Abstract
Bioethicists working on national ethics commissions frequently think of themselves as advisors to the government, but distance themselves from any claims to actual authority. Governments however may find it beneficial to appear to defer to the authority of these commissions when designing laws and policies, and might appoint such commissions for exactly this reason. Where does the authority for setting laws and policies come from? This question is best answered from within a normative political philosophy. This paper explains the locus of moral authority as understood within one family of normative political theories—liberal political theories—and argues that most major “liberal” commentators have understood both the source and scope of ethics commissions’ authority in a manner at odds with liberalism, rightly interpreted. The author argues that reexamining the implications of liberalism for bioethics commissions would mean changing what are considered valid criticisms of such commissions and also changing the content of national bioethics commission mandates. The author concludes that bioethicists who participate in such commissions ought to carefully examine their own views about the normative limits of governmental authority because such limits have important implications for the contribution that bioethicists can legitimately make to government commissions.
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Notes
This is not to say that moral convictions are at root a matter of subjective experience or preference in the same way colors are. Many ethics experts are like design experts, however, in the sense that they do not claim expertise in which morals are the right or true ones, just as design experts do not believe they have expertise in the right or true color schemes for homes.
Most people would probably agree that governments can act in such an egregious manner that they lose their authority to impose obligations. I will not treat this complex question here, however.
For more detail on the similarities and differences between varieties of liberalism, see Gaus and Courtland [5].
For Kant, an action is right only if it can be described as compatible with the freedom of everyone else; as Kant says in his Universal Principle of Right, “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law” [7, sec. 6:230]. Coercion is at root a hindrance to another’s freedom, and so can only be justified when it can be described as a merely reciprocal use of force responding to a prior instance of coercion. Kant says, “There is connected with right by the principle of contradiction an authorization to coerce someone who infringes upon it” [7, sec. 6:231]. The remainder of the Doctrine of Right (the first half of Kant’s Metaphysics of Morals) describes the authorizations and constraints placed on governments following from these basic principles.
The initial situation, for Rawls, is “fair between individuals as moral persons,” and is thus the basis for thinking that their hypothetical agreement is also fair [9, p. 12].
Kant states, “That ethics contains duties that one cannot be constrained by others (through natural means) to fulfill follows merely from its being a doctrine of ends, since coercion to ends (to have them) is self-contradictory” [7, sec. 6:381].
Although most bioethics commissions concern themselves primarily with the giving of reasons, some commissions making proclamations on law, such as the UNESCO general commission responsible for producing the Universal Declaration of Bioethics and Human Rights, do not bother with the giving of reasons. The documents produced by these commissions implicitly derive their authority purely from the supposed epistemic authority of those involved in the process. This does not necessarily mean that such documents have no authority for the liberal, only that in the absence of any compelling explanation given for the conclusions, its authority will be limited to those conclusions that observers already understand to follow from liberal principles. The supposed authority of those discovering these rights will carry little weight in and of itself for most liberals, especially if those conclusions seemingly violate liberal principles.
Crosthwaite is addressing the more general question of expertise in ethics, but she takes a very similar tack to the others in her treatment of moral method and moral expertise.
For Kant, duties of right (i.e. legal obligations) are basically restricted to “perfect obligations to others.” Lying outside the realm of legal obligation are all imperfect duties to others, as well as perfect and imperfect duties towards oneself. This is implied both in the structure of Kant’s most mature work on moral theory, The Metaphysics of Morals, and also in the table he provides delineating the structure of moral theory. See [7, p. 240].
For Mill, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” [8, p. 13].
Rawls limited much of his work to questions about “justice,” saying that he did not know if the contract approach could be extended to other moral rules or virtues [9]. Rawls makes clear his commitment to liberty by giving it lexical priority over other kinds of concerns, even concerns he finds connected to “justice,” such as the maximin principle.
A host of other economic, ideological, technological, and cultural changes were also occurring at the time liberalism emerged. A “theory” of why liberalism occurred would take me well beyond the scope of this piece. I only make the limited point that liberalism was and still is widely seen as a solution to some of the ideological conflicts involved in the wars of religion. Carefully defining the correct moral methods or expertise in the contemporary context seems to resurrect that specter.
“Whose realm, his religion,” was the makeshift conclusion settled on at the Peace of Augsburg in 1555.
Although liberalism was intended to quell conflict, I will not here defend a prediction that it (or any other political philosophy) will necessarily lead to more consensus on bioethics commissions. However, at least one author has made such a prediction; see [16].
For more on the discrepancies between democracy and liberalism as rubrics for justifying the conclusions of government ethics commissions, see [18].
Carl Elliott [24] notices this but finds some merit in the conclusions and approach of that commission.
In contrast to Bush’s PCBE, however, CBAC spent most of its time addressing questions more mundane in nature than the foundations of human dignity or the moral status of embryos [28].
The Belgian Committee further expects that committee members will not reach consensus among themselves even on the limited questions they address, and consequently expects all written opinions to reflect the diversity of positions held by members (an expectation expressed by what they call the “non-consensus rule”). The group’s policy is to leave the work of hammering out compromises to the legislature. In this way, they admirably separate the actual authority of the elected officials from the very limited epistemic authority possessed by committee members.
Although the actual charter for NBAC wisely made only a very brief mention of giving advice about “bioethical issues” as they pertain to governmental activities, this did not discourage NBAC from making wide-ranging pronouncements on moral and ethical topics. For commentary on the ambitious aims of the commission to nail down an understanding of “moral status,” see [16].
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Acknowledgements
The author wishes to thank the research team at Novel Tech Ethics, Dalhousie University, as well as two anonymous readers for their valuable insights and feedback on an earlier version of this paper.
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MacDougall, D.R. Liberalism, authority, and bioethics commissions. Theor Med Bioeth 34, 461–477 (2013). https://doi.org/10.1007/s11017-013-9271-3
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DOI: https://doi.org/10.1007/s11017-013-9271-3