy and the Veil of Ignorance’, 151.   7 Harris, ‘Eqalyty’, p. 103.   8 Harris, ‘More and Better Justice’, p. 75.   9 Harris, ‘Eqalyty’, p. 104. 10 Ibid., p. 106.

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11 Ibid., pp. 107–8. 12 Ibid., p. 109. 13 See A. Williams, ‘QALYs and Ethics – A Health Economist’s Perspective’, Social Science and Medicine, 43:12 (1996), 117–32. 14 Harris, ‘Double Jeopardy and the Veil of Ignorance’, 156. 15 Harris, ‘More and Better Justice’, p. 79. 16 Ibid., pp. 82–3. 17 R.G. Brooks, Health Status Measurement: A Perspective on Change (London: Macmillan, 1995), pp. 33–4. 18 P. Kind, R. Rosser and A. Williams, ‘Valuation of Quality of Life: Some Psychometric Evidence’, in Michael W. Jones-Lee, The Value of Life and Safety (Amsterdam: Elsevier, 1992). 19 P.T. Menzel, Strong Medicine: The Ethical Rationing of Health Care (New York: Oxford University Press, 1990), p. 85. See also A. Bowling, Measuring Health: A Reivew of Quality of Life Measurement Scales (Buckingham: Open University Press, 1997), pp. 14–15 and Brooks, Health Status Measurement, pp. 71–84, for fuller discussions of these methodologies. 20 Menzel, Strong Medicine, pp. 85–6. 21 Ibid.

15

The safety of the people and the case against invasive health promotion Andreas Hasman

Introduction In his ‘The safety of the people’ argument, Harris draws on Thomas Hobbes’s original position on the legitimacy of sovereign power, to defend a contemporary state’s moral obligation to ensure the provision of health care to its citizens.1 This chapter explores how the argument lends itself to a recent change of emphasis in health policy, which I shall refer to as ‘invasive health promotion’. This development is characterised by: • An understanding that the state must not only combat disease but also actively eliminate determinants of illness and disability. • A belief that unhealthy lifestyle choices and social and health inequalities are the principal preventable causes of ill health and disability, and that the state should eliminate these determinants. • A conviction that citizens have an obligation to act in ways that minimise the risk of disease to themselves, and the state can legitimately enforce a ban on certain practices and lifestyle choices when incentives prove insufficient in eliminating them. The changed emphasis in policy making gives rise to a number of questions. Most importantly: what is a proper role for a modern state in health care; or more specifically, are there health policies that the state cannot legitimately enforce, even if doing so will maximise aggregate health gains in society? These are the exact questions Harris addressed in ‘The safety of the people’. In the current policy climate, which is marked by a renewed focus on state intervention in public health, it is relevant to re-examine his conclusions, and in so doing, to assess a further question: does the state’s obligation to protect its citizens extend to protection against the choices they make for themselves? This chapter argues that, even if there is a legitimate role for the state to play in health care provision, that role does not extend to include invasive promotion of public health.

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From ethics to policy and practice The safety of the people

In Chapter 30 of the Leviathan, Hobbes focuses on the purpose of the office of the sovereign power. For Hobbes, the office of the sovereign: Consisteth in the end, for which he was trusted with the sovereign power, namely the procuration of the safety of the people; to which he is obliged by the law of nature, and to render an account thereof to God, the author of the law, and to none but him. But by safety here, is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself.2

To Hobbes, the legitimacy of the sovereign is therefore linked to a moral obligation to protect the lives, liberty and private property of his subjects; the obligation is reciprocated, however, as the subject is also obliged to obey the sovereign. Only the subject who obeys the sovereign is entitled to protection and ‘[t]he obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them’.3 Harris argues that nation states are the obvious contemporary equivalent to Hobbes’ sovereign power, but that the modern relationship between a state and its citizens is more complex. What constituted sovereignty in Hobbes’ days was a leader’s power in battle and his capacity to protect subjects from enemy invasion. Today, Harris argues, defence is not sufficient to constitute a state. Threats to individuals will, in a contemporary context, not only mean violent aggression from without, but also threat to health and welfare from within; a legitimate state must therefore protect the health and abilities of its citizens in addition to their life and property. In order to do that the state must provide a number of services, such as health care, which previously may not have been considered the state’s core responsibility. Harris finds justification for expanding the obligations of the state in two principles that, arguably, figure prominently in contemporary thinking about medical ethics and social justice in health care. The first of these principles is ‘the rule of rescue’. Harris understands this as a moral imperative to safe life and preserve health when capable. Traditionally a rule of rescue has been seen to only apply to individual action, but based on Hobbes’s argument Harris wants it to also apply to the state. It is an imperative on the state to rescue the life and health of its citizens because it is through protecting (or saving) life and health that the state gains its legitimacy, and because, in many cases, it is only the state that has sufficient means to launch a rescue operation. In those cases people will die, or be left in a poor state of health, if the state does not respond to their plight. It may even be illegitimate for the state not to save them. The second principle on which Harris draws to justify state provided health care is ‘equality’, which he defines as a basic ‘requirement that to each person is shown the same concern and respect as is shown to any’.



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The state which only responds to a need for protection from those who are threatened by aggression from an external enemy, and neglects a very similar call from those who face different (but equally serious) threats to their life and health from disease and disability, will not be showing the same degree of respect and concern to all its citizens. It will, in effect, exert unjustified discrimination and will violate the ethical principle of equality. In order to avoid this, Harris argues, the state’s activities can legitimately be extended to include, at the very least, health care, but potentially also, for example, social services (for people who are threatened by poverty), education (for people threatened by their social inheritance), and transport (for people threatened by their inability to get around). Some people may object to this use of Hobbes’s argument to justify state provision of health care and contend that getting sick is very different from a threat on life or property from an external enemy; their claim may be that illness is simply some citizens experiencing shorter lifetime or poorer quality of life due to natural bad luck, and that the state cannot be morally obliged to rectify bad luck. Harris’s response to this objection is that although it is bad luck to fall ill in the first place, it is in most cases not getting proper treatment that eventually kills people (or seriously damages their health). Being denied treatment is, in other words, enemy action and that is the real threat. The state has a moral obligation to protect all its citizens against this kind of threat in the same way it has an obligation to protect them from physical aggression. What is not immediately obvious from Harris’s argument, however, is why a rule of rescue and the principle of equality apply beyond the situation where life is under immediate threat. It may be possible to agree with Harris that it is imperative for the state to equally protect citizens whose lives are under threat from ill health, but still disagree with him that the state should also try to protect the health of citizens whose lives are not under immediate threat. If this contention is right, the extent of the state’s legitimate activities in health will be rather more limited than the extent of most public health care systems’ current engagement. Invasive health promotion In recent years, some clinicians, commentators and policy makers have argued strongly for a reorientation of publicly funded health care.4 They have contended that the traditional perception of the role of health care systems as primarily accommodating for the sick is outdated;5 and that the state and professions should also more actively prevent disease and improve health in the general population.6 Their approach has typically reemphasised classic public health objectives of promoting health by combating the causes and determinants of ill health, such as unhealthy lifestyle choices and social inequities. However, where health promotion in the past involved giving information as its principal intervention, the new approach often proposes more radical action. Its proponents have grown

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increasingly ­ dissatisfied with the ineffectiveness of non-invasive means, and are inclined to accept that proactively forcing choices on people, either through selective bans or through heavy taxes on certain practices, is necessary if those at risk do not (or will not) listen to repeated health warnings. A particularly influential expression of the argument in favour of ‘invasive health promotion’ comes from the European Union. When David Byrne, then European Commissioner for Health and Consumer Protection, launched a reflection process on the EU’s health policy strategy in 2004, the fundamental argument put forward was that: Europe should take positive action to avoid ill health in the first place. Proactive, forward looking, long-term measures to promote good health are needed. The time has come for a change of emphasis from treating ill health to promoting good health […] The EU must empower citizens to make healthy choices and involve them in policy-making from the start.7

This was only the latest initiative in what has now turned out to be a much wider attempt to redefine public health. Commissioner Byrne found that the challenges currently facing health care planners – such as for example an ageing population, growing problems of obesity, tobacco consumption and sexually transmitted disease – are best (or most efficiently) tackled through a coordinated approach to public health planning, which involves legislation as a prominent component. Effective health promotion is, he argued, a prerequisite for long-term prosperity in the European Union and the legislator should play the key role in this – involving the public only at policy level. Byrnes wrote: Europe increasingly suffers from lifestyle related diseases triggered by an unbalanced diet, physical inactivity, smoking or alcohol abuse. This means that citizens’ health is, to a great extent, determined by individual choices on what people eat, smoke, drink and do […]. By increasingly putting EU policies at the service of good health, we bring Europe closer to its citizens and help them enjoy longer, happier, more productive lives […] Enabling citizens to make the right choices is indispensable.8

Commissioner Byrne’s paper, which was later reflected in the strategic health policy approach for the EU,9 leaves the impression that there is a moral obligation on citizens to act in ways that minimise the frequency or severity of disease; either because this is in their own best interest, their fellow citizens’ best interest, or in the interest of the state. There is a moral duty on them to make the ‘right’ choices for themselves and for others, which justifies the state in using coercive measures against them if they choose not to comply. In a number of countries, policy makers have introduced legislation that is in line with Byrne’s thinking, and introduces invasive public health policies. Concrete action includes taxes on fatty and sugar rich foods, restrictions



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on some types of TV advertising, and bans on smoking in public places, such as hospitals, schools, cinemas, restaurants and bars, public transport, and in all private and public workplaces. All these policies are, at least in part, attempts to alter personal lifestyle choices through legislation. Those defending this type of interference with personal freedom have in many cases argued on utilitarian grounds that invasive health promotion leads to better outcomes, i.e. less illness or more equality of health in the population, and is therefore morally justified. They could however, look towards the Hobbesian/Harrisian argument for further support in moral terms, and even argue that the state is failing in its responsibilities if it does not interfere with individual behaviour that is somehow harmful. The limits to legitimacy In societies that are built on freedom, individual responsibility and market economy it has traditionally been left to individuals to decide what quality of life means to them – and, with respect for other individuals’ right to do the same, to adjust their lifestyle accordingly. Harris’s argument, that the state can legitimately protect the individual against threats from within, such as illness, does not imply that the state obligation to protect its citizen goes as far as to protect them against themselves. Such an argument would indeed defy the very essence of Hobbes’s notion of legitimate sovereign power. When Hobbes writes ‘But by safety here, is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself’,10 he identifies the individual’s freedom to choose his or her own perception of what constitutes the good life as the very thing the state has an obligation to protect. To claim that there is an obligation on the state to ‘protect’ citizens against a threat to health posed by, for example, lack of will power, undue indulgence and laziness seems nothing short of absurd. Hobbes’s (and indirectly Harris’) argument is therefore clear: as long as one’s lifestyle choices do not impinge on others, they should be protected and not prevented, even if some of those choices have detrimental consequences for those making them. It may well be, however, that the recent policy initiatives, which I have called ‘invasive health promotion’, already take account of this aspect. Those defending a proactive state in health have thus repeatedly argued that some lifestyle choices do in fact infringe on other people’s freedom to choose lifestyles for themselves. Smoking is again the key example. Research has established that exposure to passive smoking is a definite cause of disease in non-smokers,11 and based on a Harrisian argument it will be justified for the state to act in ways that protect non-smokers against tobacco smoke in places where they work or where their presence is compulsory for other reasons (public offices for example); what it does not mean, however, is that a ban to prevent smoking is necessarily legitimate. To make

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this point clear, consider the similarities between the ban on smoking in public places and the ban on drink driving: in the same way as driving under the influence of alcohol is illegal because a ban improves road safety, rather than because alcohol is bad for your health, the primary reason for banning smoking in public places would be to improve the working environment in bars and restaurants, and not directly to prevent smoking. A blanket ban is not the only way to achieve this (unlike the ban on drink driving). The important implication is that if bar owners can ensure the safety of their staff (e.g. through proper ventilation), or agree to compensate their staff for the additional health cost, smoking should not be banned from their premises, unless of course owners make a voluntary decision to implement such a ban. Harris’s argument does therefore not support a blanket ban on smoking in public places although it makes it legitimate for the state to enforce a legal requirement on the owners of public places to protect nonsmokers against the threat of tobacco smoke. In this chapter I have attempted to put the case against invasive public health promotion based on John Harris’s application of Thomas Hobbes’s argument on the legitimacy of sovereign power. An obligation on the state to protect its citizens against perils from within, as well as from without, will not necessarily serve as an appropriate moral foundation for state interference in individual lifestyle choices; even when these choices are harmful to the individual who is making them. Notes   1 J. Harris, ‘The Safety of the People’ (Unpublished manuscript, 1999).   2 Thomas Hobbes, Leviathan (1660) (Oxford: Oxford University Press, 1998).  3 Ibid.   4 World Health Organization, The Fifth Global Conference on Health Promotion: Bridging the Equity Gap, Conference report (World Health Organization, 2000). Available at www.who.int/hpr/NPH/docs/mxconf_report_en.pdf (accessed November 2004). D. Wanless, Securing our Future Health: Taking a Long-Term View (Final Report) (London: HM Treasury, 2002). Public Health Whitepaper: Choosing Health – Making Healthy Choices Easier (London, Department of Health, 2004).  5 D. Wanless, Securing Good Health For the Whole Population (London: HM Treasury, 2004).  6 RACGP, The Role of General Practice in Prevention and Health Promotion, (Melbourne: The Royal Australian College of General Practitioners, 2006).   7 David Byrne, Enabling Good Health for All (European Commission, 2004), pp. 7 and 9.  8 Ibid., pp. 8, 9, and 8.  9 Commission of the European Communities Together for Health: A Strategic Approach for the EU 2008–2013 (2007). Available at www.ec.europa.eu/ health-eu/doc/whitepaper_en.pdf (accessed August 2013). 10 Hobbes, Leviathan.



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11 P. Vineis, L. Airoldi, P. Veglia et al., ‘Environmental Tobacco Smoke and Risk of Respiratory Cancer and Chronic Obstructive Pulmonary Disease in Former Smokers and Never Smokers in the EPIC Prospective Study’, British Medical Journal, 330 (2005), 277–82, at 277.

16

Could we reduce racism with one easy dip? What a thought experiment about race-colour change makes us see Margaret P. Battin

Because John Harris is so fond of philosophers’ thought experiments, let us try one that might help us think a bit more clearly about race. Here goes… We already dye our hair different colours and can change the colour of our eyes with contact lenses. But imagine something new: a temporary, reversible skin dye that changes the colour of the skin – the whole skin, all at once, in one easy dip. Perhaps it’s some sort of vegetable dye; perhaps it’s some new chemical process; but whatever it is, it’s temporary, harmless, and wears off in a week or so. You just need to dip into a bath of it for a few minutes, perhaps at your beauty parlour or your health club or maybe in your own bathtub, or swallow some pigment-changing pills, or perhaps there’s some sort of radiant pigmentation-alteration process that can be done with special lights in a converted tanning bed. Whatever it is, you can be white this week, Native American next week, Asiatic the week after that, then darkest African, and then back to white. You can start out black, turn the olive colour of Mediterranean peoples, be white for a while, then go back to black. These dyes come in various shades, perhaps with suggestive designer titles: ‘Pocahontas’, ‘Genghis Khan’, ‘Louis Armstrong’, and so on. Skin colour can be changed at will. Thus skin colour may not mean as much as it seems to now, and we could all have some sense of what it’s like to be different colours at different times. The question, then, is what this might tell us – all of us, of all skin colours of the various regions of the world – about the ways in which we categorise ourselves by race. It is a thought experiment, of course, not a proposal or the announcement of some new product; we cannot do it yet, and cannot even see exactly how it might work. Yet we should not get stuck on the technical challenges of skin colour change, and whether for instance it would be easier to go from light to dark skin tones than the other way around, or whether lighter or darker tones might be more subject to topical irritation or systemic side effects. It also would not alter other race-linked morphological traits, like eyelid shape, lip contours, or structure of the nose. Nor would it alter other race-associated physiological and psychosocial traits, like postural patterns



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exhibited in newborns or like the tendency of Zinecantan women in southern Mexico, descendents of the Mayan population, to keep their arms close to their sides,1 or patterns of racially coded dress, speech, and so on. It may fail to address the most serious problems of race prejudice. But for altering skin colour, just imagine that it works – easily, quickly, effectively, without inconvenience, side effects or substantial cost. Just one easy dip will do it – and it is temporary, harmless and wears off in a week. Of course, there are true accounts of real people who have been involved in skin-colour modification for racial change. In Black Like Me, John Howard Griffin narrates the story of his taking a skin-darkening medication in order to understand the South’s racial situation and what it would be like to be black. The year was 1959. ‘Do you suppose they’ll treat me as John Howard Griffin, regardless of my color’, he opened his experiment, ‘or will they treat me as some nameless Negro, even though I am still the same man?’2 A decade later, in 1969, Grace Halsell, a freelance journalist who was a presidential aide in the White House and at home in the most influential circles in Washington, did the same thing: inspired by John Howard Griffin (with whom she consulted), she took a similar medication in order to explore the commonality of white and black, ‘“how much we are all alike”, I asked myself’, she says in her account Soul Sister, ‘How could I be sure I understood this feeling [of commonality] unless I passed as a Negro in the South – and in Harlem – and subjected myself to the same problems that a Negro woman must cope with day in and day out?’3 Fictional accounts also treat issues of race identification. For example, Philip Roth’s The Human Stain portrays a man whose social origins are black but – although he does not use skin lighteners – casts himself as white. Mark Twain’s Pudd’nhead Wilson4 is a fictional account of ‘passing’, and Nella Larson’s Passing is a novel exploring the same theme. However, ‘passing’ involves taking advantage of ambiguous colouration to cast oneself as a member of one racial group rather than another, and the experiments of Griffin and Halsell involve white-to-black darkening to explore specific social issues. The thought experiment to be pursued here imagines something much more radical: the possibility of thoroughgoing skin-colour change, in any direction, to or from any hue, at any time. It does not trade on preexisting ambiguities or on white-to-black darkening alone, but imagines the possibility of deliberate, at-will, complete (though temporary) transformation in the perceived colour of one’s entire body from any one ‘racial’ shade to any other. This thought experiment then works by inviting us to think about why someone might engage in skin-colour change, and further explores our intuitions about what might be problematic about some or all of these uses. They are arrayed in order from the more obvious to the more far-fetched.

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From ethics to policy and practice The potential uses of skin colour change

Combating prejudice First, and perhaps most obviously, a person might want to ‘dip’ into a different skin colour to defend himself or herself against prejudice. Because people with some skin colours are sometimes (indeed, often) seen as inferior to people with other skin colours, the person at risk of being the target of prejudice might want to change colour in order to avoid, or at least minimise, the prejudice. In some regions, this will mean changing dark skin to light skin; in other regions, it may be the other way around. To be sure, changing the colour of the skin does not change other morphological features associated with race, and these still might make the person a target of prejudice, but the immediate, visually based prejudicial reaction – ‘uh, oh, he’s black’ – that is at the core of racism may be somewhat undercut. Whether it would be morally appropriate for a person to use this defence against potential prejudice in this way remains to be explored. Suppose you are a (black) student in a class with a racist (white) professor, who you are certain will give you undeservedly low grades. You have two choices: drop the class (but take the case to the university administration), or change colour for the duration of the semester. Clearly, the situation is indefensible, but it is not clear that making use of an alternative choice is indefensible as well. Enhancing status Closely related, a person might want to ‘dip’ into a different skin colour to enhance his or her status, whether social status in general or status within specific institutions or spheres. Doing so counteracts generalised racial prejudice, as distinct from the individual racial prejudice of the professor in the previous case; but unlike the previous case there is no alternative in avoiding the prejudice, analogous to dropping the class, other than removing oneself from the racist society altogether and moving somewhere else. Enhancing status by changing colour may be seen as avoiding the harms imposed by prejudice, or it may be seen as utilising a distinctive strategy for augmenting one’s position in a competitive society even if one’s earlier position was not so bad. Would it be morally appropriate for a person to try to enhance her status by changing race-colour? Suppose you are white but, in the society in which you live, higher status and good connections, not to mention admission into the golf club, go to Asians. Would it be wrong for you to use a dose of ‘Madame Butterfly’, at least until your position in this society is a bit more secure? After all, we are already familiar with hair colour changing strategies both for combating prejudice and for enhancing status: dyeing out the grey counteracts ageism, and blondes, it has long been claimed, have more fun. Is skin colour changing just the same sort of practice writ on a larger scale?



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Pursuing jobs or professions Jobs often come colour-coded, whether officially or not. While Pullman porters are no longer routinely black and Rockettes dancers always white, some jobs are still race-associated. Not only do black actors play Othello and impersonators of every colour play Elvis, but racial or ethnic groups are sometimes strongly associated with certain trades, jobs, or professions. For example, Africans and Middle Easterners are frequent among taxi drivers; Korean grocery store owners have been ubiquitous in Manhattan. Because these social groupings are often extremely tight and inbred, race-related appearance may play a major role in one’s ability to get or keep a job. Let us say you are Morroccan, but the local hodcarrier’s union in the country in which you live is heavily controlled by Turks. A dip of ‘Ataturk’ will not make you look completely Turkish, but it will make you look more nearly Turkish than you now do. Or you are a blues player in the South – you play a soul-rending guitar immersed in the anguished traditions of racial prejudice and mistreatment that gave rise to the blues; the trouble is, you are white. Would a dip of ‘John Lee Hooker’ or ‘Buddy Guy’ increase your billings in the clubs?5 Facilitating social interaction If race-estrangement or race-suspicion builds on perceived dissimilarity when a person of a different race is seen as ‘other’,’ social interaction might be facilitated, and social bonds strengthened, if a person dips into a skin colour that matches those with whom he or she interacts. Is this man a white teacher at an all-minority school? Why not go a few shades darker, so that the children are less wary of his authority? Is this woman a white doctor, practising in a minority community? What if she were to deepen her skin tones during the work week in the interests of achieving better communication with her patients? If she is doing a residency in the Indian Health Service, might she try ‘Maria Tallchief’ or ‘Sitting Bull?’ and if she’s practising among Alaska natives, how about a dip into ‘Nanook of the North’? Of course, colour change need not be from one ‘racial’ group to another: the cameo Caucasian might add a few olive tones when socialising with people of Italian ancestry; the person of African ancestry with the slightly lighter skin tones of one coast might darken up a bit when working with people from the other. Socially adaptive skin colour change, it might be supposed, would be particularly useful when traveling in other countries among other peoples: one might use a dip of ‘Genghis Khan’ for travel in Mongolia, ‘Bushido Warrior’ or ‘Chrysanthemum Princess’ for travel in Japan, and only subtly different shades for travel in China or Korea. In more serious circumstances, socially adaptive race-colour change might take the form of self-protection in times of racial conflict, allowing one to change from, say, Dravidian to Mughal or Tutsi to Hutu, or vice versa, in ways that could save one’s life.

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Pursuing cosmetic and aesthetic interests Somewhat more far-fetched, perhaps, a person might want to try a different skin colour for largely cosmetic or aesthetic reasons: to enjoy the glistening blackness of a west-African skin colour, to sense the almost porcelain fragility of a light-Han Chinese skin, to experience how far-north, ruddy northern European whiteness feels in contrast to the slightly darker tones of middle western-European whiteness of the sort you’d find in, say, France. Some of these cosmetic and aesthetic interests might be exploratory – seeing how, for example, different skin colours fit with one’s facial structure, body shape, and other physical characteristics. Of course, cosmetic and aesthetic uses of skin-colour change might be hard to anticipate, since the perception of skin colour and ‘fit’ with other bodily characteristics – including other race-associated characteristics like eyelid shape, jaw structure, lip fullness, hair texture, eye colour, etc. – is so heavily subject to social conditioning. Artistic and aesthetic challenges might include questions about whether kinky black hair can ‘go with’ northern-European white skin or Japanese Asiatic skin, or whether copper-red hair is enhanced by or clashes with, say, highland-Peru mahogany skin and bright-blue eyes. Aesthetic judgments like these are not now often at issue, when it is not possible to alter one’s skin tone much beyond the skin/hair/eye colour combinations that occur naturally, but might be a ripe source for discussion – and the exercise of vanity – in the future. Would there be anything wrong with your experimenting with skin colour in these ways? We can even imagine fads and fashions in skin-couture – this year it is ‘Harry Belafonte’, next year it may be ‘Monteczuma’ or ‘Queen Liliuokalani’ or the peaches-and-cream whiteness of ‘Shirley Temple’, and the year after that it may be a couples’ thing for skin-colour pairings, like ‘Dido and Aeneas’ or ‘Antony and Cleopatra’. Exploring self-identity In what may seem the most far-fetched of these reasons, a person might want to take on a different skin colour to explore issues of identity and indeed self-identity. Say you are born ‘black’ but think of yourself as really white. Or say you are one-half Cherokee and were raised to identify yourself that way, but want to explore what it would be like to be the other half of your ancestry, whether it is black, white, Asian, or simply a different Native-American tribe. Persons of a third skin colour, neither black nor white, might experiment with seeing which co-dominant group, black or white, they felt more at home with in highly segregated areas like small towns in the southern US or polarised communities in, say, the Middle East. One might try to attain a more nuanced sense of identity even within a ‘racial’ group, as for instance an African-American cycling through ‘Eartha Kitt’, ‘Harry Belafonte’, and ‘Louis Armstrong’ to discover just how ‘black’ he or she feels. Self-identity might also involve closer identification with the central



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figures of one’s causes. Religious conversion might be accompanied by outward manifestation of identity with the iconic religious figure: though these would be of course conjectural recreations and no doubt subject to inter- and intradenominational squabbling, one’s new baptism could involve a dip into ‘The Buddha’ or ‘Muhammad’ or ‘Jesus of Nazareth’, a way of making one’s new, reborn self outwardly visible. Strengthened commitment to various political causes might involve a dip of ‘Black Panther’ or ‘Subcommandante Marcos’ or ‘Mao’. In general, what colour change permits in general is exploring what is really me, where I need not assume that my birth-colour is the skin tone that actually suits me best or that should permanently define who I am. The moral issues in skin colour change These examples or reasons for dipping into skin colour change range from the more obvious to the more far-fetched – roughly from prudential reasons to aesthetic reasons to something that may range from recreational to deeply introspective reasons. They may also seem to range from the only moderately problematic to the deeply unsettling. In all of them, however, there is something, I think, troubling about the very concept of skin colour change – especially the sort of temporary, casual, multidirectional skin colour change this thought experiment employs. Of course, we are already familiar with some efforts at body colour modification – some black people use skin lighteners6 and some white people go to beaches or to tanning parlours – but these are largely ineffectual approximations of the complete, though temporary, skin colour change we are exploring here. Blackface and whiteface are costume cosmetics, not real attempts at skin colour change. The question we must face, I think, is exactly what is disturbing about real – though temporary – skin colour change, and what does this tell us, if anything, about racism and racist thinking here and now. The question is not intended to offend anyone, but it is intended to probe assumptions about ‘race’ that are, I think, inadequately challenged. Consider the following: a student changes colour to avoid a bad grade from a racist professor; a community resident changes colour to socialise better and get into the golf club; a worker seeking union membership changes colour to appear more acceptable; teachers, doctors, and tourists change colour to match those they are among; an artist or an aesthete experiments with altering personal appearance to challenge conventional norms of beauty; and a person committed to deeper, more reflective selfunderstanding changes colour, perhaps again and again, to explore just who he or she is in the world. What is wrong, if anything, with any of these changes? It may seem that they involve a kind of deception, an attempt to disguise who a person really is. But we can imagine much more flagrant instances of race-colour deception, from those involving violation of protected categories – say, the person interviewing for a position reserved under

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an affirmative action program or a scholarship designation for people of a specific minority group, who changes colour to appear eligible – to those involving evident criminal intent, like the bank robber recorded on camera who changes colour to elude the police. We can also imagine clearly sympathetic race-colour alteration, as when a person changes colour even slightly – say Tutsi to Hutu or vice versa – to avoid racial slaughter. Flagrant deception or self-protection of either of these extreme sorts is not, I think, the issue here; it is the intermediate cases that raise the ethically interesting issue. The question is whether there is some other form of deception also at work, and whether it is ethically permissible. Consider these possibilities: (1) You have a blind date with a young woman who, you are told, is Asiatic. You decide to be Asiatic-colour on the first date, but if all goes well you plan to be African-colour next week for second date to see if she still likes you under other circumstances. You will be Latin American-hued when you take her out to dance the salsa, but palest northern-European Caucasian much later on, if all goes well, when you go to meet her parents, your prospective in-laws. (2) You are a writer, working on a massive, multigenerational novel about the South during the time of the Civil War and following. When you are writing about white characters, you make yourself white; when you are writing about black characters, you make yourself black; and when you are writing about the biracial offspring that arise from intrigues and relationships between characters who are white and black, you make yourself a variety of in-between shades to match the characters you are creating in your mind. (3) You are a delegate to an international nongovernmental organisation concerned with employment conditions in the developing world. You adopt a kind of compromise skin tone, not too light, not too dark, not really clearly identifiable as of any particular national origin. Critics say you are pandering, but you say you want to communicate that you have the interests of all the world’s peoples in mind. Is there a kind of deception going on here, albeit not so extreme as to involve violation of legal categories or criminal intent or, at the other extreme, a desperate effort to save one’s life? Does this form of intermediate race-change still involve a kind of misrepresentation that is morally suspect? Received normative views and developed intuitions are not likely to be of much use here, since it has not been possible in the past (and still is not yet) to engage in the kind of thorough skin-colour changing envisioned here. At issue is whether a person is somehow ‘really’ a specific colour, and if so, whether it is somehow dishonest to change it. This might be called the issue of ‘race integrity’. Is there, or should there be presumed to be, such a thing as ‘race integrity?’ Would it be wrong to ‘violate’ it, and if so, exactly



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what would the ‘violation’ consist in? This is not just the issue of what racial colour a person was when born or what the relationship is between a person and his or her genetic parents, but whether race-identity is somehow basic. Is race-integrity a central principle in the maintenance of social solidarity among human groups, and hence desirable, or is it fraudulent, primarily the pretext for friction and abuse? It is important to note that this question arises even if one’s ontological account of race involves racial scepticism, the view that races do not (really) exist, or any of the various forms of racial constructionism, views that hold in various ways that race-identity is socially ascribed and acknowledged within a social system, or population naturalism, the view that race is a biological product of partial reproductive isolation, resulting in differing frequencies in human population groups of a variety of heritable traits – of which skin colour is only one.7 Whether race is a fiction, a social construction, or a biological category, it is still socially observable, and the question here is whether there is something problematic about shifting away from one’s ‘basic’ racial appearance. Racialism, the underlying view that there are heritable characteristics shared by some groups within the human population but not others that make it possible to classify persons into distinct races, is, as Anthony Appiah argues, not in itself a doctrine that must be dangerous; what is dangerous are the racist inferences drawn from it,8 and they usually involve the further assumption that if there are differences in races, race hierarchy is appropriate: some are better than others. The slightly different but still potentially racist claim our thought experiment challenges on all versions of race ontology is this: whether specific ‘racial’ origins and racial groupings, real or constructed, entail that there is some specific body colour this person really is now, whatever his or her temporary surface appearance may be. The question of ‘race integrity’ we must face is the question of whether there is something dishonest about changing that colour, some sort of ‘race integrity’ it would be wrong to betray – whether that is a fiction, a social construction, or a biological fact. The race-hierarchy version intimates further that there is something especially suspect about shifting from a ‘lower-status’ race-colour to a ‘higher-status’ one; but the question remains even beyond this particularly racist version. It is socially-observable visual appearance that is at issue here, and whether there is something wrong about disguising, modifying, rejecting, or simply shifting in and out of one’s ‘true’ colour. This is an issue on any theory of race, at least as long as the kind of reply that was given to John Howard Griffin to the question above is still possible: the question he had asked about whether, if he changed his pigmentation from white to black, they would still treat him as John Howard Griffin. This was 1959: ‘You’re not serious’, he was told, ‘They’re not going to ask you any questions. As soon as they see you, you’ll be a Negro and that’s all they’ll ever want to know about you’.9 We have seen mild versions of the body-colour-integrity assumption in the past with respect to hair colour. The Clairol advertisements of the 1960s

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and early 1970s, for example, which pictured a woman and her child with the identical colour of hair – ‘only her hairdresser knows for sure’ – reinforced the notion that it would be somehow unseemly were it known that she dyed her hair. We have abandoned that assumption now, and women – and men – routinely dye their hair without embarrassment or pretence, including quite unnatural colours like blue and purple that could hardly be mistaken for the real thing. But changes in skin colour, even if temporary, are far more thoroughgoing, and a far greater challenge to the notion of body-colour-integrity than changes in hair colour. Yet this raises the central issue: is such a notion of ‘race integrity’ a simple by-product of the fact that it has not been technically possible to change race-colour in any way beyond crude skin-lighteners and suntans, or is race colour a central, defining, inprinciple-unalterable feature of a person, even if it can be tampered with or concealed in practice? So what if skin colour were like hair colour – a component of physical appearance that could be routinely changed at will, that one could use tactically, or recreationally, or in exploratory self-discovery, and that were furthermore cheap, easily available, and presented no technological or economic obstacles? This is not just to suppose that race colour might be seen as no more important than eye colour, as Richard Wasserstrom famously imagined – ‘an irrelevant category’10 – but that one could shift through the various skin colourations that are associated with race. This would be to unmoor colour from the concept of race, and to change that initial visual perception (‘uh, oh, he’s black’) on which much racism appears to be built. Would racism devolve into more careful inspection of eyelid, lip, and nose shape, hair texture, and bodily structure traits that cannot be casually changed in an effort to divine the ‘real truth’ about a person’s race? Or would the concept of ‘race’ collapse altogether, leaving only a welter of generalisations about morphological traits like femur length, orbit structure, pelvis shape, and whether the lingual surfaces of the incisors are spatulate (as in people who are white and black) or shovel-shaped (as in people who are Asian)11 that may identify ancestral origins but are lost within the much greater range of biological and genetic variability within each group? I like to think it would be the latter and that the thought experiment we are performing here could contribute to the undoing of traditional categories of race, but I worry that if it is the former, it will reveal that we remain far more racist than we like to think. Are we – all of us, of all hues – still far more racist than we may like to think? True, there may be much more open intermarriage among people of different ancestries in the global melting pot, and there may be less social disapproval of what used to be called miscegenation as people of different racial backgrounds come together, but notice this: in performing this thought experiment, we still associate each of the names we know – from Louis Armstrong to Harry Belafonte to Shirley Temple – with a quite specific shade of race-colour. Even when a figure stands so far back in history



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that we do not have reliable, direct records of his or her skin colour – Muhammad or Jesus of Nazareth, for example – or it is disguised in some way, as Subcommandante Marcos’s ski mask covers his entire face, we still know what would be involved in trying to determine what these figures’ ‘true colour’ was or is. Is this further evidence that we think of skin colour and hence race as somehow essential in an individual’s identity? What we discover about our own degree of entrenched racism may raise one further issue as well: the question of whether a thought experiment can also pose a technological imperative. If our thought experiment here makes us think that, since skin colour could be changed at will, we would turn to other visually evident race markers – eyelid shape, hair texture, etc. – and that these would then form the basis for perpetuating the forms of race discrimination and race prejudice already with us, perhaps nothing is to be done; we can expect to remain mired in these ethically indefensible social practices. But if our thought experiment leads us to think that by unmooring colour from race and making it possible for individuals to engage in colour change as they like, the whole notion of ‘race’ as a ‘basic’ category might collapse and real conceptual change might occur, would this not produce a kind of technological imperative? Would this not mean we should support whatever biological and technological research might make the possibility of skin colour change a reality? After all, if this simple possibility of being white this week, black next week, native-American or Middle Eastern or Asian or Oceanic-colour the weeks after that, could really undercut that assumption on which racism is based – that colour identifies what a person really is – it would be an enormous contribution to a deracialised interaction among individuals and among the peoples of the world. Acknowledgements Thanks to Brooke Hopkins, Mary-Jane Forbyn, Ron Mallon, Erica George, Chandran Kukathas, Leslie Francis, Cynthia Stark, and discussions with several groups of faculty and students at the University of Utah. Notes  1 P.M. Greenfield, Weaving Generations Together: Evolving Creativity in the Maya of Chiapas (Santa Fe, NM: School of American Research Press, 2004).   2 J.H. Griffin, Black Like Me (Boston: Houghton Mifflin Company; Cambridge: The Riverside Press, 1960, 1961), p. 5.   3 G. Halsell, Soul Sister (New York and Cleveland: World Publishing Co., 1969), p. 11.   4 Mark Twain, The Tragedy of Pudd’nhead Wilson (1894).  5 See J. Rudinow, ‘Race, Ethnicity, Expressive Authenticity: Can White People Sing the Blues?’, Journal of Aesthetics and Art Criticism, 52:1 (1994), 127–37. J.O. Young, ‘Should White Men Play the Blues?’, Journal of Value Inquiry, 28

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(1994), 415–24. P.C. Taylor, ‘… So Black and Blue: Response to Rudinow’, Journal of Aesthetics and Art Criticism, 53:3 (1995), 313–16.   6 I would like to acknowledge Amina Mire here.   7 R. Mallon, ‘“Race”: Normative, Not Metaphysical or Semantic’, Ethics, 116:3 (2006), 525–51.  8 K.A. Appiah, ‘Racisms’, in D.T. Goldberg (ed.) Anatomy of Racism (Minneappolis, MN: University of Minnesota Press, 1990), reprinted in L. May and S.C. Sharratt (eds.) Applied Ethics: A Multicultural Approach (Englewood Cliffs, NJ: Prentice-Hall, 1994), pp. 333–44, quotation p. 334.  9 Griffin, Black Like Me, p. 5. 10 R.A. Wasserstrom, ‘On Racism and Sexism’, in R.A. Wasserstrom Today’s Moral Problems (New York: Macmillan Publishing Co., 2nd edn, 1979), p. 78. Wasserstrom’s own thought experiment, while extraordinarily influential in discussions of race, overlooks one important difference: skin colour is used (in race-conscious societies) to identify people at a considerable social distance, while detecting eye colour can occur only within a reasonably intimate visual zone. You can not see eye colour across the street or even across the room, and thus eye colour could not serve the person-segregating role that skin colour has. It is, however, possible to imagine, as Wasserstrom does, a culture in which ‘race would be largely if not exclusively a matter of superficial physiology; a matter, we might say, simply of the way one looked’ [p. 77]; this is the assimilationist ideal of a nonracist society. 11 S.N. Byers, Introduction to Forensic Anthropology (Boston: Allyn and Bacon, 2002), p. 161.

17

Against mumps, Meursault, McDonald’s and Marlboro: on the immunisation of children against smoking, alcohol and drugs Inez de Beaufort Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so. (Douglas Adams)

Prohibition revisited? Imagine that as a child John Harris had been immunised against alcohol, nicotine and drug (ab-)use. He would not find any pleasure in using these substances. I am sure his arguing skills were already extraordinarily strong from the moment he could talk, but probably not his taste for alcohol so could he have protested? Would it have been justified to prevent him from enjoying drinking a Barolo or Pan Galactic Gargle Blaster? (Whilst I am unable to envisage a teetotaler John, I do not mean to suggest that he drinks too much. He does not. I know because I drink as much as he does, allowing for the differences in the male and female digestion of alcohol).1 Suppose a state proposes a vaccination against Smoking, Alcohol and Drugs, the SAD programme. (Mutatis mutandis many of the arguments would be similar if the debate were on some sort of genetic manipulation aimed at the same results.) A total immunisation scheme is imaginary, though not totally unrealistic. On purpose I have included alcohol. Many alcohol users would ban smoking, but strongly oppose banning alcohol. There are important differences (passive smoking), but also interesting similarities that they would rather not acknowledge.2 I will do some slippery sloping to say something about gambling, gluttony and obesity. From an individual, as well as a public health perspective, immunisation seems the ideal solution to many problems related to unhealthy lifestyles. Do children not have the right to be protected against serious dangers to their health? No more preventable diseases and death, costly health ­education, clinics for the addicted (well, probably they would be filled with internet-junkies), drug-related crime, cold turkey suffering, and hangovers. The costs would be different compared to those in abolition days: as the

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particular pleasure itself is lost, one is not interested in illegal procurement of the substances. Why do I feel uncomfortable? The mumps argument The SAD report argues: ‘We provide children with a vaccination against mumps, measles, polio etc. We also want to protect them against SAD’. Can immunisation against SAD be compared to the vaccination against diseases? One could argue that smoking itself is not a disease; rather it is an unhealthy habit or part of a lifestyle that causes diseases. Smokers enjoy smoking. Alcohol drinkers enjoy drinking. Therein lies the difference with mumps. The mumps argument may be compared to protecting people against HIV or other sexually transmitted infections by eliminating their interest in exchanging bodily fluids. (So that leaves only virtual sex.) If there were non-dangerous cigarettes with the same sensation (a miracle restricted to films such as Woody Allen’s Sleeper where everything that was unhealthy suddenly is healthy), many smokers might gladly trade those for the old dangerous ones. Now, however, to prevent the risks one has to abstain from the pleasure altogether. There are some kicks sought because of the danger attached to them – mountaineering, anonymous unprotected sex in dark rooms etc. – but I very seriously doubt that smoking is among them. It is too simple to say SAD use is a disease like mumps and that therefore immunisation is justified. (I take for granted here that people will think it justified to vaccinate (their) children against dangerous or even life-­threatening diseases). But, so one could argue, smoking is based on a nicotine addiction, and addiction is the disease. The addiction argument One rarely hears a parent say: ‘I really hope my child will become an addict just like me’ (perhaps chocoholic parents excepted). One does not want one’s children to become addicts to SAD. Addiction can cause emotional and social misery, and can lead to terrible diseases and/or early death. ‘Being addicted is a disease and therefore the SAD program is justified’, as the report says. We want to protect children from becoming addicted’. It does not matter what you are addicted to, the addiction itself is considered to be the disease. This also simplifies the issue. One can be addicted to many things: love in general, a certain person, chocolate, coffee, tea, shopping, work, gardening, gaming, the internet, television, sex, gambling or even physical exercise (or in the unlikely case that one has the time and the energy, all of these; one has to realise that a coffee and tea addiction is highly unlikely). Some addictions are worse than others. There may even be good or socially useful addictions (workaholics and jogaholics).



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But is this not too loose a description of addiction? One cannot really, for example, be addicted to jogging. ‘Addiction’ should not be another way of saying one likes something very much (‘I’m addicted to ice cream’); it is a serious condition in which a person’s whole life is reigned by the craving for a certain activity or substance. But even then one would have to admit that addiction to work, shopping, coffee, gaming or gambling can be ‘real’ addictions. It is too easy to exclude the ‘healthy or socially accepted’ habits or substances (chocolate, coffee or work). Is it addictions, for instance to drugs, that seriously change people’s personalities, that ought to banned? In that case workaholics probably would have to be included, and smokers may be excluded. This could be countered by arguing that only those addictions that lead to physical illness and early death are candidates for immunisation. But why limit oneself to physical illness if other addictions can also cause a lot of misery and unhappiness (e.g. gambling or gaming addictions)? In short: where to draw the line? This will be very complicated. A further serious problem for the addiction argument is that not all SAD users will become addicts. The gourmet smoker Some people smoke moderately (I will call them the gourmet smokers), or drink moderately, enjoying the pleasure but not running the same risks as the heavy drinkers. So they should not be prevented from having such choices. It is more difficult to argue this way in favour of drugs, although some argue an equivalence exists in a restriction to soft drugs that can be used occasionally, recreationally and without addiction. If all children were immunised it would be impossible to become a moderate enjoyer. Proponents of the SAD program could argue that because one cannot know beforehand whether a child will become a moderate drinker, the chance that he or she might become addicted ought to be prevented anyway. Therefore even moderate smoking and drinking should be fought. Is it up to me to decide? ‘I wanted to decide about this myself’ a person in SAD-country could say. The SAD programme proponents would answer that the problem with SAD is particularly that one starts at a vulnerable age for the wrong motives, such as to be cool, or to impress one’s peers (although this is not necessarily a wrong reason – it is quite essential to academic life, is it not?). These choices do not deserve protection in the name of liberty or autonomy. There is a perfect paternalistic justification of the SAD program. Even stronger: instead of being ungrateful, if a child had not been immunised, he or she might be angry for having been allowed to fall victim to such dangers of SAD.

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If one could ‘undo’ the immunisation at, say, 18 (being a mother I would prefer 30) that would solve this issue. A person would have the chance to decide for him- or herself at the age of reason.3 If immunisation was a lifelong thing, immunised people could still say that it should have been up to them to decide what risks to take with health, what preferences to have, which depends on their personality and outlook on life (why practise temperance?), the way they experience kicks and risks, or that even their unbalanced or unwise choices ought to be respected because they are their own, and that now this possibility has been taken away. An unacceptable moral castration. The immunised person cannot even conquer him- or herself. The SAD programme proponents could answer that there are still many other interesting risks and kicks and unwise choices around and that is absurd to insist on the risks (and pleasures) of SAD. If the protesting person argues that it is part of human psychological and moral flourishing to develop self-control, proponents could retort that there will be ample opportunity to do just that with all the remaining pleasurable temptations in life, and that unfortunately many people are apparently not very successful in mastering the art of self control.4 Tampering with personalities ‘You have tampered with my personality’, the person could say. And not be satisfied with the answer that after all that is what education and protection is all about. (‘They fuck you up, your mum and dad. They may not mean to but they do.’ Philip Larkin, ‘This Be The Verse’.) If the immunisation influences the whole system of perception of pleasures, that is an important tampering with personalities, whereas limiting only the ability to experience particular pleasures related to SAD is less intrusive. But still too intrusive according to the opponents. The SAD programme presupposes a certain idea(l) of persons as not subject to extremes, but not naturally inclined to moderation, or even the comparison between slavery and addiction.5 Presuppositions some might find questionable. It bothers me. People have passions, strange and strong habits and hobbies, interesting idiosyncrasies that colour their personalities and life in general. Is taking that away from them not too Brave New Worldish? Even if those habits or choices might harm them? But am I not exaggerating? Taking away the need for SAD is surely not the same as turning people into morally lobotomised bourgeois clones and models of propriety? Besides is not the ideal of autonomous individuals who will themselves after careful consideration decide on their addictions, preferences and passions all too unrealistic? Think of the poor young glue sniffers in the slums of Brazil, or young binge drinking girls vomiting in the streets of Manchester at six in the evening. Are we talking about authentic choices? Or not at all and therefore the authenticity argument would not be a good argument against the protection of persons who will fall victim



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rather than decide themselves (the ones the SAD program wants to protect)? Rather tampering than pampering? Are people as autonomous as we would like them to be? This prepostmodern idea of deciding for oneself, self worth etc. is hopelessly old-fashioned and illusory, a dream that philosophers should really give up now. (Many have actually.) Like it is a good idea to have an in-built speed limit on cars, humans need an in-built limit to unhealthy substances. Extended suicide by smoking is irrational. Besides: what is the moral difference between telling children not to use SAD, warning them (which societies and parents do all the time, even those who oppose the SAD programme) and immunisation (apart from the latter being probably far more effective)? The real me Smokers and people who drink too much, or are overweight because they eat a lot, could argue that being like that is part of their identity and should not be interfered with. But if you simply cannot become a SADDIE or an overweight person then it cannot be part of your identity. I do not blame my parents for me not being a man or a member of a cannibal tribe or a tall slim blonde although then I would have had a different personality and a corresponding life (I particularly fancy the one that befits a tall slim blonde), options I cannot integrate into my identity now. Immunisation is not the same as changing people whose identity and lifestyle already are closely intertwined. The case of immunisation of adults on their own free choice is very different, albeit not without difficulties (societal coercion; lack of autonomy; a diehard smoker refusing treatment etc.). Addicted adults are the group that is actually also the subject of research into vaccination against nicotine; the vaccination is then a kind of therapy for those who are already addicted, and intended to help them quit by making them lose interest.6 One can also question how close the relation between such habits and identity is. If one asks overweight people: do you want to lose the extra weight overnight, many might say yes to such a miracle. That does not mean that being overweight has not been constitutive to who they have become. We incorporate things that happen to us into our lives and identities and we are influenced by the way society looks at habits. (Smokers now are social pariahs; will obese people be the new pariahs?7) But we also change. The SAD proponents could argue that some habits and the underlying desires are too trivial to be considered as serious, constitutive, parts of one’s identity, e.g. smoking or living on a fast food diet. There is, after all, nothing particularly noble, uplifting or interesting about it. And they do not count as crucial long term or Dworkinian critical interests. On the other hand, maybe the freedom in general to decide about one’s trivial habits is not trivial at all.

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From ethics to policy and practice Healthism and longevity

One could also challenge the assumption that because people will be healthier and live longer it is rational to immunise. Of course, generally, we would all rather live long and healthy lives than die young or suffer from diseases. Some even argue that they want to live forever.8 But still it may be reasonable for an individual in certain situations to smoke. For example in a situation of great danger such as war. Or because one knows one is going to die at a young age anyway or at a certain moment: ‘Remember there were people on the Titanic who turned down the sweet trolley’ (Jonathan Ross) and therefore simply cannot suffer from the long term effects of smoking. Moreover, statistical benefits regarding a population cannot always be simply translated into individual benefits. If everyone does so-and-so, overall health will improve by x %. But those who do so-and-so may not all profit from so-and-soing. Without resorting to an all too simple or fatalistic ‘carpe diem’ on the basis of the prevention paradox, I think it is wise to realise that much can come become between me and my old age. A visit to the wrong place at the wrong time can be a matter of seconds and inches and some fatal bad luck. Not a reason to play Russian roulette, but it may be a justification for taking certain risks if you think they are really worthwhile. Some might find the pleasure of smoking or drinking worth the sacrifice of some years. The SAD proponents might point out flaws in such preferences, and argue that the future self, and the obligations to the future self, have not been taken into account, but are sacrificed for instant satisfaction. But it is more complicated: what is often said jokingly ‘you take away some years, but what years’, contains some truth; say that instead of living to 80 we live to 72. (This may be different for drugs on the one hand and alcohol and smoking on the other.) ‘So what, no methusalemetism for me’, some might say. ‘I don’t insist on those bonus years as an octogenarian, frankly it doesn’t look attractive at all.’ (One might, of course, look at that differently when one has reached the age of 70.) The arguments relating to less morbidity throughout one’s life (no shortness of breath, feeling fit, etc.) are in my view stronger rather than the extra years premium. This also holds for the struggle against obesity: preventing diabetes, problems of the joints, and other disabling consequences (the more or less immediate rewards) may be a stronger reason for persons to lose weight than adding years in the long run. Also the social problems caused by addictions, such as isolation, not being able to have relationships etc., may be a strong reason to do something about it. But not necessarily immunisation.



Inez de Beaufort 187 Tigers and sheep

We accept risk taking in the case of e.g. mountaineering or participating in the Paris-Dakar race, formula 1 racing, or in the professions of firefighters, astronauts or doctors that fight highly contagious diseases. But surely takers of ‘useless’ risks based on simple hedonism like SADDIES cannot be compared to the heroes that save our lives, conquer our mountains, or inspire those who excel in sports? No comparison with the firefighters, please. The mountaineer has this passion for mountain climbing that for her is essential. The husband of Mrs Hargreaves who died at the age of 33 climbing K2 in the Andes has said: ‘It is better to have lived one day as a tiger than a thousand years as a sheep.’ People do not always want to live as long as possible foregoing all risk. Such trade-offs are highly individual choices. Prudence isn’t always best. Public health experts sometimes cherish utopian (or naive?) views on health and happiness and longevity. The Michelin Guide inspector who in the course of duty eats cholesterol rich foods, accompanied by delicious wines and digested with a good cigar, may think the risks of being overweight, having clogged arteries and not treating his or her liver prudentially, well worth the enjoyment of the profession, albeit that he or she would be willing to take a pill to prevent these negative effects were it possible. To be or not be a glutton. Those choices have to do with our fundamental views on life and ourselves. They also show how important the working mechanism of the immunisation or ‘treatment’ is. Does it stop you from wanting something altogether, or does it counter bad side-effects, thereby providing the possibility to go on? Public health and public interest The SAD proponents will also claim that it is not only the interests of the individual but the overall costs to society that justify immunisation. The societal costs related to alcohol are very high; the costs of drugs and the wars on drugs as well; obesity is a very serious public health problem etc. We all have to accept limitations to our freedom for the good of others, the interests of society. This very different kind of argument can be (and has been) misused. There is the danger of tyranny of a particular moral view being promoted or imposed in the name of health (survival of the morally fit). Think of former president Bush discouraging teenage sex. Teenage pregnancies and the dangers of HIV/AIDS – terrible problems – are brought forward. But one can promote safe sex and anti-conception rather than no sex. What if states had the power through pharmacological means or mechanical manipulations of the brain to make us behave the way they think is proper and good for society and enforce a ‘broccolic’ outlook on life? What will come after SAD? Who will be the next candidates for a total lifestyle make-over? SOS

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(sex, overweight and sedentary habits)? Some find obese people aesthetically obnoxious. What if aggression could be eradicated? What if those views would dictate our lifestyles? The smoker’s case is complex because smokers are (usually) not disruptive for societies: they do not rob, steal, beg or attack people in a state of intoxication or cause traffic accidents. Of course, the dangers of passive smoking are a good reason to ban smoking from public places. Smokers sinning in front of buildings are odd but not dangerous. The obese are even more ‘innocent’. They are not a direct danger to anyone else’s health. The obese would currently be hugely attractive targets for strong state interference given the costs of obesity. The good for society argument would provide an argument for extensive interventions with many lifestyles and conditions (unhappy marriages, loneliness, academic stress?). One also has to face the fact that despite all our knowledge and technologies, we are fragile and mortal beings, and dying unfortunately is still an inevitable part of life and that if we do not die from the consequences of SAD we will – in the end – die from something else which is not necessarily ‘cheaper’ for societies. Also people are known to be very creative when it comes to finding something to get high on. If SAD is banned, it will be replaced by new, not necessarily healthier, ways to get high, and they will sniff, sip, snort or chew to escape from misery, to feel less timid, whatever. These arguments, I admit, in their turn might justify too much. We do feel it is justified to influence – to a certain extent – people to have healthy lifestyles also for the good of society. But instead of investing in the SAD program, societies could do many other things to improve health without interfering with their citizens’ liberty (improving social conditions which still influence health, the environment, accessible healthcare, etc., not to mention the prevention of childhood diseases in developing countries, where essential vaccinations are often not available). It is fashionable to put the burden on the individual responsible citizen thereby taking it away from society, but there are other interesting policies of a more nudging kind for societies to improve overall health. No conclusion As the careful reader might have guessed, I do not favour frugal lifestyles or governments forcing John to live a frugal lifestyle. So I have been exaggerating. The art of taking arguments to the extreme is one of the many things I have learned from John, though I will never be as good at it. I am also strongly opposed to untimely deaths. There is nothing wrong with the ideal of healthy lifestyles. But a lot seems wrong with enforcing the ideal. Unlike John Harris, I often find myself without answers. What would I do? The limited space here has not allowed me to discuss the possibility of leaving the choice to the individual parents, and the benefits and problems this may raise. I, for example, might have been tempted



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to immunise my children against smoking and drugs, but not against alcohol. There is no SAD programme. Yet. My children decide on their own vices. I hope they enjoy them and do not blame me for having let them. Notes 1 During my long cooperation with John Harris, there have been moments I felt as aptly described by P.G. Woodhouse: ‘I sat up in bed with that rather unpleasant feeling you get sometimes that you’re going to die in about five minutes’ (P.G. Woodhouse, The Code of the Woosters). But those were exceptions and EU research projects of course call for serious sacrifices by the researchers. 2 See R. Room, T. Babor, and J. Rehm, ‘Alcohol and Public Health’, Lancet 365 (2005) pp. 519–30. 3 In my empirical study – no ethical inquiry without solid empirical research ­nowadays – this option was unanimously (n=3) preferred. 4 See J. Coggon, What Makes Health Public (Cambridge: Cambridge University Press, 2012) Ch. 11 for a more profound analysis. 5 For this debate, see J. Feinberg, ‘Review Essay – No Smoking: The Ethical Issues, by Robert E. Goodin’, Bioethics 5:2 (1991) pp. 150–7, especially at p. 153. 6 This is actually the field where a lot of research is being carried out – a vaccination as a treatment for those who are already addicted. See e.g. http://m24digital.com/ en/2011/04/11. 7 I.D. de Beaufort, and S. van de Vathorst, ‘Obesity’, in R. Chadwick (ed.), Encyclopaedia of Applied Ethics (Academic Press, 2010). M. ten Have, I.D. de Beaufort and S. Holm, ‘No Country for Fat Children? Ethical Questions Concerning Community-Based Programs to Prevent Obesity’, in E. Waters, J.C. Seidell, B.A. Swinburn and R. Uauy (eds.), Preventing Childhood Obesity (London: Blackwell Publishing 2010) pp. 31–9. 8 J. Harris, Enhancing Evolution (Princeton: Princeton University Press 2007) p. 63

18

Killing and allowing to die Raanan Gillon

John Harris has been a hugely important and of course hugely controversial contributor to the field of medical ethics and bioethics. He says from time to time that I introduced him into the field by accepting his first article on a specifically medical ethics theme when I was editor of the Journal of Medical Ethics – if so it is an introduction of which I am immensely proud. However, one may praise a philosopher and friend while disagreeing with some of his arguments, and though John Harris and I agree with each other about many of the substantive issues in medical ethics, there is one about which I think we disagree and that is about moral distinctions between killing and allowing to die. So I shall take this opportunity to reflect on our different perspectives and perhaps provoke him into declaring whether or not we do disagree about my own basic claim, which is that while I entirely agree that there are no necessary moral distinctions to be made between killing and letting die I have no doubt that there are indeed sometimes valid moral distinctions to be made between them. Furthermore, such distinctions can be morally relevant in clinical medicine, such that in some circumstances allowing patients to die is morally acceptable where killing the same patients in the same circumstances would not be morally acceptable. Let me start by reiterating that Harris and I do agree about the proposition that there is no necessary moral distinction between killing and letting die. He makes this perfectly clear in his book The Value of Life1 (henceforth TVL), and indeed his notorious ‘The Survival Lottery’2 argued for the same point ten years earlier – its publication probably anticipating (by a few days!) James Rachels’s famous demolition job on the idea that letting die is necessarily morally different from killing.3 If I have a moral obligation to try to keep someone alive – and in many cases doctors do! – and I decide to ignore this obligation for no sufficiently good reason then my ‘allowing the patient to die’ is morally as wrong as if I had deliberately killed the same patient. If I fail to give my diabetic patient in diabetic coma the necessary insulin because I loathe the patient and want him dead, and the patient dies



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as a result, then my ‘allowing to die’ by not giving him the necessary insulin is as morally heinous as if I had deliberately killed him by injecting a massive overdose of insulin. But from the uncontroversial conclusion that there is no necessary moral distinction to be made between allowing patients to die and killing them it simply does not follow that there necessarily is no moral distinction to be made between allowing a patient to die and killing that patient: in other words it does not follow that there is a necessary moral equivalence between allowing patients to die and killing them. I have not seen any philosophical arguments explicitly attempting to demonstrate such necessary moral equivalence between killing and allowing to die and John nowhere explicitly argues that allowing to die is necessarily morally equivalent to killing – but the reader of TVL may be forgiven for understanding this to be Harris’s position. Let me offer some quotations that, taken at face value, might understandably lead a reader of TVL to conclude that Harris does indeed believe that allowing to die when one could prevent it is necessarily morally equivalent to killing. At pages 29–30 of TVL, Harris first distinguishes between positive responsibility (for our actions) and negative responsibility (for our omissions): Someone will be responsible for an event or state of affairs when that event or state of affairs obtains and the agents could have so conducted themselves that the event or state of affairs did not obtain. When their conduct is positive the responsibility is positive, and when the conduct is negative the responsibility is negative.

He then adds the important clarification that one can be negatively responsible for x without necessarily being morally responsible for x, and without having any moral obligation to have prevented x. [W]e can be negatively responsible for something even though it is not the case that we ought to have prevented its occurrence, or where we had no duty or contractual obligation to prevent it. I will be negatively responsible for the occurrence of something I could have prevented simply because I could have prevented it, not because I should have prevented it.

He adds a second clarification; one can be responsible positively or negatively for something even though one is not aware that one could have prevented it.4 Thus one may not be to blame for something that one is nonetheless ‘responsible’ for. Henceforth I shall differentiate between two sorts of ‘responsibility’: (merely) causal responsibility which is not associated with moral responsibility and moral responsibility in which there is both causal and moral responsibility, which may be positive or negative depending on whether the causal responsibility is positive or negative. So far, though it is clear and uncontroversial that ‘we can be equally responsible for what happens because of our actions and what happens because of our inaction or non-action’, there is no reason to assume that

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Harris believes that killing and letting die are necessarily morally equivalent. But what is one to believe when one reads the following? I also accept that if the occurrence of a particular event or state of affairs would be a disaster it makes no moral difference whether our responsibility for that disaster is positive or negative. In the rest of this chapter I will try to show why this is so.5

A natural understanding – an ‘ordinary language’ understanding – of this text is that there can be no moral distinction to be made between allowing a disaster to occur (let us call this negative causal responsibility for that disaster) and causing that disaster (positive causal responsibility for that disaster), and that Harris is going to show why this is the case in the rest of the chapter. If this ‘ordinary language’ understanding of these two sentences is correct then it would surely be right to conclude that Harris believes that when people allow a disaster to occur, which they could have prevented from occurring, then they are as morally culpable as if they positively caused that disaster. On this understanding, as Phillippa Foot pointed out so long ago,6 I am as morally culpable for the lives I fail to save by not sending more money to Oxfam as if I had (perhaps to prove a philosophical point) identified the people who would die as a result of my not sending more money, and then killed them (perhaps by sending them poisoned food parcels). In the next chapter of TVL, Harris is at pains to argue that everyone (not just doctors) has a moral duty not only to avoid killing others but also to take action to keep them alive. He rests this claim on two ‘ways of thinking’. The first is that ‘If we believe as most of us do that we should not behave in ways that cause death, injury or suffering to others then our obligation is clear’7 (and he adds in a reference note on p. 260 that even if we don’t share this belief ‘we ought to share it!’). The second ‘way of thinking’ about this claimed moral obligation is to see it as a concomitant of ‘what it is to value human life’. In this context John asserts that: ‘no one could plausibly claim to value life unless she were also committed to postponing the deaths of those individuals whose lives were valuable as long as possible, or as long as the individuals themselves wanted their deaths postponed’.8 This too could reasonably be interpreted to claim that those of us who distinguish between a universalisable prima facie moral obligation not to kill others (or not to do so without good moral justification such as defence of self or others), and a very much more restricted or ‘imperfect’ moral obligation to take action to prolong the lives of others, cannot plausibly claim either that we believe that we should not cause death, injury, or suffering to others, or that we value life. In chapter 4 of TVL, Harris asserts that ‘the real problem of euthanasia’ is not voluntary euthanasia (‘so clearly something that society should permit’9) but rather on the one hand the ‘euthanasia programmes’ of hospitals that fail to prolong lives for as long as they could be prolonged without informing patients; and on the other hand ‘[t]he government’s euthanasia



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programme’ whereby the government fails to provide sufficient funds to prevent avoidable deaths from (among ‘numerous other examples available’) kidney failure and heart disease. John ends this chapter by writing: It has never, I believe, been suggested that this killing is in any sense a caring thing to do and a traditional but inexcusable myopia as to negative responsibility has allowed this area of euthanasia to flourish while the government and other agencies continue to show moral disapproval for the only morally respectable form of euthanasia.10

It would not be unreasonable to interpret these passages as claiming that doctors who are allowing patients to die in hospital practice without informing those patients (or their proxies) that they intend to do so, and that governments who allow patients to die by not providing funding for life prolonging treatments, are as morally culpable as if those doctors or governments murdered those patients with bullets or poisons. Now I am a reasonably decent sort of man; a retired General Practitioner and philosopher who believes that I do value people’s lives, and that while that valuing entails that I should not positively cause other people’s deaths (or at least not without strong justification, as above) this does not entail that I am morally blameworthy for my widespread ‘responsibility’ (negative causal responsibility) for causing so many people’s deaths by failing to prolong their lives. Thus from my own moral perspective, while it would undoubtedly be morally praiseworthy if I (or Harris, come to that) sent more money to Oxfam or other charities that work to save people’s lives, nonetheless this would be supererogatory – neither of us has a moral obligation to send more money, and our failure to do so simply does not put us in the same moral camp as serial killers. Nor do I believe that doctors who do not prolong their patients’ lives for ‘as long as possible’ without informing them or their proxies are necessarily in the same moral camp as those who kill their patients – sometimes they may be, as argued above, but not always (and in my view not often – but not always will do for my argument). Nor do I believe that governments who could put more of our money into life-saving activities but do not do so are in the same moral camp as mass killers. As I started by saying, I am not sure that Harris would wish to deny any of those beliefs of mine, but the extracts from TVL that I have just quoted imply that I may be wrong! If I am wrong, how would I defend myself, plus many other doctors and governments against the general charge that all our allowings to die are morally equivalent to killings? I think I would start from Harris’s own assertion that: we can be negatively responsible for something even though it is not the case that we ought to have prevented its occurrence, or where we had no duty or contractual obligation to prevent it. I will be negatively responsible for the occurrence of something I could have prevented simply because I could have prevented it, not because I should have prevented it.11

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Now in my view this is an odd use of language since in ordinary English the term ‘responsible for’ normally does imply moral as well as causal ­responsibility. However if one accepts as John does that ‘responsible for’ need not have any moral implication, and if one accepts, as John does, that one is causally negatively responsible (at least in part) for anything that one could have prevented then yes I and John and all of us are causally negatively responsible for the deaths in the developing world – and anywhere else – that we could have prevented by sending more money to Oxfam or other life-saving charities or activities. But it is a further issue as to whether we are morally responsible for those deaths that we did not help to prevent. If we ought to have helped to prevent them then we are; if there was no such moral obligation, if preventing those deaths would have been morally admirable but supererogatory and thus morally optional, then we are neither morally responsible for, nor morally blameworthy, for those deaths. But Harris might argue, as I have quoted him above, that we all ought to save others’ lives as much as we can because this follows from the belief that most of us share ‘that we should not behave in ways that cause death, injury or suffering to others’ – and if we have that belief ‘then our obligation is clear’; (and, as he adds in his reference note four on page 260, even if we do not share this belief ‘we ought to share it!’). But of course that is to beg the question. Most of us certainly believe that we ought not to be positively causally responsible for other people’s death, injury or suffering – from which it follows that we ought not (at least prima facie) to cause, in this positive sense, other people’s death, injury or suffering. But even without doing the empirical studies, I think I can safely assert that most of us do not believe, even if we accept John’s notion that we are negatively causally responsible for lots of death, injury and suffering that we could have helped to prevent but have not, that we are therefore morally responsible for all that death, injury and suffering. Speaking for myself, I would again, as in the previous paragraph, remind Harris of his assertion that ‘we can be negatively responsible for something even though it is not the case that we ought to have prevented its occurrence’. As above, I would claim that from my own moral perspective, while it would be admirable if I took further steps to save lives in the developing world, this would be supererogatory, not morally obligatory (not even prima facie morally obligatory). And I would want more a compelling argument to explain why I am wrong than the footnote on p. 260 of TVL telling me that if I don’t share John’s belief about this then I ‘ought to share it!’ Am I any more convinced by Harris’s second argument that if I ‘claim to value life’ then I must be ‘also committed to postponing the deaths of those individuals whose lives were valuable as long as possible, or as long as the individuals themselves wanted their deaths postponed’?12 Setting aside worries about valuing ‘life’ tout court, and assuming with Harris in chapter 1 of TVL that we are primarily concerned with the value of people’s lives, why must I be committed to postponing – for ‘as long as possible’ – the



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deaths of other people unless they do not want their deaths postponed? The most plausible explanation is a version of the previous argument- that since everyone agrees that they ought not to kill each other (without strong justification), and since allowing people to die is morally equivalent to killing, then everyone should be as strongly committed to prolonging lives as they are to avoiding killing. Again, I am not persuaded and again I think the argument trades on a mistaken assumption that if we are negatively causally (merely causally) responsible for deaths that we could prevent then we must also be morally responsible for those deaths. That, as I have argued, is to beg the question about which deaths we are morally obliged to try to prevent amongst all the deaths that we could help to prevent. Perhaps the clearest example of begging this question appears in the passage at the end of chapter 4 of TVL: It has never, I believe, been suggested that this killing is in any sense a caring thing to do and a traditional but inexcusable myopia as to negative responsibility has allowed this area of euthanasia to flourish while the government and other agencies continue to show moral disapproval for the only morally respectable form of euthanasia.13

It would certainly be the case that if negative causal responsibility (merely negative causal responsibility) for the avoidable deaths that doctors and governments do not prevent entailed moral responsibility for those deaths then it would be appropriate to castigate doctors and government for ‘inexcusable myopia as to negative responsibility’. But since, as I have noted above, negative causal responsibility does not, even by John’s own account entail moral responsibility, we need weighty reasons to persuade us to attribute a moral obligation to prolong all the lives that doctors and governments could prolong (unless patients autonomously rejected such prolongation), and to put them in the same moral camp as killers for not doing so! As I argued long ago,14 although there are no necessary moral distinctions to be made between killing and letting die, it does not follow that there necessarily are no moral distinctions to be made between them. On the contrary, in many circumstances there are morally relevant differences between killing and letting die, and in many circumstances it is inappropriate to categorise withholding of life-prolonging treatment as ‘euthanasia’ with its connotations of intentional killing. While Rachels’s demolishing of the claim that killing and letting die are necessarily morally different is ‘an important conclusion to hammer home to those who simplistically assume that just because a death results from an omission to do something it is morally preferable to a death that results from doing something’,15 it in no way follows that killing and allowing to die are necessarily morally equivalent. I made the perhaps rash claim that: ‘it is probably safe to assert that there are no arguments in the philosophical literature that explicitly set out to show that killing is necessarily morally equivalent to letting die, tout court, let alone that succeed in doing so’.16 And to be on the safe side

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I added in parenthesis ‘Papers purporting to falsify this claim will be welcomed – though not without astonishment!’17 I did not reckon at that time that TVL was arguing that killing and letting die were necessarily morally equivalent; and as I have indicated above I still doubt that it was – though I have offered the bones of a rebuttal if it is. But I do suspect that many nonphilosophers of a utilitarian persuasion have come to the conclusion that there are not any morally relevant distinctions to be made between killing and letting die. In my editorial I went on to claim that ‘Medicine, law and everyday morality distinguish clearly between a strong universal though prima facie prohibition on killing and a very much more equivocal attitude to letting die. The assumption underlying this general approach seems to be that all of us owe a strong prima facie duty to all others not to kill each other but that we may or may not, depending on the circumstances and the relationships involved owe a duty to others to preserve their lives. On the basis that it was consequentialists who tended to minimise, if not totally deny, possible moral differences between killing and letting die I proposed three consequentialist justifications, as well as a justification based on respect for autonomy, that could in some circumstances justify moral differences between killing and letting die. In summary, the first consequentialist argument was that so long as most killings continue to be perceived as being far worse than most allowings to die, more overall benefit will result from concentrating on prevention of killings than on prevention of allowings to die, whether or not people were right to perceive that killings were generally morally worse than allowings to die. Secondly, preventing people from dying generally requires more resources than preventing killing, and especially so in the medical context. (Twenty-five years later this resource argument seems even more persuasive as medicine and medical technology develop ever more effective – and costly – ways of keeping people alive.) Thirdly – an argument that I now think is only a variant of the first argument (!): ‘while a general injunction against killing can easily be seen to conduce to maximising welfare … it seems highly unlikely that an equivalent general injunction to keep people alive wherever possible would also maximise welfare’. Yet if they are necessarily morally equivalent then the moral injunction against allowing to die should be as powerful and prescriptive as the general injunction against killing. And my fourth argument was that while a general injunction against killing was likely to respect people’s autonomy (leaving for later consideration the special case of voluntary euthanasia), a general injunction against allowing to die – i.e. a general injunction to keep people alive as long as possible – was more likely to infringe people’s autonomy by imposing on a substantial group of no longer autonomous people what they would have considered to be non-beneficial life prolonging treatment that they would have refused had they been able to do so. (I have more recently reiterated this particular worry when I criticised a court ruling in which a woman eight years in a ‘minimally conscious state’, whose relatives gave reasons



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for believing that she would have hated to be kept alive in this helpless and incurable situation, and asked the Court of Protection to rule that it would be lawful for the doctors to withdraw her life prolonging artificial hydration and nutrition, was denied such a ruling.18,19) I certainly hope that Harris is and was not arguing that allowing to die should be as morally objectionable as killing: for even if respect for the autonomy of those who wished to be allowed to die were part of the package accepting such equivalence, and even if the desire by Harris and others for voluntary euthanasia to be legally permitted were to be enacted, this would result in a hugely increased emphasis on prolongation of life, a shift of resources into keeping all alive as long as possible if they had not reliably demonstrated that they would not wish to be kept alive, the policing of hospitals and nursing homes to ensure that no one was allowed to die who had not autonomously and legally validly declared that they would wish to be allowed to die or be killed via physician assisted suicide or voluntary euthanasia – such is the stuff of nightmares! As for the issue of voluntary euthanasia, I started off in medical ethics with a student essay (which, much to my amazement, won a British Medical Association prize), arguing in favour of changing English law to permit physician assisted suicide and voluntary euthanasia. A few years after I qualified as a doctor I changed my mind, not because I had ceased to recognise that in some cases it would be morally justified to assist with a person’s autonomous desire to be killed but because I had decided – another consequentialist argument – that more harm than good would come of such a change in the law, especially because those of a frailer disposition might feel that they had to volunteer for euthanasia for the benefit of family or society, even though they really would rather not do so; and I still espouse this position. (In addition, for so long as the democratically established law forbids such killing, no matter how benign the motives, it is morally as well as legally important for doctors – especially doctors, with their extraordinary power over their patients’ lives and deaths – to act according to the law.) But I acknowledge that the issue reflects a moral – though not currently in the UK a legal – dilemma, about which reflective moral judgment can legitimately opt to seize either horn. But whichever horn one seizes of that dilemma it seems to me of major moral importance that this issue is not conflated with the false belief that allowing to die is necessarily morally equivalent to intentional killing. Notes  1 J. Harris, The Value of Life: An Introduction to Medical Ethics (London: Routledge and Kegan Paul, 1985). See especially Chapter 2, pp. 28–47.   2 J Harris, ‘The Survival Lottery’, Philosophy 50:191 (1975), 81–8.   3 J. Rachels, ‘Active and Passive Euthanasia’, New England Journal of Medicine 292 (1975), 78–80.

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 4 Harris, The Value of Life, p. 30 and footnote 3.  5 Ibid., p. 30.  6 P. Foot, ‘The Problems of Abortion and the Doctrine of the Double Effect’, Oxford Review 5 (1967), 5–15 (and variously reprinted).  7 Harris, The Value of Life, p. 53.  8 Ibid., p. 54.  9 Ibid., p. 84. 10 Ibid., p. 86. 11 Ibid. p. 30. 12 Ibid., p. 54. 13 Ibid., p. 86, emphasis added. 14 R. Gillon, ‘Euthanasia, Withholding Life-Prolonging Treatment, and Moral Differences Between Killing and Letting Die’, Journal of Medical Ethics 14 (1988), 115–17. 15 Ibid., p. 115. 16 Ibid. 17 Ibid. 18 R. Gillon, ‘Sanctity of Life Law Has Gone Too Far’, British Medical Journal 235 (2012). 19 R. Gillon, ‘Sanctity of Life Law Has Gone Too Far’, transcript from Lecture at Gresham College, 12 February 2014. Available at: www.gresham.ac.uk/ lectures-and-events/the-sanctity-of-life-has-gone-too-far.

Part IV

John Harris responds

19

Response to and reflections on chapters 3–18 John Harris

I talked in my chapter at the beginning of this volume about my own efforts at self-improvement, a form of human enhancement which is not often discussed in the vast current literature on enhancement. It is now time to turn to the efforts of others to effect my improvement either by friendly criticism or commentary, or by sending in my direction thoughts from which I have undoubtedly benefitted and which I hope will interest and engage all readers of this book. All these papers deserve very detailed study and discussion and all are more than just commentaries or discussion pieces. I also note that each chapter is a self-contained and elegant contribution to the literature, which would be worth reading in its own right quite independently of any engagement with my own approaches to the issues discussed. I cannot hope in the space available to do them anything like justice but what I can try to do is in each case take up at least one argument and engage with it as best I can. The chapters in Part II of this volume all address the problem of the grounding of moral arguments, and all find some space for more, or more adequate, grounding in my work to date. The chapters in Part III are more policy oriented and engage with some of my attempts to make positive policy proposals. I will discuss each chapter in turn. Part II Ch 3, Jonathan Glover In a characteristically thoughtful essay Jonathan starts by distinguishing various versions of George Orwell’s phrase ‘moral nose’ as both a device for detecting wickedness and its function of signalling a line which should not be crossed. He notes that in his chapter he is more interested in the former function. Jonathan also admits to writing partly in support of my views and partly in qualification of them. I will gratefully accept the support and concentrate on the qualifications. I should say that I accept the spirit of many of Jonathan’s qualifications. His seminal Humanity: A Moral History of the

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Twentieth Century1 is in my view a masterpiece of contemporary ethical writing. Jonathan notes that Orwell couples his use of the idea of moral nose with his defence of ‘common decency’ (also in my view an important and much neglected moral category). When Jonathan notes that ‘Moral nose tells us that torture … is something that is extraordinarily hard to justify’ he is surely correct, but reason delivers the same result in about the same amount of time since even a habitual olfactory moral philosopher will want to check his intuitions against something, usually some process of reason and reflection. ‘Whoops, this smells bad! Can I think of any good reasons not to torture lots of people – yes I can.’ When intuition and reflection deliver the same answer there is usually no need to delve further, but when they deliver different answers then some method of arbitration is called for. Further sniffs do not seem to help much (unless the wind has changed) but further reflection can deliver different and additional reasons (or show the initial candidates to be faulty). Jonathan rightly also notes that ‘what can be called the “human responses” to other people are part of the psychological core of morality’ and he continues ‘The role of these responses to the psychological core of morality comes partly from their role in restraining barbarous acts, but also from their centrality in our idea of humanity.’ Again I am inclined to agree save for reservations I have expressed elsewhere about the concept of humanity as a core moral category (expressed inter alia in my paper ‘Taking the “Human” out of Human Rights’2). But fortunately for the sake of disagreement he says: ‘This approach takes intuitions seriously as a source of morality. Trying to ground morality in reason alone, independent of emotion or intuition, risks creating a morality for Martians. … Morality rooted in human values has to listen to our intuitive responses’. I don’t think morality can be grounded in intuitions, although they might be one source of morality or as I would prefer to think, one reason we might have to look for a moral reason. And whereas morality could be grounded in reason alone it certainly could not be grounded in intuitions alone – for the simple and I believe sufficient reason that a claim that something is right and wrong must always be answered with, and grounded on, a reason and never plausibly with or on a sniff!3 I don’t think Jonathan and I are far apart here. The mainsprings of morality are often an instinctive or intuitive reaction, not least because these have been to some extent hard-wired into our evolved psychology almost certainly because they have, or have had, evolutionary advantage. My position is that it is always incumbent upon us to re-examine these intuitive probably evolved responses, both to see whether they are still serving us well in survival terms and also in moral terms. However for the sake of restoring harmony I agree with Jonathan’s penultimate statement which I think confirms the compatibility of our approaches:



John Harris 203 But Kant also said that understanding the world needs thinking as well as observation. He said we should interrogate nature not like ‘a pupil who listens to everything the teacher chooses to say’, but like a ‘judge who compels the witnesses to answer questions which he has himself formulated’. We should approach our moral intuitions in this way too. Bioethics committees of the great and the good often find it easiest to treat conventional intuitions with the respect traditional pupils were supposed to give teachers. There is so much deference and respectability.

His ultimate statement I also cannot resist repeating, not because this style of questioning is in any sense at all my own contribution to the world, it is the gift of Socrates and comes to us principally through Plato; as Jonathan, himself, a slightly more sober exponent, knows well. However, in addition to being fun, it constitutes a genuine and enduringly useful methodology: In this context, the note of gleefully disrespectful questioning (what might be called the John Harris tone of voice) is one of philosophy’s important contributions to the world.

Ch 4, Richard Ashcroft Another critic of my methodology, or lack of it, is Richard Ashcroft. He starts by summarising my position with admirable clarity and accuracy: John Harris thinks consistency is important in moral thinking. He thinks it is important, because he thinks that ethics is about making good arguments, and he thinks this because he thinks it is important to be right in ethics. And he thinks that being right in ethics is about believing things for reasons, which should be convincing and compelling … As with discovery in science, what matters is how the conclusion is justified, rather than how it was arrived at in the first place. Having demonstrated or justified one’s moral conclusion as strongly as one can, taking into account the various arguments which might be advanced against it, one is once again entitled to passions. We are to care about refusal to accept the conclusion we have established, because this could amount to wrongdoing, amoralism, irrationality or stubbornness.

He then asks whether argument can be out of place in ethics. He agrees with Glover in taking my use of Orwell’s moral nose as a test case and suggests we should follow the philosopher Frank Jackson, and asks: Suppose, then, that we accept John’s approach to moral argument, and accept its centrality and priority in moral thinking. What are we to make of Jackson’s suggestion that, faced with the apparent incoherence of our taking different moral stances concerning the permissibility of abortion and infanticide, we should look harder for the morally relevant difference?

I agree we should look hard for the morally relevant difference. The Issue is what we should do in the meanwhile. I have looked as hard in this case

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as I can, and I fail to find one. I accordingly believe that there is no morally relevant difference to be found. However it does not follow from this that I either advocate infanticide – I do not; nor that I favour a change in the law permitting infanticide. I do, however, believe that just as is the case with adults, there are circumstances in which death is preferable to life for particular individuals. For adults I believe they should be able to choose for themselves whether to live or die and I consequently favour a change in the law to permit voluntary euthanasia. In the case of children who cannot decide for themselves but for whom there are equally strong compassionate reasons to believe life to be an intolerable burden, I would like to see the courts being permitted to decide on a case by case basis what is in fact in the best interests of any particular child. In his conclusion Richard asks: ‘So, do we hang around with Jackson, or make up our minds with John Harris?’ He answers ‘Perhaps both’, and concludes: If John wants us to make up our minds with him, rather than hanging around with Jackson, then he needs to give us more than good moral arguments. He needs to give us … his moral theory … Meantime, I’m hanging around with Jackson.

Here I do finally disagree with Richard. He’s no more hanging around with Jackson than I am. Richard and I both want and use the best conclusions we have. Jackson says: ‘Most of us think we should look harder for the relevant difference’. And I agree. It is what we do in the meantime that matters. And on Richard’s reading this is not simply looking harder for the relevant difference, which I am pretty confident does not exist – though I remain open to being convinced otherwise – but finding the unifying underlying moral theory. I don’t think we need to wait for that. It would be like asking physicists to wait for a complete theory of the universe or neurologists to have a complete theory of the mind before they repose confidence in more particular findings. I admit I am not looking for the completely consistent meta-ethical theory. If Richard and everyone else cannot find it and if Derek Parfit cannot find his Theory X,4 I am not going to waste my time – better minds are on the job. The Leviathan can wait, I have smaller fish to fry. On reflection, and to spoil a good punch line, my fish may be smaller but they are tastier and more influential. Why? Because most voters and policy makers do not do meta-ethics; almost no newspapers or broadcast media interview metaethicists and for very good reason – they are mostly incomprehensible to non-philosophers. Bioethics has to be accessible to be useful; that may be why not many people are hanging around with Jackson waiting for Derek Parfit to sharpen up his act, or trying to do the sharpening themselves, however sad a fact this may be. For it is not enough for any individual to have a meta-ethics for their ethics, it has to be a viable and consistent metaethics. It has to be the equivalent of Theory X or all that will happen is that



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the ethical argument will move to the meta-ethical level with no gain in precision, persuasiveness or completeness. Ch 5, Michael Parker and Micaela Ghisleni Mike and Micaela take me gently to task for not sufficiently recognising the limits of rationality and in particular for arguing that morality is essentially a rational enterprise. Their essay pre-dates my newest work on Moral Enhancement but I have to admit my views have if anything hardened most recently. To be clear I think morality is essentially a rational enterprise in the sense that rationality is a necessary condition and moreover the only criterion by which moral credentials can be tested. I am not sure whether what Mike and Micaela argue is incompatible with this claim. They make great use of Carol Gilligan and I rely on their use of her ideas: Gilligan’s empirical claim is that women tend to speak in a ‘different moral voice’ to men, a voice that is undervalued by traditional models of moral development and by the research methodologies of Piaget and Kohlberg, and that it is for this reason that these aspects of morality have tended to have either gone unnoticed or to have been undervalued. ‘... the world she knows is a different world from that refracted by Kohlberg’s construction of Heinz’s dilemma. Her world is a world of relationships and psychological truths where an awareness of the connection between people gives rise to a recognition of responsibility for one another, a perception of the need for response. Seen in this light, her understanding of morality as arising from the recognition of relationship, her belief in communication as the mode of conflict resolution, and her conviction that the solution to the dilemma will follow from its compelling representation seem far from naive or cognitively immature’.

I am not sure I dissent from this although I think it mis-identifies what gives rise to ‘a recognition of responsibility of one another’. My own view is that the first thing one needs is a justification for an answer to the question ‘which others and why them?’ This is something I have tried to provide, inter alia, in the book from which Mike and Micaela quote at the beginning of their essay. People are often also connected to or have relationships with cats, canaries and that which became roast meat. Thus the answer cannot be delivered by an awareness of connectedness or a recognition of relationships alone. Of course as John Donne memorably reminded us, perhaps following Gilligan,5 ‘I am involved in Mankind’.6 But he might, with as much truth, have said I am involved in the world. What entitles the contraction to mankind requires an argument, as animal rights devotees are fond of reminding us. And the merits of any such argument require rationality aided possibly by some evidence. Of course the involvement in mankind is also, for those so involved, part of morality. Mike and Micaela conclude by saying:

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In this chapter we have considered the claim that the moral life is to be delineated in terms of explicit reason-giving and justification and the related claim that moral development is to be identified with increasing rationality. We have argued, against this, in a number of ways, that a full and coherent account of morality and of the moral life must be one which recognises that, whilst crucially important, the giving of reasons and the provision of explicit justifications rightly emphasised by John Harris inevitably takes place against, and indeed only make sense as part of, a rich and intersubjective background of more or less implicit moral discourses and practices which are themselves constituted by and constitute a background of developmental social relationships with a moral dimension i.e. are permeated by obligations, duties, expectations, virtues and so on with both an individual and communal dimension.

The second rather long sentence I think concedes a point that I have always made: that rationality is a necessary, but not necessarily a sufficient, condition of morality. Gilligan’s account in the paragraph quoted does seem incomplete, whereas my account cited in their first quotation includes the reminder that ‘to have a moral belief is, whatever else it is’, to make a judgement, not simply to have a relationship. I take this very interesting paper to be supportive of my general account. They end by noting: Nevertheless, whilst it seems perfectly possible to us that people might, and that many people in fact do, live moral lives without being able to put the principles or virtues by which those lives are ‘guided’ either into words or into the form of explicit justifications…

But living a moral life is not the same as living a good life. I have argued in many places, including the sources they quote, that living a moral life requires, as a necessary condition, self-consciously living a good life; and that requires reflection, judgement and rationality. It is not enough to live a good life for that might happen by accident or as George Bernard Shaw reminded us in the case of virtue, that virtue might result simply from insufficient temptation. Ch 6, Torbjörn Tännsjö I do not know what to say about Torbjörn’s ingenious and inventive paper except ‘thank you’. Torbjörn identifies my paper ‘The Survival Lottery’ as a sort of paradigm thought experiment and has done some very interesting empirical research using it as the basis of a test case. He modifies it in the following way: a game show film crew is shipwrecked on a desert island which has no food. Now read on … One person a week is killed in accordance with the rules of the lottery. Two members of the expedition declare that they believe in the Sanctity-of-Lifedoctrine. They do not want to take part in the lottery, which is accepted by the rest. After several weeks five persons have been killed and eaten by the rest



John Harris 207 (among them the host of the show, who was the third to draw the killing ticket in the lottery). Here the intention has indeed been to kill these persons, before one eats them. The two Sanctity-of-Life-persons have died from starvation. The rest have buried them according to their wishes. Then a ship arrives and the nine survivors are rescued at last.

Torbjörn notes: According to Utilitarianism, the survivors have probably acted rightly …But what is the utilitarian to say about the fact that the two persons who adhered to the Sanctity-of-Life-doctrine, and who were allowed to stay out of the lottery, were buried after their death? I suppose we have to admit that the appropriate utilitarian reaction would have been that they should have been eaten, after they had starved to death. This could have saved another life among the members of the expedition, at no cost (in utilitarian terms) to these dead persons.

As I argue below against Brazier and Campbell, I believe the utilitarian solution here is right. But Torbjörn’s purpose is to analyse how different philosophical positions would approach the case. I am grateful to Torbjörn for this support for a modest methodological gain from what I wrote really as a jeu d’esprit to illustrate how prudence, altruism and indeed morality can all argue towards what many will see as a repugnant conclusion. Ch 7, Florencia Luna Florencia has written an interesting and spirited defence of the philosopher or bioethicist as peripatetic critic, ‘have arguments will travel’, a gadfly on the body politic. She herself is a very prominent and courageous example of the species, working as she does in South America, espousing causes not popular with many authority figures and groups, including the Catholic Church. She has paid me an embarrassingly generous tribute identifying me as part of a long tradition that, as a student, I admired, but had no thoughts of joining or even emulating except as described above, as part of seventy thousand marchers against nuclear weapons on the road to Aldermarston and in the footsteps of Bertrand Russell. I do recognise the description of myself as a sort of restless and theory bereft critic, as a number of contributors to this volume have suggested. However the United Kingdom is a relatively safe environment for armchair intellectuals such as me. I cannot claim and do not deserve to be regarded as in any way courageous, unlike colleagues who appear in these pages like Florencia who really put themselves on the line, or like my friend and colleague Maurizio Mori, one of the most distinguished bioethicists in Italy, who for a long time was kept on the margins of academic life by powerful vested interests who liked neither his politics, his philosophy nor his secularism. One rare piece of self-knowledge I do possess, then, is that I am in no way courageous. I just love a good argument, and cannot resist following it once I have set it in train. This is akrasia, weakness of will rather than

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strength of character. When my wonderful colleague Margot Brazier, whose chapter in this volume I discuss below, says in that paper: ‘John may cavil at the analogy, but this twenty-first-century scholar bears a remarkable resemblance to those martyrs who like Thomas More would not bend their principles to suit princes’, she was right. I do cavil because my pursuit of principles is compulsive rather than brave; it is more like the ‘poop poop’ of Toad of Toad Hall pursuing a new toy, in his case a new motor car, than like the philosopher’s supposed love of truth. So thank you Florencia, but it is you who deserve your own place in the tradition you identify so eloquently. Ch 8, Harry Lesser Harry has written an interesting and I hope he will forgive me for saying ‘quirky’ account of the natural. Much of it I agree with and since none of it engages with my own, rare, use of the natural in argumentation I do not have a response of the usual kind to make. However I do want to take issue with some of his conclusions. Here is how he presents them: I conclude that there is indeed no ground for asserting that the natural, qua natural, is good and the artificial, qua artificial, is bad. But there are excellent grounds for trying to work out empirically what is natural, in the sense of spontaneous; and there are at least three ways, and probably more, in which it is morally relevant. One is the result of the fact that natural procedures, in this sense, are less likely to have unintended consequences, and are therefore sometimes to be preferred, as being safer and more efficient. The second comes from the fact that, though we are probably the most adaptable of species we are not infinitely malleable, and we need to be aware of what in us, as individuals or as members of a group, is more or less unalterable. The third comes from the fact that an environment which is disproportionately artificial may well – even though this is not certain – have harmful physical and psychological consequences.

I think the first sentence of this set of conclusions is correct but that all the others are more or less wrong. I do not think that the distinction between what is natural and what is not can be drawn in any systematically coherent way which allows for the empirical inquiry Harry favours. The equation of the natural with the spontaneous is interesting but odd; and in any event it is contradicted later when he equates the natural with the not-artificial. I know of no evidence that natural procedures, in so far as they are identifiable, are less likely to have unintended consequences – not least because, as Harry himself has pointed out, nature is not the sort of thing that can have intentions. Then I must say I do not think it is good for humans to try to work out what about themselves or about the world is unalterable. This is likely to change with advances in science and technology which it is dangerous to pre-empt, at least on the basis of the degree of re-thinking about ‘reality’ that they might require. Finally, again I know of no evidence that artificial envi-



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ronments are physically or psychologically hazardous, and of no reasons to think that they might be unless the hazard is built into the definition. Indeed what on earth is an artificial environment? In the United Kingdom what we take to be a natural landscape, fields, hedges, lanes, coppices have taken centuries of hard work to create, even what we take to be wilderness is itself the product of processes which have been influenced by people. Ch 9, Deryck Beyleveld Deryck has indeed succeeded in making a lot of sense of the concept of dignity, a feat that I had previously thought beyond the wit of humankind. I remain sceptical about its use in policy and morality because of the unfortunate sense in which it will, I believe inevitably, in English at least, always be connected with the familiar concepts of behaviour that is either dignified or undignified and with the maintenance or loss of that sort of dignity. A second reservation I have concerns Deryck’s statement: I think we should, as bioethicists, regard ‘dignity’ in ‘human dignity’ as designating the property that creatures must possess to be subjects of moral concern. In other words, the idea is that only creatures that have dignity in the requisite sense have a moral status, on the basis of which those who are capable of discharging duties have obligations to show them moral respect.

As a number of contributors to this volume attest I have tried to use the concept of personhood in this sense. As Deryck himself I think also accepts it is not possible to confine such a concept to humans, for three reasons. The first is that many would wish to include all sentient creatures, all animals as subjects to some extent of moral concern. Secondly, as I have argued in many places, we need to allow for further human evolution, which may involve species change, but not necessarily alteration to our successors’ moral status.7 And finally we should allow that we may not be the only creatures in the universe who have the sort of moral status which commands moral respect. We need to leave room for the recognition, possibly in our own vital interests, of the respect due to them when we meet them and room to convince them that they should respect us.8 I like Deryck’s use of Alan Gewirth’s Principle of Generic Consistency. My own view is that other principles do the same job. I would apply these claims to my principle of personhood, which would state that all creatures with valuable lives, that is lives which they are themselves capable of valuing must recognise the same is true for all other creatures capable of valuing their own lives. Interestingly Deryck’s use of this principle makes him vulnerable to problems about the dignity of embryos, fetuses and neonates, which lack agency in the Gewirthian sense. These problems are easily misunderstood (see the discussion of Woods below). However I agree with Deryck’s conclusion concerning the claims he makes in his important chapter, namely that:

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These are profound claims and much of this is controversial. However, even if the details and precise path of my reasoning are disputed, I submit, in extension of what I stated earlier, that the reason why dignity is an important notion for bioethics is precisely because it enjoins us to consider issues of the kind I have touched on here.

I would make the same claims in the same terms for my own use of the concept of personhood and I trust Deryck would agree? Ch 10, Simon Woods Simon sets out quite a daunting agenda for me. He takes a central concept, my account of personhood, developed first in my D.Phil, then elaborated in The Value of Life and in many places since, and expresses doubts as to its coherence, scope, plausibility and utility. This is a powerful and comprehensive analysis of a very central idea in philosophy generally and in my own approach to ethics in particular, namely personhood theory. It deserves a full paper as commentary, which I cannot attempt here. Let me concentrate on two important strands of criticism. The first is that the short version of my definition of a person is that a person is an individual capable of valuing existence, and what it takes to do this is basically rudimentary intelligence coupled with self-consciousness is fatally flawed. This is how Simon makes the point: The problem is this; that without some quite detailed and further elaboration from Harris the idea that a thinking intelligent being does everything required to earn its moral status seems deeply problematic, if not implausible. The problem can be illustrated in a rather tongue-in-cheek way with reference to the popular British science fiction television series ‘Doctor Who’ which features the Doctor’s infamous enemy the Daleks. The Daleks are an extra-terrestrial race of powerful mutants and bent on the complete subjugation of the universe, and their path to domination is characterised by an utter lack of pity, compassion or remorse for their cruel actions in the attempt to rid the Universe of all non-Dalek life. The point of this example is to show that though we have in the Dalek an extra-terrestrial example of a thinking intelligent being that may well meet the criteria for status as a person this is not sufficient to show that we are bound to respond to them as creatures worthy of the same ‘concern, respect and protection’ as we are to the rest of humanity. I don’t think that there would be a dilemma, as Harris puts it, whether to have this particular alien creature for dinner in one sense or in the other sense of ‘have’; we just wouldn’t want to be anywhere near them!

Simon anticipates my response, which is simply that like an unfortunately significant number of human persons, the Daleks are irredeemably nasty. Like the human versions of such beings we need another argument to justify killing them and that is readily available, namely self-defence. He says: History and indeed contemporary events can furnish too many examples of bad people, but one might argue that they can be held to account and treated



John Harris 211 as equals under the law. However this is not the point I am making here with regard to alien creatures like the Daleks. The point can be better illustrated by a rather cryptic remark made by the philosopher Wittgenstein who states: ‘If a lion could talk we could not understand him’.

Like Simon I have a fondness for this remark by Wittgenstein. His point is that the form of life experienced by the lion is so different from ours that there would be no basis for mutual understanding. But the fact that there might be no realistic possibility of a moral dialogue with them, does not negate their personhood any more than it does in the case of Hitler or his more banal servant Eichmann. One point needs correction however. Simon takes me to task for the fact that my account of personhood is unlikely to include embryos, neonates or indeed newborns. He says: It is important to note here that Harris does not argue that it will be no wrong at all to kill neonates or very young children but rather, and this by implication not his own elaboration, that it would be a very minimal wrong. Harris offers few grounds for understanding the nature of the wrong, which seems remarkable considering the implications of the claim, perhaps the wrong of inflicting pain on a sentient creature or the wrong of thwarting the preferences of doting parents? But since he is suggesting a shocking and quite repulsive conclusion that neonates and young children may be killed almost with impunity it might be expected that he would take some time to elaborate on the point.

Let me be clear: I do not say nor have I ever said or implied that ‘neonates and young children may be killed almost with impunity’ nor that such a thing would be ‘minimally wrong’. Margot Brazier, in her essay discussed immediately below has read me more carefully. She says, reading me right: ‘Harris has never advocated killing babies. He is scrupulous in analysing the multiplicity of interests in decisions touching on the care of disabled newborn infants. He limits his argument to the claim that killing the newborn infant does not rob that creature of something which it is capable of valuing’. Simon is fair when he says I have not supplied a detailed account of how to construct a theory of the value of the life of embryos and neonates that would effectively protect them or distinguish between them. I think the latter has so far been achieved by no-one. This is something, like Derek Parfit’s Theory X, which might enable him to avoid a different repugnant conclusion and which he has been unable so far to find. This is another example of the risks of doing highly nuanced philosophy for a professional audience alongside more public-oriented theorising. Simon says: Perhaps I am being too harsh on Harris here; he does seem to be aware of the potential harm of treating neonates and young children as non-persons though it seems only a begrudging nod to wider human sensibilities.

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The answer is ‘Simon yes you are being too, not harsh, but inattentive here’. I have never spoken of how we should treat neonates except to say, as Simon admits, that we should always err on the side of caution. I have always (I hope) talked about how to understand their moral status not about how to treat them. How to treat them, like how to treat philosophers you disagree with, is another sort of question altogether. Part III Ch 11, Margaret Brazier In commenting on Margot’s essay I should declare an interest. Margot has been my friend and colleague for over thirty years, and no better friend or colleague exists. She is also, unfortunately for me, the most astute critic and in my judgement the United Kingdom’s leading medical lawyer. So when she says I am wrong I take it seriously but when she says I am right I believe it absolutely. Margot discusses two delicate topics about which I have written extensively. The moral status of embryos, fetuses and neonates, and what may be done to and with the dead human body. If we start with the emerging human individual Margot notes that I have not been able to find enough of a moral difference in the first three semesters from conception to ground the sort of moral status that would prevent ending the lives of such creatures in some circumstances. Margot notes something on which I have always insisted and which is missed by many analysts hoping to find ways of discrediting my position. That is the distinction between an analysis of the justifications for particular moral outcomes and the advocacy of those outcomes in all circumstances. This is how Margot puts my position with complete accuracy and I think better than I have ever managed to express it myself. She notes I have argued: There is no significant difference between fetus and baby. Birth of itself is irrelevant to the status of the baby. It is very relevant to the claims of others. Harris has never advocated killing babies. He is scrupulous in analysing the multiplicity of interests in decisions touching on the care of disabled newborn infants. He limits his argument to the claim that killing the newborn infant does not rob that creature of something which it is capable of valuing. Consequently, pursuing his rejection of the distinction between acts or omissions, killing it painlessly is morally preferable to letting it die. All contrary arguments (he asserts) rest predominantly on feelings, unless the proponent is as passionate an opponent of abortion as euthanasia.

The difference between analysis and advocacy is crucial in bioethics and is seldom noticed. I have written about this problem extensively recently.9 To take an example some distance from our present concerns: it is conceivable that a defensible philosophical, legal and socially responsible attitude to prostitution might be to suggest that it should not be illegal, nor criminal-



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ised and that none of the parties to it should be subject to criminal sanctions, nor necessarily to censure. This I take it is a mild, liberal position on prostitution, which is not a million miles from received opinion and government policy in most liberal democracies. However, to say something like this and even, perish the thought, produce arguments and evidence to support it is not thereby to approve of prostitution nor yet to defend nor advocate it. Someone who, like me, may find themselves defending such a position in public is not necessarily thereby recommending prostitution to their own son or daughter as a noble profession nor yet recommending it to anyone else’s son or daughter let alone inciting or encouraging them in the oldest profession.10 Margot’s concern with beginning of life issues is to resurrect the importance of feelings and give them a place in the analysis of these issues and in the framing of law and regulation. I do not object to giving weight to feelings. Where Margot and I differ is as to the degree of weight they are to be accorded and as to how the law must deal with the weight citizens give to their feelings. Margot rightly points out: In a media obsessed world, appearance undoubtedly begins to matter. Videos of the ‘baby-fetus’ walking in the womb help to drive pressure to reduce timelimits for abortion. Debates about fetal awareness proliferate. Neither in itself matters. The day old kitten stretches out her paw. The unwanted mongrel puppy is at least as, if not more, aware than any fetus in a human womb. If killing something that looks like a baby is wrong, killing something that feels sensation is wrong, then so is killing the kitten or the puppy. Just because we feel more uncomfortable aborting a 26 week fetus rather than an 8 week fetus makes no difference to the intrinsic moral worth of either entity.

Here again I think Margot and I agree about the analysis but differ about the conclusions that should be drawn, particularly as far as law and regulation are concerned. Margot’s second theme concerns the use of the human body after death as a source of organs and tissue for transplantation and research. Here she shares the stage with Alastair Campbell’s contribution to this volume and explicitly incorporates it by reference. I have set out my stall very clearly with respect to these issues and despite attention to the arguments of Margot and Alastair in this volume and elsewhere I do not resile one jot from the position I have taken over many years.11 I would like to take up one interesting argument of Margot’s here. She says: The common law has always endorsed my right to dispose of my property as I will after my death … The disposition of assets after death is perceived as important in living a good life. Literature and history abound with examples of the importance which individuals attach to what happens after their hearts cease to beat. The ‘reasonable’ man settles his affairs. No doubt we all hope that he does so

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responsibly. The common law however endorses his right to do as he chooses. So I may ignore the usual framework of family love and obligation and bequeath my whole estate to the local cattery. My reasons for so doing cannot be examined. Perhaps I hate my family. Perhaps they hate me, and have in my life diminished the quality of that life. Perhaps I just love cats infinitely more than humans. It does not matter. What I value in life is what counts. Yet even the modest estate which a Professor of Law may leave would pay for several kidney transplant operations. Does Harris’s view mean that the NHS should be free to conscript all my cash as well as my kidneys?

Since Margot asks, albeit probably a rhetorical question, I would like to answer her question. The answer is ‘no, not the NHS but the Government’. The Government of this and most states has always reserved the right to conscript cash after death in the form of death duties and other taxes. It wisely stops far short of conscripting all of a testator’s property but in extremis it certainly could. One defensible idea is that the Government would take posthumous tissue and organs in lieu of death and other duties it might legitimately levy. Be that as it may the suggestion that we have some inalienable right to control our property, real or personal, in life or after death is not sustainable. When, in 1726, Daniel Defoe wrote ‘Things as certain as death and taxes, can be more firmly believed’ in The Political History of the Devil,12 he began an honourable history of linking these two, ‘institutions’ shall we call them? This tradition was followed famously by Benjamin Franklin13 and now me. It is simply not true that there is some sacred or hallowed right to control our property either before or after death. It is a qualified right and I am just adding, and for very good reasons, another qualification. Ch 12, Alastair V. Campbell Alastair takes a line similar to Margot, and indeed calls her in aid, and I hope he will forgive me for taking these two papers together and being equally unapologetic to him as I have been to Margot. Alastair has a very interesting discussion of Antonio Damasio’s views on the impossibility of separating mind and body; he raises this issue because he believes I am guilty of a rather naive form of Cartesian dualism. I don’t think so and for the record I do not accept such dualism, although whether bodies and minds having started off together might become separated is an interesting and unresolved question. The core of Alastair’s concern and where we significantly differ is encapsulated thus: Since the body quickly decays and is soon invaded by foreign matter, Harris sees talk of posthumous bodily integrity as ‘an illusion and the fact that everyone knows this hope to be illusory is some evidence as to the irrationality of the desire’. In a careful response to Harris’s paper, Margot Brazier points out that he



John Harris 215 dismisses a widely and powerfully held value in our community: ‘For [Harris], the “cost” of removal of organs and tissue after death is virtually non-existent. He seeks to presume that others make the same calculation of that cost. His presumption is not founded on evidence of shared values within our community. The whole history of organ retention suggests the contrary. A substantial number of people regard the removal of parts after death as a significant cost to their family values and psychological welfare’. In a later article, Brazier and her co-author McGuinness point out that the death of a person is a period of transition, ‘not akin to a switch that once “off” means that the dead person ceases to matter at all’. They go on to argue that religious beliefs and rituals expressing respect for the dead should not be discounted in societies which respect freedom of belief and opinion.   What interests me in this interchange of views is the presumption of rationality, which pervades Harris’s defence of his account of the issues, and his tendency to dismiss widely held contrary views as illusory or merely emotional.

With genuine and sincere respect to both Margot and Alastair, both old friends (as well as old adversaries in some respects) I am not (I hope) dismissing a widely and powerfully held value in our community but arguing as strongly as I can that this value is trivial when compared with the values that must be sacrificed to preserve it. This is a claim that I believe will appeal to reason. However I am a democrat and if it doesn’t eventually prevail, I will accept the outcome but keep fighting. My point is that we should be prepared to put up with some emotional discomfort about what happens to the bodies of our dear dead departed if by doing so we can save the lives of existing people. It is as simple as that. I am not ‘dismissing’ the contrary views, but rejecting them as inadequately grounded. Being dismissive implies rejection without argument. That I hope I would never do and have not done. If those who disagree with me find the arguments inadequate for good reasons, that is entirely another matter. So that when Alastair says: ‘Since the body quickly decays and is soon invaded by foreign matter, Harris sees talk of posthumous bodily integrity as “an illusion and the fact that everyone knows this hope to be illusory is some evidence as to the irrationality of the desire”’, I do not ‘see talk of bodily integrity as an illusion’ it is demonstrably an illusion! Alastair does not deny that the body decays, falls apart, loses its integrity. My argument is that the lives of people who want to live should not be sacrificed to preserve the illusions of others. The values at stake are not commensurate. I rely on people seeing the force of this argument. If people insist that their illusions are so important that lives may be sacrificed to preserve them, I deplore their values and hope others will as well. Alastair now argues: Yet nobody who argues for respect for the dead body holds the illusion he attributes to them. People who mourn the death of a person they have loved do not imagine that the body will stay the same after death. But in that painful

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time they need to say goodbye to the person, remembered as a body not just a mental experience.

If this is the argument I still do not ignore it or dismiss it, but it seems a rather worse argument than the previous one. I certainly strongly contest it. If someone were confronted with the fact that saying goodbye to someone ‘as a body’ will cost someone else’s life I would hope they would find another way of saying goodbye and remembering that person ‘as a body and not just a mental experience’. I do not think it plausible or decent to insist that saying goodbye in their preferred way, even if that is a way to which they are deeply attached, and even if it is firmly embedded in custom and practice, is worth a life or more probably a number of other lives. I am not ‘wilfully’ ignoring ‘the significance of the body of an individual both to the individual and to those who care for the individual, both in life and in death’ as Alastair claims; I am questioning the system of values, the morality of people who would wilfully sacrifice lives to preserve that kind of value. I cannot imagine a scale of values which would see these alternatives as proportionate. ‘Goodness me, I forgot to say goodbye and I will never see you again’ does not seem to involve the same sort of offence as ‘goodness me, I forgot to save your life and I will never see you again’. Mea equally culpa? I don’t think so. These expressions of regret seem to my ear to mark regret and indeed guilt of very different magnitude. And I am not here appealing to my intuitions on this topic. I could and indeed have unpacked ways of arriving at what I believe to be an objective test for measuring the degrees of harm involved in particular states, but I have no space to go further here.14 Ch 13, Ruth Macklin Ruth is a very dear friend and a bioethecist I have learned much from over the years. Reading her chapter makes me think that I should have thought twice about the two papers whose somewhat simplistic approach is criticised here. My excuse is that the two papers with which she engages were written in 1996 and 1999 respectively and although I have written about some aspects of resource allocation since then, notably the QALY and the United Kingdom National Institute for Health and Care Excellence (NICE) use of them,15 I have not found the opportunity to update the approach I took in the papers with which Ruth engages. When Ruth says the following towards the end of her paper she is being very gentle: Harris contends that his equal opportunities principle of justice is ethically superior to what he describes as the ‘public health conception’. But he goes beyond the comparison of these two alternatives in his contention that ‘any system of prioritisation of the resources available for healthcare or for rationing such resources must be governed’ by his preferred principle. I have argued that applied to the problem of providing ARVs in poor countries devastated by



John Harris 217 HIV/AIDS, Harris’s principle could have unacceptable negative consequences both for individuals and for society as a whole.

Ruth lists some of the problems and paradoxes at the end of her chapter and I agree with the conclusion she draws, namely that: Consequently (and consequentially), some modifications are needed in order to make Harris’s equal opportunities principle a sound approach to public policy for prioritising access to ARVs in resource-poor countries.

Whether these modifications can consistently be provided, Ruth herself gives reasons to doubt. My main priority in these papers was to demonstrate the inadequacies of either health maximisation or cost benefit style solutions. I have in the past considered the fair innings argument (which I believe I may have named) only ultimately to reject it.16 I conclude that Ruth has effectively shown the deficiencies of my approach thus far while, I believe, sympathising with the general approach. I do not wish to abandon the general principles I have outlined in the papers criticised, but I have not as yet tried to see whether they can ultimately be salvaged in view of the problems Ruth rightly notes. I am very grateful for these comments and hope to work again on these general issues. Ch 14, Andrew Edgar Andrew takes as his point of departure one of my favourite papers, ‘QALYfying the Value of Life’.17 This started almost an industry of exchanges about QALYs. Andrew gives an excellent outline of what is at issue in these debates and more particularly why it matters. He is, I think it is fair to say, broadly in sympathy with my approach but he does add some elements of much needed finesse. There is only one about which I have some doubts: If the QALY is to serve critical and democratic reflection on the social conditions of resource allocation, then this relativism must be challenged. This can only be done if the intersubjectivity and cultural constitution of quality of life measurement is made explicit. Weightings, and indeed definitions of health and health care concerns, can then cease to be treated as givens – as quasi-natural objects – and instead be regarded as the starting point for rational debate about the place of health and health care allocation in the pursuit of individual and communal lives that will be of value. In sum, this is to suggest that quality of life instruments may perform a vital role in making explicit a communal understanding of health, but only if this understanding can then be challenged by all who are affected by any resultant allocation of resources. Those who perceive that their values have been given insufficient emphasis in these understandings of health and distributions of health care must have the opportunity to protest, for example through the exercise of legally instituted rights, and to give reasoned arguments in defence of their position. Allocation would not then be a mere snapshot of current beliefs and prejudices, shaped by the prevalence and

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distribution of given values within the population as a whole, but rather the result of rational challenges and justifications that would aspire to rest upon the force of better argument.

I have to say that I am sceptical that quality of life instruments may perform a vital role in making explicit a communal understanding of health, because I doubt, if they were ever permitted this role, that Andrew’s qualification, namely but only if this understanding can then be challenged by all who are affected by any resultant allocation of resources would ever in the real world lead to the overturning of a resource allocation made or proposed based on such instruments. Like appeals against planning decisions and many other such measures, appeals are only likely to succeed if there is a procedural flaw which may be appealed to, or something akin to a revolution is threatened if they go ahead. Ch 15, Andreas Hasman Andreas takes a draft paper of mine that I must have lent to him when, or soon after, he was a student here at Manchester. He has turned it into a very interesting paper of his own using an analysis I had produced of Thomas Hobbes’s credentials as a bioethicist. It has been interesting to read my analysis put to use in combating overtly paternalist policies in public health. However, when Andreas says: In societies that are built on freedom, individual responsibility and market economy it has traditionally been left to individuals to decide what quality of life means to them – and, with respect for other individuals’ right to do the same, to adjust their lifestyle accordingly. Harris’s argument, that the state can legitimately protect the individual against threats from within, such as illness, does not imply that the state obligation to protect its citizen goes as far as to protect them against themselves.

I think he may be taking my own analysis a few steps too far. I am not sure about the linkage Andreas finds between societies that are built on freedom, individual responsibility and market economy. I hope ours is not a society with that particular combination of foundations. Despite the fact that the UK does have a market economy, to describe our society as being ‘built on’ it seems to me to go beyond the bounds of reasonable inference. However Andreas concludes: An obligation on the state to protect its citizens against perils from within, as well as from without, will not necessarily serve as an appropriate moral foundation for state interference in individual lifestyle choices; even when these choices are harmful to the individual who is making them.

And here he reflects my thinking exactly.



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Ch 16, Margaret P. Battin Peggy takes my penchant for thought experiments as a peg on which to hang a very interesting argument as to how racism might be combated. Her premise is that we might learn much about racism if we could change skin colour as easily as hair colour. What follows is a fascinating and penetrating essay on the nature of race and racism. Peggy considers whether or not changing racial features at will involves a sort of deception which amounts to fraud of some kind and suggests: The question we must face, I think, is exactly what is disturbing about real – though temporary – skin colour change, and what does this tell us, if anything, about racism and racist thinking here and now.

And she concludes: After all, if this simple possibility – the possibility of being white this week, black next week, native-American or Middle Eastern or Asian or Oceaniccolour the weeks after that – could really undercut that assumption on which racism is based – that colour identifies what a person really is – it would be an enormous contribution to deracialised interaction among individuals and among the peoples of the world.

I found the discussion fascinating, and its inventiveness and humour so characteristic of Peggy, both entertaining and exhilarating. I am left, however, with a sense that there is a mis-identification of what is significant about ethnicity. It is not only skin deep. Many people think their ethnic identity is an important part of who they are. I am myself ambivalent about this, but it seems to me that the evils of racism are unlikely to be solved by undercutting the immediately visible dimensions of ethnic identity. For one thing many people are attached to these and want to be accepted with them rather than without or despite them. In my chapter at the beginning of this volume I mentioned the fact that I had identified Jewish identity as purely religious and imagined that once I had become satisfied that God had never existed I was no longer a Jew. I then, at the age of twelve, thought I could cease to be a Jew by changing my beliefs, rather as Peggy imagines one might cease to be identified as Asian by changing skin colour. When I found it was not as easy as all that my first reaction was frustration. But over the years I have concluded that the best way to combat racism is to undermine and indeed combat, sometimes literally, its assumptions about what makes for value in a person rather than to make the objects of hatred fluctuate or ‘disappear’ altogether. Ch 17, Inez de Beaufort Inez is a phenomenon. She is probably the most creative bioethicist in the known universe, and one of the most inspiring to friends, colleagues and students. She is also a friend and collaborator over more years than either

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of us cares to remember or admit to. Her essay discusses a dilemma that she and I have debated many times over the years. It centres on a possible right and its conflict with public health imperatives. The right is ‘The Right To Be Reckless’. This supposed right is also the title of a book that Inez and I intend to write together, if our various addictions allow us to survive long enough to complete it. Inez’s chapter discusses a sad possibility: ‘Suppose a state proposes a vaccination against Smoking, Alcohol and Drugs, the SAD program’ what should our reaction be? As she notes: From an individual as well as a public health perspective immunisation seems the ideal solution to many problems related to unhealthy lifestyles. Do children not have the right to be protected against serious dangers to their health? No more preventable diseases and death, costly health education, clinics for the addicted (well, probably they would be full with internet-junkies), drug related crime, cold turkey suffering, and hangovers. The costs would be different compared to abolition-days: as the particular pleasure itself is lost, one is not interested in illegal procurement of the substances.

And she asks: Why do I feel uncomfortable? The rest of her highly entertaining essay is devoted to exploring her unease and she concludes: As the careful reader might have guessed: I do not favour frugal lifestyles or governments forcing John to live a frugal lifestyle. So I have been exaggerating. The art of taking arguments to the extreme is one of the many things I have learned from John, though I will never be as good at it. I am also strongly opposed to untimely deaths. There is nothing wrong with the ideal of healthy lifestyles. But a lot seems wrong with enforcing the ideal. Unlike John Harris, I often find myself without answers. What would I do? The limited space here hasn’t allowed me to discuss the possibility of leaving the choice to the individual parents, and the benefits and problems this may raise. I, for example, might have been tempted to immunise my children against smoking and drugs, but not against alcohol. There is no SAD program. Yet. My children decide on their own vices. I hope they enjoy them and do not blame me for having let them.

I think her conclusion is also mine. We see the imperatives of protection but ultimately the dangers of control. We want our children, and indeed our friends and compatriots, to be free and responsible. Responsible for themselves and free to choose. In Book III of Paradise Lost John Milton reports God saying to his ‘Only begotten Son’ that if man is perverted by the ‘false guile’ of Satan he has only himself to blame:   ……………whose fault? Whose but his own? Ingrate, he had of me



John Harris 221 All he could have; I made him just and right, Sufficient to have stood, though free to fall.18

I have argued recently that these dual capacities, sufficiency to stand and freedom to fall are both essential dimensions of autonomy. Without them life might be safer, but it would not, ultimately, be a life worth living.19 Ch 18, Raanan Gillon Raanan reminds me in his chapter of how our long friendship began, and how he set me on the road to bioethics; circumstances I have related in my opening chapter of this volume. It is therefore a special pleasure to end by engaging with him again in this final commentary and by discussing, albeit briefly, a theme which I have held to since I first became interested in phil­ osophy. Symmetry has a special appeal to human beings, as Shakespeare has Cassius say in the final scenes of Julius Caesar: …Time is come round, And where I did begin, there shall I end.20

Ra makes two main points against my espousal of what is often called ‘the no moral difference thesis’ concerning acts and omissions, a thesis which incidentally belongs to Philippa Foot, Jonathan Glover, Jonathan Bennett, Jim Rachels and many others in addition to myself.21 Ra correctly understands my position when he says: So far, though it is clear and uncontroversial that ‘we can be equally responsible for what happens because of our actions and what happens because of our inaction or non-action’ there is no reason to assume that John believes that killing and letting die are necessarily morally equivalent. But what is one to believe when one reads the following? “I also accept that if the occurrence of a particular event or state of affairs would be a disaster it makes no moral difference whether our responsibility for that disaster is positive or negative …”

But when he says: I certainly hope that John is and was not arguing that allowing to die should be as morally objectionable as killing

I must disappoint him again. I was arguing, and do argue, just that. The moral symmetry thesis is exactly what it claims to be, a moral symmetry thesis. But what is symmetrical with what? The moral symmetry thesis holds that death or injury, or indeed any other consequence is not, eo ipso, morally affected by whether or not it was brought about by action or inaction, or by positive or negative actions.22 However, omissions or negative actions, exactly like commissions or positive actions, can differ in moral quality for reasons other than their causal efficacy. If I were to shoot a man in the head, I am (probably) responsible for his death; but whether or not I

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am to blame, or if (and the extent to which) I should be punished for that death will depend upon many things. I might have shot him in justifiable self-defence, or to prevent him killing some third party, or whilst my mind was affected by insanity or whilst under duress. The same is true when I let drown someone whom I could equally easily have rescued. Ra and I may still differ about the extent to which praise or blame, censure or punishment, are appropriate in particular cases, and these differences may be affected by our theories of responsibility, of punishment, by how much we are ‘prisoners’ of our culture, our education, our evolutionary stage, our weakness of will and so many other things beside. So that when Ra says: Thus my own moral perspective accepts that while it would undoubtedly be morally praiseworthy if I (or John, come to that) sent more money to Oxfam or other charities that work to save people’s lives, nonetheless this would be supererogatory – neither of us has a moral obligation to send more money and our failure to do so simply does not put us in the same moral camp as serial killers.

He is taking a position, the plausibility of which depends on things other than the active or passive nature of our causal contribution to the resulting outcomes. Ra asks another question to which his own answer is definitely in the negative: Am I any more convinced by John’s second argument that if I ‘claim to value life’ then I must be ‘also committed to postponing the deaths of those individuals whose lives were valuable as long as possible, or as long as the individuals themselves wanted their deaths postponed’?

Ra is not convinced, but I think he should be. Consider: we all, even Ra I suspect, believe in saving life, in the sense that saving the life of an innocent person who wants to live we judge to be, other things being equal, a good thing (sorry about all the caveats … one has to be so careful as a philosopher and with another philosopher!). But there is no such thing as saving a life, there is only postponing a death. If we save a life we just postpone a death; we move the time of death further forward (or further back), unless of course immortality is a possibility.23 If we decline to do this when we could, we require a justification. Morality is, in large part, the death and suffering postponement business. Nothing I have ever said denied this, rather I differ with some, possibly even with Ra, as to the adequacy of justifications standardly given in particular cases for declining to save lives (postpone deaths) that could be saved (or deaths postponed). Let me end with a claim that I believe recommends itself to reason and is thus as true as any such claim can be; it has what one of my first tutors in philosophy, Frank Cioffi, was fond of calling ‘epigrammatic validity’. That



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claim is that: there is only one thing wrong with dying and that is doing it when you don’t want to. Offered the chance I believe any rational person would wish to die if and only if he or she wanted to. My position on acts and omissions has been and remains to attempt to change the complacency with which we view the demands of the rule of rescue. The rule of rescue does not just apply to exceptional circumstances, it applies to all circumstances in which people could be rescued by us and we have the opportunity to decide whether we have adequate reasons to decline to do so. There is room for disagreement of course as to the adequacy of such reasons. Sometimes (by which I mean in some epochs) the adequacy of bad reasons has been almost universally accepted: ‘it’s God’s will, she is only a woman’. What I have consistently argued is that the fact that rescue would require positive rather than negative acts (or vice versa) is not a reason with any moral weight at all. What I do grant, and have always held, although not perhaps always sufficiently articulated, is that I do not believe the sort of, if not universal, at least much wider than has hitherto been found acceptable, application of a rule of rescue of the sort implied by abolishing the acts and omissions distinction can be left to individual responsibility. It has to be achieved by collective, perhaps institutional or state action. Ra is right to insist that it is too demanding to be achieved by holding individuals personally fully morally responsible for all the harm they could have prevented. But the NHS in the UK and social services including fire, police, ambulance and education, howsoever funded are good examples of the acceptance of the sort of universal responsibility for the fate of others which I believe to be implied by a proper understanding of the rule of rescue. Health care is simply one of our state rescue services (in those countries which have a national health care system). So is education; in all states with compulsory child education it is a national strategy for rescuing people from ignorance and stupidity in so far as this is possible. We can face up to the demands of the no moral difference thesis; but we have to do it collectively. So smile and pay your taxes and make sure they are used wisely and well. Notes  1 J. Glover, Humanity: A Moral History of the Twentieth Century (Yale: Yale University Press 2000).   2 J. Harris, ‘Taking the “Human” out of Human Rights’, Cambridge Quarterly of Healthcare Ethics 20:1 (2010), 9.  3 J. Harris: ‘Taking Liberties with Free Fall’, Journal of Medical Ethics 40:6 (2014), 371–4; ‘Life in the Cloud and Freedom of Speech’, Journal of Medical Ethics 39:5 (2013), 1–5; ‘Moral Progress and Moral Enhancement’, Bioethics 27:5 (2012), 285–90; ‘What it’s Like to be Good’, Cambridge Quarterly of Healthcare Ethics 21:3 (2012), 293–305; ‘Ethics is for Bad Guys’: Putting the Moral into Moral Enhancement’, Bioethics 27:5 (2012), 169–73. S. Chan and J. Harris ‘Moral Enhancement and Prosocial Behaviour’, Journal of Medical

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Ethics 37:3 (2011), 130–1. J. Harris, ‘Moral Enhancement and Freedom’, Bioethics 25:2 (2011), 102–11.   4 D. Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), p. 390.   5 From in front of course.  6 John Donne ‘Devotions Upon Emergent Occasions’ Meditation XVII, in H. Alford and J.W. Parker The Works of John Donne. Vol III. (London: 1839), 574–5. Available at www.luminarium.org/sevenlit/donne/meditation17.php (accessed 23 October 2013).   7 J. Harris, Enhancing Evolution (Princeton: Princeton University Press, 2007).  8 J. Harris, The Value of Life: An Introduction to Medical Ethics (London: Routledge, 1985).   9 Harris, ‘Life in the Cloud and Freedom of Speech’, 1–5. J. Harris, ‘In Search of Blue Skies: Science, Ethics, and Advances in Technology’, Medical Law Review 21:1 (2013), 131–45. 10 Ibid. 11 Harris, The Value of Life. C.A. Erin and J. Harris: ‘An Ethical Market in Human Organs’, Journal of Medical Ethics 29:3 (2003), 137–8; ‘Janet Radcliffe Richard on our Modest Proposal’, Journal of Medical Ethics 29:3 (203), 141–2; ‘An Ethically Defensible Market in Organs’ British Medical Journal. 325 (2002), 114–15. J. Harris: ‘Consent and End of Life Decisions’, Journal of Medical Ethics 29: 1 (February 2003), 10–6; ‘Law and Regulation of Retained Organs: The Ethical Issues’, Legal Studies 22:4 (2002), 527–49. With a response by Margaret Brazier Ibid. 550–69; ‘Human Beings, Persons and Conjoined Twins: An Ethical Analysis of the Judgement in Re A’, Medical Law Review 9:3 (2002), 221–36. 12 https://ia600303.us.archive.org/0/items/politicalhistory1726defo/politicalhistory1726defo.pdf (accessed 24 October 2013). 13 ‘In this world nothing can be said to be certain, except death and taxes’ in a 1789 letter to Jean-Baptiste Leroy. The Works of Benjamin Franklin (1817). https://ia600407.us.archive.org / 15 / items / bigelowfranklin02johnrich / bigelowfra nklin02johnrich.pdf (accessed 24 October 2013). 14 J. Harris, Wonderwoman and Superman (Oxford: Oxford University Press, 1992), Chapter 4, and Harris, Enhancing Evolution, Chapter 6. 15 J. Harris: ‘What the Principal Objective of the NHS Should Really Be’, The British Medical Journal 314 (1997), 669–72; ‘Deciding Between Patients’, in P. Singer and H. Kuhse (eds.) A Companion to Bioethics (Oxford: Basil Blackwell, 2nd edn, 2009), 335–50; ‘It’s Not NICE to Discriminate’, Journal of Medical Ethics 31 (2005), 373–5. M. Rawlins and A. Dillon, ‘NICE Discrimination’, Journal of Medical Ethics 31 (2005), 683–4. J. Harris, ‘Nice and Not so Nice’, Journal of Medical Ethics 31 (2005), 685–8. S. Holm, ‘Self Inflicted Harm – NICE in Ethical Self Destruct Mode?’, Journal of Medical Ethics 32 (2006), 125–6. K. Claxton and A.J. Culyer, ‘Wickedness or Folly? The Ethics of NICE’s Decisions’, Journal of Medical Ethics, 32 (2006), 373–7. J. Harris, ‘NICE is Not Cost Effective’, Journal of Medical Ethics, 32 (2006), 378–80. K. Claxton and A.J. Culyer, ‘Rights, Responsibilities and NICE: A Rejoinder to Harris’, Journal of Medical Ethics 33 (2007), 462–4. J. Harris, ‘NICE Rejoinder’, Journal of Medical Ethics 33 (2007), 467. J. Harris and S. Regmi, ‘Ageism and Equality’, The Journal of Medical Ethics 38:5 (2012), 263–6. 16 Harris, The Value of Life.



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17 J. Harris, ‘QALYifying the Value of Life’, Journal of Medical Ethics 13 (1987), 117–23. 18 John Milton, Paradise Lost, J. Leonard (ed.) (London: Penguin Books, 2000), line 96ff. [Milton first published Paradise Lost in 1667.] 19 J. Harris, ‘Moral Enhancement and Freedom’, Bioethics 25:2 (2011), 102–11. 20 William Shakespeare, Julius Caesar eds. R. Proudfoot, A. Thompson, and D.S. Kasten The Arden Shakespeare (Walton-On-Thames: Thomas Nelson and Sons Ltd, 1998) Act 5 Scene 3, lines 24–5. 21 See J. Harris, Violence and Responsibility (London: Routledge & Kegan Paul, 1980), especially Chapter 4. 22 Ibid. Chapter 3. 23 J. Harris, ‘Intimations of Immortality’, Science 288:5463 (2000), 59, and Enhancing Evolution, Chapter 4.

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Index

abnormality 51 abortion 6, 10, 29, 44, 46–9, 51–2, 55, 68–9, 81–2, 108, 113, 120–2, 128, 198, 203, 212–13, 226–7, 229, 233, 237 permissibility of 6, 44, 46–7, 49, 51–2, 120, 203 action 5, 9, 17, 25, 28–9, 38, 51–3, 60, 67–8, 76, 92, 93, 98–9, 100, 103, 125, 134, 164–5, 166, 176, 192, 221, 223, 226, 232 among individuals 179, 219 and capacity 93 and communication 134 and discomfort 109 and moral responsibility 99 for self-harm 93 in health care 29, 232 actors 5, 10, 173 acts 34, 41, 51, 82, 122, 145, 202, 212, 221, 223 of evolution 86 and omissions 82, 122, 212, 221, 223 Adams, D. 181 addict 182–3 addicted 181–3, 185, 189, 220, 237 addiction 14, 182–4, 186, 220 adolescence 17, 147 adulthood 17, 111 Aeneas see Dido and Aeneas aesthetics 11, 13, 23–4, 49, 72, 136, 174–5, 179–80, 188, 236 Africa 81, 143–4, 149, 170, 173–6 ageing ageism 154, 156, 160, 172, 224, 232 population 166

agency 94–5, 98–9, 104, 108, 161, 209 agent 5, 6, 9, 21, 26, 67, 94–9, 103–4, 108, 113, 191 agnostic 125–6 agnosticism 99–100 AIDS 81, 143, 145–6, 148–50, 187, 217 Alder Hey Hospital 123, 129, 132, 233 Alghrani, A. 30, 232 alien creature 106–7, 210–11 life 107 persons 106 Allen, W. 182 amoralism see moral Anatomy Act in Britain 137 animal 26, 40, 79, 85–6, 92, 99, 104, 113, 120, 205, 209 health 26 liberation 79 rights 205 anthropology 11, 137, 141, 180, 227, 236 anthropocentric 102–3, 105, 109, 112, 141 anthropologist 40, 107, 136 antiretroviral 11, 143–4, 149 Antony and Cleopatra 174 Appiah, A. 177, 180, 226 Arendt, H. 20, 24–5, 30, 226 Aristotle 60 artifice 121 artificial 38, 88, 89, 90, 91, 97, 104, 109, 197, 208, 209 intelligence 38 reproduction 104



Index 239

reproductive therapy 109 see also therapy Asian 172–9 passim, 219 assisted 75, 81–2, 98, 121, 197 dying 69, 82, 120–1, 125, 137, 188, 196–7, 223 reproduction 75, 81–2 suicide see assisted dying autonomous 58, 77, 92–3, 184–5, 195–7 action 92–3 beings 93 desire 197 individuals 184 morality 58 people 196 autonomy 9, 71, 124, 183, 185, 196, 197, 221 and bodily integrity 124 Bach, J.S. 135 Balliol (College) 21, 22 Barolo 181 Bauman, Z. 77, 83, 226 Baylis, F. 109, 114, 234 belief in a categorical imperative 99 in god 97, 99 in morality 66 in a moral law 73 in moral judgement 25 and prejudices 160, 217 and rituals 132, 215 Bennett, B. 16, 30, 54, 221, 232 Bentham, J. 26, 78, 79, 85, 89 Beyleveld, D. 8, 9, 92–101 passim, 209, 226 biobanks 123 bioethics bioethical 5–8, 33, 152 bioethicist 10, 23, 80–1, 93, 207, 209, 216, 218–19 committees 203 and law 10 and policy 11, 14, 119 and science ethics 28 biolaw 100–1, 226 biology 9, 104–5 biological 87–8, 94, 104–6, 121, 134, 177–9 biotechnology 102 Blackburn, S. 50, 55, 227

bodies 10, 123–4, 126, 132–4, 137–9, 214–15 bodily integrity 124, 132–4, 139, 214–15 bodily material 124 bodily products 132 Brazier, M. 4, 10–11, 17, 24, 27, 29, 119, 121–32, 141, 207–8, 211–15, 224, 227, 234 Brownsword, R. 100–1, 226 cadaver 131–2, 141, 229 cadaveric donors 83, 120, 124, 131, 230 cadaveric organs 131–2 Campaign for Nuclear Disarmament 17 Campbell, A. 10, 11, 123, 126, 129–41, 207, 213–14, 227 capacity 5, 6, 9, 40, 92–4, 98, 103–8, 111, 125, 138, 154–5, 164 for agency 104 for autonomous action 92 of moral agency 108 for morality 6 for reason 6, 94 Catholic 41, 81, 104, 121, 127, 207 Cave, E. 129, 227 Centre for Social Ethics and Policy 27 Chadwick, R. 189, 228 Chan, S. 3–16 passim, 27, 30, 223, 227, 232 Chomsky, N. 76–7 Cleopatra see Antony and Cleopatra clinical 124, 126, 143, 148, 190, 216 negligence 126 research 124 treatment 143 clone 100, 119, 120, 128, 184, 230 cloning 33–5, 38, 40, 43, 54, 80, 96, 231 cognitive 30, 39, 42–3, 47, 56–9, 67, 72, 114, 205, 228, 230, 233 development 56 disabilities see disability egocentrism see egocentrism enhancement 30, 230 Committee of Inquiry into Human Fertilisation and Embryology see human: Committee of Inquiry into Human Fertilisation and Embryology commodity (human body) 140 common law 125, 128, 213, 214, 232

240

Index

contraception 82, 89 contraceptive methods 80 Convention on Human Rights and Biomedicine 92 corpse 36, 37, 40, 123, 132, 139, 140 Crockett, M.J. 30, 228 Cronin, A. 140, 141, 228 Damasio, A.R. 39, 43, 134–5, 136, 141, 214, 228 Darwin, C. 40 darwinian evolution 27 dead body 11, 125, 126, 131–3, 137–40, 215 death 11–20 passim, 29, 68–71, 81–2, 113, 124–6, 129, 130–3, 137, 140–1, 153, 158, 181–3, 188, 192–7, 204, 207, 213–16, 220–37 passim deceased 123, 124 decision-making 13, 38, 39 Declaration on Human Rights and the Human Genome 92 Declaration of the Rights of Man and of the Citizen (1791) 78 definition of health 160, 217 of knowledge 65 of a person 106, 210 desire 13, 20, 40, 56–7, 110, 132, 142, 185, 214–15 to be killed 197 for life 154 for revenge 41 Dickens, C. 35, 36 Dido and Aeneas 174 Dietrich, S.H. 83, 135, 228 dignity 8, 9, 40, 42, 92–101, 209–10, 226 in bioethics 93, 100, 101, 226 in bioethics and biolaw 100, 101, 226 critics of 9 of embryos, fetuses 42, 209 as empowerment 9, 93, 97–8 and human rights 92 in rational agency 95 disability 12, 40, 52, 114, 120, 153, 157–8, 160, 163, 165, 233 disabled 47, 49, 121, 122, 211, 212 disabling 186

discrimination 23, 60, 103, 144, 148, 165, 179, 224, 231, 235 disease 12, 14, 75, 81, 123–6, 145–169 passim, 181–2, 186–8, 193, 220, 236–7 see also Alzheimer’s; HIV doctor 7, 12, 14, 27, 62, 68–70, 114, 123, 136, 141, 155, 158, 173, 175, 187–197 passim, 210, 232 donor 69, 83, 120, 124, 131, 133, 230 see also cadaver: cadaveric donors Douglas, M. 40, 43, 229 Dworkin, R. 22, 75–6, 83, 154, 160, 185, 229 dying 69, 82, 121, 125, 137, 188, 196, 223 assisted see assisted dying education 19, 21–2, 61, 81, 126, 165, 181, 184, 220, 222–3 egalitarianism 11, 146, 147 egalitarians 148 egocentrism childhood 61 cognitive 58, 61 embodiment 11, 111–12, 133–41, 227 human 112 individual 112 rationality 136 self 133–9 passim embryo 9, 39, 42, 96, 104–5, 108–11, 114, 120–1, 128, 209, 211–12, 227–30, 234 donation 114, 230 research 42, 104–5, 108, 120, 121 selection 110 embryocide 120 embryology see human: Human Fertilisation and Embryology Act (1990) embryonic stem-cells see stem cell Engels, F. 30, 234 enhancement 24, 30, 110, 201, 205, 223–7, 230–2 cognitive 30, 230 Enhancing Evolution 27, 30, 120, 128, 189, 224–5, 230 enhancing status 172 law and 30, 232 moral 24–5, 30, 205, 223–7, 230–1



Index 241

environment 86, 89–91, 134, 136, 168–9, 188, 207–9, 237 epistemology 5, 6, 52–3, 64, 66, 73, 95–6, 159 equality 29, 33, 78, 146, 150–1, 154, 160, 164–5, 167, 224, 230, 232, 234 ethics 8, 59, 85, 86, 120, 204 of active euthanasia 121 see also euthanasia and bioethics 190 and biolaw 100, 101, 226 committees 43, 203 and humanity 129, 141, 227 of human tissue use 131 of IVF and embryo research 108 of killing 7, 68, 113, 234 and law 10, 128, 227, 237 in medicine 56 meta-ethics 50, 54, 55, 204, 205, 234 of philosophizing 109 and public policy 11, 119 of resource allocation 230 and science ethics 28 and social justice 164 of violence 22 eugenics 29, 231 euthanasia 3, 10, 6–9, 80, 120–2, 192–3, 195–8, 204, 212, 229, 235 Fabre, C. 139, 141, 229 fairness 11, 29, 142, 144, 151, 227 Feinberg, J. 128, 189, 229, 237 fertilisation 104, 113–14, 121, 128, 227–8, 231–2, 237 in vitro fertilisation 100, 114, 227, 231, 237 gamete 105, 120 gargle blaster, pan galactic 181 gender 40, 59, 119 genetic 75, 80, 95, 100, 102, 110, 121, 128, 177–8, 181, 230 diagnosis 95 diseases 75 engineering 75, 80 identity 121 manipulation 181 modification 110 parents 177 revolution 100, 128, 230

selection 110 variability 178 Gewirth, A. 9, 96, 98–100, 209, 226, 229 Gilligan, C. 6, 58–9, 61, 63, 205–6, 229 global health 26, 157 Glover, J. 4–6, 20, 23–4, 33–43, 127–8, 130, 201, 203, 221, 223, 229 Griffin, J.H. 171, 177, 179, 180, 229 Grobstein, C. 104–5, 114, 229 Groeningen Protocol 128, 229 Haimes, E. 109, 110, 114, 229, 230 Halsell, G. 171, 179, 230 handicapped children 29, 230 newborns 24 Hasman, A. 12–13, 17, 163, 165, 167, 169, 218 health care 11, 12, 29, 30, 55, 81, 142–66, 188, 216–17, 223, 227, 230–4 education 181 policy 143–4 service 148, 156, 160, 173 HIV 81, 141–9, 180, 185, 215, 225–6, 232 infected 141, 143, 147–8 Hobbes, T. 12, 13, 163–8, 218, 232 homosexuality 34, 35, 40, 41, 79 human body 105, 111, 131, 138–40, 212 Committee of Inquiry into Human Fertilisation and Embryology 104, 105, 113 dignity 92, 93, 95, 99–101, 209, 226 embryo see embryo enhancement see enhancement Human Fertilisation and Embryology Act (1990) 104, 113, 128, 228, 232 humanity 9, 16, 28, 41, 76, 79, 81, 95, 105, 107, 129, 141, 201–2, 210, 223, 227, 229 humanoid computers 138 nature 136 organs see human: human tissue reproductive cloning see clone: cloning rights 8, 30, 33, 80, 92, 100, 129, 202, 223, 231

242

Index

human (cont.) tissue 110, 114, 123–6, 129, 131–3, 138–9, 213–15, 224, 230, 233, 235 identity 13, 106, 111, 120–1, 134, 136, 138, 141, 174–5, 179, 185, 219, 227 genetic 121 moral 120 personal 106, 134, 138 immortality 99, 100, 120, 128, 138, 222, 225, 230, 231 in utero 108–9, 121 in vitro see fertilisation: in vitro fertilisation) infanticide 6, 44–52, 113, 120–2, 128, 203, 204, 211–12, 237 Institute for Science, Ethics and Innovation 27 Kant, I. 8, 42–3, 60, 92–101, 136, 203, 226, 233 Kass, L. 33, 38 kill by omission 14 Kohlberg, L. 57–63, 205, 233 Kuhse, H. 73, 128, 224, 230–3 Kushner, T. 3, 5, 7, 9, 11, 13, 15, 16 Locke, J. 26, 44, 68, 106, 114, 138, 234 lottery see survival: Survival Lottery love 21, 88, 112, 125, 182, 207–8, 214 market in organs 10, 133, 140–1, 224, 229, 232 Marx, K. 23, 26, 29, 30, 231, 234 medical ethics 24, 27, 29, 30, 54, 63, 83, 102, 113, 128–31, 140–1, 161, 164, 190, 197, 198, 223–35 law 29, 129, 130, 224, 227, 231, 233–4, 237 treatment 91, 127, 130, 145, 235 see also treatment Menzel, P.T. 159–60, 162, 234 meta-ethics see ethics Mill, J.S. 78–80, 83, 122, 144, 151, 234 Montesquieu, C. de S. 78, 83, 234 moral agency 5, 6, 9, 26, 103–4, 108, 113, 161 amoralism 45, 203

arguments 4–10, 31–40, 42–114 passim, 201–4 behaviour 25, 30, 232 character 20, 232 community 104, 109–12 development 6, 56–62, 205–6, 233 duty 129, 139, 192, 231 enhancement see enhancement identity 120 intuition 36, 43, 66–7, 73, 108, 203 judgement 44, 50, 228 law 34, 66, 73, 100, 233 status 93, 104–9, 120, 209, 210, 212 theory 7, 45, 52–4, 65–7, 72–4, 96–9, 103, 204, 236 murder 20, 21, 45, 69, 70 newborn see baby non-autonomous see autonomous beings non-human see human Nozick, R. 68 Nussbaum, M. 63, 234 O’Neill, O. 59–60, 63, 234 ivobesity 166, 181, 185–9, 228, 236 ontology 65, 73, 95–6, 105–6, 108, 177 organ 10, 11, 23–4, 83, 88, 109, 123–5, 131–3, 138, 140–1, 215, 228–9, 230–1 donation 141, 228, 229 procurement 83, 123, 131, 138–41, 231 sales 133 transplantation 10, 23–4, 123 posthumous 10 Parfit, D. 147, 151, 204, 211, 224, 234–5 permissibility of abortion see abortion person concept of 9, 40, 99–103, 109, 111–15, 210, 230 Lockean definition of 106 personal identity see identity personhood 5, 9, 61–2, 94, 108–9, 113, 119, 120, 126, 134, 209–11 physician-assisted suicide see suicide Piaget, J. 57–63, 205, 235 Pogge, T. 80, 83, 235 policy-making 4, 166



Index 243

population ethics 72 population health 142, 146, 151 posthumous organ transplantation see organ transplantation pregnancy 26, 47, 187 pro-life 81–3, 120, 231 QALY 12, 23, 29, 152–62, 216–17, 232, 237 QALYfying 29, 161, 217, 225, 231 race 13, 107, 170–80, 187, 210, 219, 234, 236 racism 13, 154, 170–80, 219, 226, 237 racist 172, 175, 177–8, 219 Rachels, J. 190, 195, 197, 221, 235 rape 81, 82 Rawls, J. 53–4, 57–8, 61–3, 65, 73, 80–3, 147, 151, 235 regulation 10, 120–9, 141, 213, 224, 231, 233 of retained organs 129, 141, 224, 231 relativism 49, 73, 95, 159–60, 217 research ethics 83, 234 methodologies 59, 205 resource allocation 12, 23, 29, 151–2, 157, 159, 160, 216–18, 227, 230 Richardson, R. 126, 129, 137, 141, 235 right-to-life 68, 71 rights 8–9, 12, 30, 33, 43, 59, 68–9, 71, 78–9, 80, 92–100, 104, 108, 110, 113, 128–9, 160–1, 202, 205, 217, 223–4, 227, 229, 230–1, 237 Rosser, R. 158, 161–2, 233, 235 Rosser-Kind index 153 Rousseau, J-.J. 26, 78 Rudinow, J. 179–80, 236 Russell, B. 19, 20, 26, 30, 77, 207, 236 Ryle, G. 134, 141, 236 sanctity of life 7, 127, 198, 229 Sanctity-of-Life-doctrine 68, 70–1, 206–7 Scarry, E. 136, 141, 236 self -awareness 19, 94, 126, 138 -consciousness 24, 27, 94, 99, 106, 135, 138, 206, 210 -defence 210, 222 -discovery 178

-harm 93 -identity 13, 106, 174 -image 95 -improvement 201 -interest 40 -ownership 68, 69 sentient 94, 99, 104, 108–9, 209, 211 species 27, 28, 41, 51, 85–6, 89, 90, 91, 105, 106, 111, 207–9 speciesism 9 stem cell 10, 34–5, 110, 114, 228, 230, 234 embryonic stem cell research 228, 230 embryonic stem-cells 110 therapy 110 stillborn 123, 133 suicide 68, 69, 92, 106, 120, 185, 197 physician-assisted suicide 120 Superman see Wonderwoman and Superman surgery 39, 123, 129, 143, 233 survival 86, 111, 120, 134, 159, 202 Survival Lottery 7, 23, 29, 45, 64–73, 81, 83, 86, 111, 120, 134, 143–4, 151, 159, 187, 190, 197, 202, 206, 207, 229, 231 Tännsjö, T. 7, 64–9, 71, 73–4, 206, 236 Taylor, K. 109, 110, 114, 229, 230 technology 27–9, 75, 80, 82, 100, 109, 156, 188, 196, 208, 224–6, 229, 231 therapy 29, 102, 109, 110, 123, 151, 185, 227, 231 gene therapy 29, 231 stem cell therapy see stem cell thought experiment 7, 13, 67–72, 170–1, 175, 177–80, 206, 219 tissue see human: human tissue treatment 11, 90–1, 127, 130, 137–65, 185, 187, 189, 193, 195–6, 198, 228–9, 234–7 Twain, M. 171, 179, 237 Universal Declaration on Human Rights (1948) 92 utilitarian 13, 69–71, 79, 81, 144–5, 148, 150, 167, 196, 207 utilitarianism 7, 11, 50, 54, 67–71, 78–9, 151, 207, 234

244

Index

vaccination 13, 14, 181–2, 185, 188–9, 220, 237 Violence and Responsibility 20, 23, 28, 54, 225, 232 Warnock, M. 33, 43, 63, 104–5, 114, 120, 234, 237 Warnock committee 104, 105, 120 see human: Committee of Inquiry into Human Fertilisation and Embryology Wasserstrom, R. 178, 180, 237

welfare 113, 132, 161, 164, 196, 215, 231 Williams, A. 45–6, 54, 155, 158, 162, 232–3, 237 Winfield, P.H. 119, 122, 128, 235, 237 Wittgenstein 44, 51, 107, 111–12, 114, 211, 237 womb 121, 213 Wonderwoman and Superman 128, 132, 140–1, 224, 232 Woods, S. 9, 17, 102, 103, 105, 107, 109, 111, 113, 115, 141, 209, 210