Public Moral Discourse

DAN W. BROCK

Professor of Philosophy and Biomedical Ethics, Brown University

What is the nature of public moral discourse as it is done by ethics commissions charged with addressing ethical or moral issues in medicine and biomedical science and technology?1 In what ways does it differ from the methods of moral philosophy and moral philosophers when they address such issues? Can public ethics commissions provide reasoned solutions to these ethical issues, and if so how? I shall first discuss some features of the nature of ethics commissions-the different goals they pursue, their typical charge and composition, and the role in public policy which they typically play. These features distinguish the processes they employ in some respects from moral reasoning as it is done by either moral philosophers or ordinary citizens. But I shall argue that these differences are relatively superficial and that how ethics commissions address and reason about moral issues is not fundamentally different from the method, when it is properly understood, of moral philosophy in addressing substantive moral issues of practice and policy. I shall show as well the respects in which this method can provide solutions to moral issues in public policy, or more specifically the respects in which an ethics commission's process of public moral reasoning warrants the claim that the substantive conclusions reached by that process are justified.



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Society's Choices: Social and Ethical Decision Making in Biomedicine Public Moral Discourse DAN W. BROCK Professor of Philosophy and Biomedical Ethics, Brown University What is the nature of public moral discourse as it is done by ethics commissions charged with addressing ethical or moral issues in medicine and biomedical science and technology?1 In what ways does it differ from the methods of moral philosophy and moral philosophers when they address such issues? Can public ethics commissions provide reasoned solutions to these ethical issues, and if so how? I shall first discuss some features of the nature of ethics commissions-the different goals they pursue, their typical charge and composition, and the role in public policy which they typically play. These features distinguish the processes they employ in some respects from moral reasoning as it is done by either moral philosophers or ordinary citizens. But I shall argue that these differences are relatively superficial and that how ethics commissions address and reason about moral issues is not fundamentally different from the method, when it is properly understood, of moral philosophy in addressing substantive moral issues of practice and policy. I shall show as well the respects in which this method can provide solutions to moral issues in public policy, or more specifically the respects in which an ethics commission's process of public moral reasoning warrants the claim that the substantive conclusions reached by that process are justified.

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Society's Choices: Social and Ethical Decision Making in Biomedicine SOME FEATURES OF PUBLIC MORAL DISCOURSE AS DONE BY ETHICS COMMISSIONS Goals of Ethics Commissions What are some of the different goals or aims that public ethics commissions typically have? First, they often are charged with developing relatively discrete legislation to deal with a particular ethical issue. For example, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (hereafter President's Commission) addressed in its first study the definition of death and developed a proposal for a uniform statutory definition, which has subsequently been adopted by nearly all states. Even with this relatively narrowly focused outcome, the President's Commission evaluated alternative definitions of death, for example, the "whole brain" account, which it supported, and the "higher brain" account, which it rejected, and offered philosophical and policy arguments in support of its choice of the whole brain formulation. Second, ethics commissions are sometimes charged with addressing specific unethical practices and recommending governmental responses to correct those practices. For example, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (hereafter National Commission) was established in large part as a response to a number of well-publicized examples of abuses of human subjects in research and to an influential article detailing such abuses.2A central component of the National Commission's recommendations was the establishment of Institutional Review Boards whose task is to assure that human subjects are properly protected. The National Commission also developed detailed guidelines and recommendations governing the use of specific populations in research. Here, too, the National Commission offered arguments in defense of its recommendations, and indeed in its Belmont Report developed the general moral principles on which its recommendations rested. Third, an ethics commission may seek to have a broad and diverse influence on policy and practice with regard to a particular moral issue. For example, the President's Commission in its report, Deciding to Forego Life-Sustaining Treatment,3 sought a multifaceted impact on such practices and policies as institutional, especially hospital, policies that guide practice within particular health care institutions; court decisions that set the legal framework of permissible practice; and the beliefs and practices of physicians and other health care professionals. A part of the influence of the President's Commission's work on this issue derived from its prestigious nature as a nationally constituted body, as has no doubt been true of other ethics commissions. But the influence of its recommendations also derived

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Society's Choices: Social and Ethical Decision Making in Biomedicine importantly from the force and persuasiveness of the moral reasoning the commission offered for its conclusions and recommendations. Finally, an ethics commission may sometimes have aims rather less focused on public policy. It may see its role more as influencing ongoing public debates on specific moral issues. In doing so, it may seek to have quite different kinds of influence on different occasions, for example, on the one hand sharpening the issues in dispute or on the other hand seeking to forge a consensus on those issues. These roles too, of course whether sharpening the issues or forging consensus-require providing the ethical analysis and arguments which either sharpen the issues or on which a new consensus might rest. Consensus building, broadly understood, is an important part of each of these four different aims of ethics commissions. In part, this is simply because in a democratic society public policy is forged in political processes requiring majority, or at least broad, support of a proposed policy. However, there are deeper reasons why consensus is seen as especially important in the work of an ethics commission. For many public policy issues, that a majority of policymakers, reflecting a majority of citizens support a particular policy position, is reason enough to warrant its adoption (for example, decisions to expend public resources on particular projects like public parks or medical research). It is not that supporters and opponents will have no reasons for their respective positions on such issues, which of course they will, but that we consider it appropriate to settle the disagreement by some form of majority rule decision process; within limits, the position that should be adopted is what the majority supports. On a moral question, however, it would be at the least odd or problematic for a commission to declare that it found by a vote of 6 to 5 that, for example, patients have a moral right to forego life-sustaining treatment. Many political questions and legal disputes may be reasonably decided by majority decision procedures, whether in legislatures or courts, but whether a public policy is moral or just is not settled by counting votes. In some sense, the moral question can only be settled by the quality of the arguments that can be offered for different positions on it. There are no authoritative bodies to settle moral questions and disputes such as exist in politics and the law for settling political and legal disputes. It is in part for this reason that the development of moral arguments and positions is common to all the diverse goals of ethics commissions noted above. The nature of the argumentation that commissions should employ is therefore at the heart of understanding their work. Typical Scope of Ethics Commissions' Concern Ethics commissions are typically charged with addressing the social, ethical, and legal issues concerning a particular topic like genetic screen-

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Society's Choices: Social and Ethical Decision Making in Biomedicine ing or informed consent. To the extent that moral philosophy addresses only the moral or ethical issues, the scope, and perhaps in turn the methods, of ethics commissions' work will have apparently to be different from moral philosophy. However, I believe it is a mistake to see this typical charge to ethics commissions as instructing them to go beyond the moral or ethical issues and to take up independent social and legal issues as well. Instead, this charge is usually best understood as instructing the commission to address the moral issues of public policy in their broader social and legal context, rather than to engage in social and legal analysis independent of the moral issues. This typical charge reflects as well a widespread confusion as to just what the domain of the moral or ethical is in the context of public policy, a confusion which has contributed in turn to two views-both of them, I believe, mistaken-which assign a more restricted scope to ethics commissions' proper concerns. The first view understands ethical analysis to be addressed to individual actions, whereas policy analysis applies to many cases and institutional practices, and so must in some way extend beyond ethical analysis. The second view understands moral considerations, as well as the method of moral reasoning employing those considerations, to be only a part of the overall considerations relevant to evaluation of public policy. In this latter view, moral philosophers and the methods of moral philosophy may analyze the morality of some policy, but overall policy analysis and evaluation must take into account additional nonmoral considerations such as economic costs, political feasibility, legal constraints, and so forth. Consequently, the distinctly moral or ethical analysis of an ethics commission would not yield ''all things considered" judgments or recommendations about public policy. To do that the ethics commission would have to consider these additional nonmoral economic, political, and legal considerations as well, which it has no special expertise to do. On the other hand, if these nonmoral economic, political, and legal considerations are part of the proper province of ethics commissions and ethical analysis, then it seems all policy analysis has been collapsed into ethical analysis, an unwarranted ethical aggrandizement of the policy field. I shall address each of these related, but, I believe, mistaken, views in turn. In the first view, ethical analyses and judgments apply only to particular cases, not the general practices that are the province of public policy. This view is sometimes expressed by a distinction between when one is "doing ethics" and when one is "doing policy." This putative ethics-policy distinction rests on what can be called the one-many assumption about the relation of ethics to policy. Policy evaluation, in this view, is not ethics because it must address policies that apply to many cases. In the evaluation of what action is ethically justified or permissible in a particular case, it is natural to believe that only the particulars of that case are relevant, though those particulars will include the social context in which the case

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Society's Choices: Social and Ethical Decision Making in Biomedicine takes place, the social and professional roles of the different involved parties, the causal impact of what is done in that case on what will be done in future cases, and so forth. For example, if the case concerns a dying patient suffering from pain that has proved impossible to relieve adequately and who requests euthanasia from her physician, it would appear that it is only the particulars of this case which are morally relevant to its moral evaluation. Different people will disagree about which features of the case are morally significant or important, and about what moral principles or reasons bear on it. For example, some people might hold that euthanasia would be morally wrong in this case because it would be the deliberate killing of an innocent person, which they believe is always morally impermissible; others might see it as morally permissible because it is an exercise of an individual's moral right to self-determination. Still others of more consequential list or utilitarian leanings may evaluate the act by its impact on the well-being of all affected by the action. If doing it would make the physician more likely to perform euthanasia in other similar cases as well, then that too is a consequence of this particular action. But these are all differences about how the act in question should be morally evaluated. The moral evaluation of a social or legal policy, for example, permitting euthanasia, is, of course, not unrelated to the moral evaluation of particular instances of euthanasia.4 But a person's moral position about such a policy need not follow directly from his or her moral position about a particular case. Many people who grant that there are individual cases in which euthanasia would be morally justified nevertheless oppose a public or legal policy permitting it because of worries about how that policy might or would be abused, leading to other wrongful performance of euthanasia. Because the policy must apply over time, in many circumstances and to many persons, the policy's effect in these other cases is relevant to its moral evaluation as well. Many of the differences in the substantive moral principles and reasons different people applied to the individual case will resurface in the moral evaluation of policy as well. But both evaluations-of the particular case and of the general policy-can be equally and fully moral evaluations to which one's moral principles and reasons apply. The typical object of moral evaluation by ethics commissions, namely one or another public policy, does not entail a fundamental difference in the moral principles or reasons used in making the evaluation, or in the methodology of moral reasoning and argument employed. There is reason then to remind ethics commissions to attend to the broader social and legal context of the ethical issues they address. The general practices which are the proper province of concern of ethics commissions exist in a social context, often in diverse social contexts involving individuals with diverse motivations and knowledge. These actions and

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Society's Choices: Social and Ethical Decision Making in Biomedicine practices are also often regulated by law. Although the law is only one form of influence on and regulation of practice, public policy, as opposed to forms of private regulation of behavior and practice, is often distinguished by the presence of legal or quasi-legal oversight. Because ethics commissions typically address policy and general practices, not individual actions, various empirical questions regarding practice are relevant to their deliberations: What is the nature of current practice in the area under consideration? What are the possible means of policy and institutional change? What are the means of enforcement of specific policies? What would be the economic and other costs of different policy alternatives? The answers are relevant and integral to an ethical analysis of the policy issue. This ethical analysis must also address questions like the following: What ethical principles and values bear on the ethical evaluation of current practice in the areas of behavior in question? What would be ethically more desirable practice in the areas of behavior in question? What means are available to shift practice in those desirable ways? Thus, the consideration of economic costs, political feasibility, legal constraints, potentials for abuse, and so forth, all bear on and must be considered as part of the ethical case for a particular policy. But this brings us directly up against the second mistaken view noted above about the proper scope of ethics commissions' concern. That view rejects a conception of ethical analysis which encompasses these economic, political, and legal considerations, and restricts the ethical analysis only to the distinctly ethical considerations. It follows from this that the ethical recommendation on policy in a particular area cannot be an "all things considered" recommendation regarding the policy, what John Rawls claimed for justice in characterizing it as the "final court of appeal" in practical reasoning.5 Instead, in this second view of the restricted scope of ethics commissions' concern, the ethical analysis takes account of only some considerations relevant to what policy should be. This implies that when the ethical analysis is completed, additional relevant considerations will remain that have not yet been taken into account, but which must be, before drawing a conclusion about what, all things considered, practice and policy ought to be. Why is this view mistaken? It is certainly correct that moral philosophers are not experts on the economic, political, and legal considerations about which economists, politicians, lawyers, and social scientists are typically consulted. Consequently, an ethics commission will still have to consult with these experts when economic, political, and legal considerations form a significant part of its policy analysis and recommendations. But why should an ethics commission be burdened with these additional concerns which apparently go beyond its ethical expertise? In part, because ethics commissions are asked to make public policy recommendations, "all things considered" recommen-

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Society's Choices: Social and Ethical Decision Making in Biomedicine dations about what policy should be, not just restricted recommendations about what would be ethical in some restricted sense. To fulfill this role, they cannot restrict themselves only to the considerations that most people would intuitively identify as ethical. But this common intuitive distinction between ethical and nonethical considerations is itself misleading. Perhaps a very simple example will most clearly make the point. If you promise to meet a friend tomorrow at 3:00 p.m., that promise gives you a moral reason to do so. But then tomorrow, quite unpredictably, it turns out that you must finish some project or take some action to avoid a very substantial financial loss. Doing so will prevent you from meeting your friend whom you cannot now reach. Ought you morally to keep your promise at very substantial and unexpected financial cost to yourself? If we apply the intuitive distinction assumed above between ethical and economic considerations, then the promise is ethical and the financial cost is economic. Could the ethical analysis concern only the ethical consideration-the promise? It should be clear that this would make no sense. The moral question just is the "all things considered" question of whether you must keep the promise in the face of the very substantial unexpected financial cost to you of doing so. The moral analysis must weigh these two considerations against each other; it cannot consider only the ethical consideration of keeping promises. The same is true of policy analysis. It is not that the common intuitive distinction between moral considerations, such as promise-keeping, and nonmoral considerations, such as financial costs, is mistaken. The mistake is in thinking that moral judgments can avoid weighing the two when they come into conflict; when that occurs, the financial cost becomes a morally relevant consideration in the moral judgment about whether the promise ought to be kept. The same will be true of moral judgments about the public policies that ethics commissions address; for example, apparently nonmoral considerations (financial costs) are morally relevant to the moral question of how much equality of opportunity (the moral consideration) requires society to do to improve opportunities for the handicapped. Does this account make "all things considered" policy evaluations and recommendations ethical, and so result in unwarranted aggrandizement of the policy realm by ethics or morality? And why are only some policy questions then seen as ethical and given to an ethics commission? My view here does not lead to ethics swallowing up policy. Many policy choices remain essentially nonethical because ethical considerations are not significantly affected by them and so are not relevant to them. For example, on the policy questions of what rate of growth of the money supply and what economic stimulus packages are compatible with holding inflation to a three percent level, the economic analysis is appropriately sought from bodies such as the Federal Reserve and the Council of Economic Advisors, not an ethics commission. (This is not to deny, of course,

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Society's Choices: Social and Ethical Decision Making in Biomedicine that there are ethical implications of policies to control inflation, but that is a different policy question.) If there is no neat and clear division of labor for ethical and nonethical considerations, which policy questions should go to an ethics commission for analysis and which should go elsewhere? Very roughly, policy questions are appropriately referred to an ethics commission when the considerations commonly and intuitively considered ethical have a significant role or impact in the policy question. But the ethics commission cannot then do its job of analysis and recommendation without weighing those considerations quite appropriately considered ethical against other considerations with which they come into conflict, but which are intuitively seen as nonethical. Membership of Ethics Commissions The principal ethics commissions in the United States in recent decades were deliberately established with widely diverse members. Typically, only a small minority of members are professional ethicists or moral philosophers with extensive professional training in ethics and moral philosophy. But this does not mean that what an ethics commission does when it addresses moral issues, nor how it does so, is different in kind or method from how professional ethicists would or do address the same issues. Professional ethicists and other commissioners will be engaged together in ethical reasoning on the issue at hand. Ethical reasoning and argument is done in the ordinary circumstances of everyday life by ordinary persons without academic or scholarly training in moral philosophy. It is not an esoteric subject like cell biology or quantum mechanics, accessible only to experts. Ordinary people make ethical judgments when they morally evaluate different states of affairs, different individuals' actions and character, and different social and political institutions. We employ such judgments in morally justifying our own actions to ourselves and to others, as well as in moral evaluations of the actions of other people. Professional ethicists and moral philosophers, who are typically at least represented among commissioners and staff members on ethics commissions, do bring a certain expertise to the work of ethics commissions typically, at least the results of having studied ethical reasoning and alternative ethical theories in a full-time, formal, and rigorous manner. They should be trained in the careful, critical evaluation of the soundness of arguments. They should have systematically studied and evaluated arguments for and against different moral theories, principles, reasons, and positions. Nevertheless, the methods by which professional ethicists or moral philosophers address substantive moral issues do not differ in kind from the methods used to address those issues by ordinary persons unschooled in the formal study of moral philosophy. Ethics commissions

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Society's Choices: Social and Ethical Decision Making in Biomedicine typically have diverse membership in order to ensure diverse experience, training, and viewpoints required by the diversity of considerations noted above that bear on their overall recommendations, not to represent diverse approaches or methods of doing ethics. I will have more to say about the role of this diversity below. METHODS OF MORAL REASONING-IN MORAL PHILOSOPHY AND IN ETHICS COMMISSIONS One reason some believe that moral reasoning as done in moral philosophy is different from public moral reasoning as done by ethics commissions is what I consider a mistaken view about the nature of moral reasoning in moral philosophy or in public ethics commissions, or in both. Understanding the respects in which these accounts are mistaken or confused will help clarify the appropriate common method which both moral philosophy and public moral reasoning can and do employ. Deductivism Some believe the method of reasoning by which public ethics commissions address ethical issues in public policy is different from the method of moral reasoning in moral philosophy from a mistaken view about the latter. In this view, which I shall call deductivism, the philosophical approach to moral reasoning in applied and policy contexts ideally consists in employing the true or correct moral theory and principles, together with the empirical facts relevant to their application, to deduce logically the correct moral conclusion for the case or policy in question. When the issue is not what it is morally correct to do in a particular case, but instead what public policy should be on an ethical question like whether voluntary euthanasia should be permitted, the moral calculus will be more complex. Assume for the sake of illustration that the correct moral theory is some form of consequentialism or utilitarianism, according to which an action is morally right just in case it has at least as good consequences for human well-being as any alternative action open to an agent. When the moral issue is about the evaluation of a public policy, the calculation is much more complex since it is then necessary to estimate the effects over time of alternative policies on the well-being of all who would be affected by the alternative policies. In the case of voluntary euthanasia, the possible effects to take account of would include positive effects like the relief of suffering and giving people control over the circumstances of their dying, together with negative effects like possible abuse of the policy for purposes of controlling costs or possible erosion of trust in the medical profession. The empirical determination of the consequences would be difficult, com-

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Society's Choices: Social and Ethical Decision Making in Biomedicine plex, and controversial, and there would be much ineliminable uncertainty. But deductivism provides a method of moral reasoning that at least in principle yields right answers to the moral problems of policy that ethics commissions face. Once the likely effects on the well-being of the various affected parties are determined, the consequentialist moral principle can be used straightforwardly and deductively to determine which alternative policy is morally right or justified. The truth or correctness of the consequentialist theory would solve the problem of justifying the commission's policy recommendations by transferring its truth to the conclusion that whichever alternative policy will best promote well-being is morally right or correct. Nothing about the general method of deductivism depends, of course, on the correct theory being consequentialism. If instead the correct moral principle, is that the intentional killing of an innocent person is always wrong, that principle, together with the premise that euthanasia is the intentional killing of an innocent person, deductively yields the conclusion that euthanasia is morally wrong. Is deductivism a feasible and defensible account of how moral reasoning is and should be done either in policy contexts or in moral philosophy? One obvious problem is that it does not seem an accurate account of how ethics commissions in fact function. Most people, including most members of such commissions, have no relatively comprehensive, or even more limited, moral theory that they know, or even believe, to be true or correct, and so it is hardly a surprise that we do not find them using and applying one in practical contexts. Most people are largely ignorant of philosophical work in developing general moral theories and principles, and yet they nevertheless do reason and have moral views about concrete moral issues like euthanasia. So deductivism is certainly not an accurate description of the moral reasoning that real people typically do in applied or policy contexts. Defenders of deductivism might, nevertheless, respond that it is the method used in moral philosophy and is how people ought to do moral reasoning. Is deductivism a defensible account of moral reasoning? The central difficulty with deductivism is that there is no single comprehensive moral theory, nor even theories or principles of more limited scope, which is agreed to be true or correct and so could be deductively applied to policy issues. For example, even if there were agreement that the overall effects on human well-being of permitting voluntary euthanasia would be positive, some people nevertheless would still believe that because euthanasia is the deliberate killing of an innocent person, it is morally wrong and should not be permitted. What began as a specific disagreement about what public policy should be about euthanasia has shifted to a more fundamental disagreement about whether consequentialism is the correct or true moral theory, or whether instead duties to protect innocent

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Society's Choices: Social and Ethical Decision Making in Biomedicine human life are paramount. Those who disagree on the policy will frequently do so because they do not agree about which moral principles or theories are correct. Consequently, so long as the different moral principles and theories are being correctly applied, moral disagreement about a particular policy will be reproduced in disagreement about the correct general broader principles or theory. So if moral reasoning should begin with the correct general moral theory and its principles, which are then deductively applied to the particular policy in question, we face the embarrassment of having no agreement about what are the correct theory and principles to employ. To make matters worse, if a moral theory or moral principles can be true or false, correct or mistaken, as deductivism requires, then even were there agreement about which principles and theory are true or correct, this would be compatible with all parties to that agreement being mistaken. The existence of disagreement about which general moral principles and theory are true or correct would not be an insuperable barrier to deductivism if there were agreement about the criteria for determining which principles and theory are true or correct. Disagreement about which principles and theory are correct then might only reflect a mistaken application of those criteria by one party to the disagreement. I will not canvass here the different views on this issue, but will only note that there is no agreement in philosophical ethics, or in ordinary morality, about the criteria which would establish general moral principles or a general moral theory to be true or correct. A final important barrier to deductivism is that, even if there are basic moral truths, there is no agreement or assurance that they are to be found or established at the level of general moral principles or theories, which through application could then transfer their truth to conclusions about particular policies which ethics commissions address. Deductivism as a method of moral reasoning takes a position on how the justification of moral judgments is secured that is commonly called foundationalist. A foundationalist account of justification in moral reasoning requires that some moral beliefs, which might be at any level of generality-the most general moral principles (like the consequentialist principle), very specific judgments about concrete cases, or moral beliefs at any level of generality in between-can be established to be true or correct.6 These foundational moral truths, as we might call them, have foundational status in moral reasoning in the sense that all other moral judgments gain their justification by being derived through sound reasoning from them. Foundationalism assigns privileged epistemic status regarding truth or correctness to some moral beliefs-foundational status-with the justification of all other moral beliefs coming from their being deductively derived from the foundational beliefs.

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Society's Choices: Social and Ethical Decision Making in Biomedicine ters of fact. There is in addition at least one important feature which should likewise weaken our confidence specifically in our moral judgments, a condition that experience tells us often leads to moral judgments we later come to believe were mistaken. It is that what we decide morally to believe or do will importantly affect our own interests-this often leads us to rationalize in the pejorative sense, that is, to find some purported rationale for why we are not morally required to do a burdensome or unwanted action that we would have no trouble concluding others morally must do. Of course, when our interests are importantly at stake this often leads us to give more careful attention to the issue at hand. This condition does not rule out considered moral judgments, but warns us to look carefully for this form of rationalization. With this qualification, considered moral judgments then are, first, judgments made in the absence of conditions like those just noted that we know from experience often lead to mistakes. There is a second aspect of considered moral judgments that needs to be brought out. With empirical judgments about matters of fact, our confidence in a judgment is increased, other things equal, the more fully we have been able to consider all relevant evidence that bears on the issue. While disputes about empirical matters of fact often bear on moral questions as well, moral judgments have specifically moral reasons which support them. Considered moral judgments then are also judgments made as a result of having fully considered the reasons that support them. In the ideal or limiting case, this would involve fully considering to the deepest level possible the nature of the reasons to which one would appeal in attempting to justify one's judgment. In the example above of voluntary euthanasia, this would involve fully probing one's moral views about killing and any factors that bear on one's views about killing in the context of euthanasia. Any example like this in which different people disagree brings out another important feature of evaluating the reasons in support of our moral judgments-this evaluation involves not just exploring as fully as possible the reasons in support of one's own judgment or position, but also considering all possible reasons and arguments against one's own position and in support of alternative positions. Until one has examined what can be said both for and against all plausible alternative positions on a particular issue, one will not have fully considered all alternatives, and all that can be said for and against all alternatives, to one's own position. A third aspect of considered moral judgments and the critical screening process which produces them is that the process of considering alternative positions and evaluating the reasons that support them on any issue typically has both an intrapersonal and an interpersonal component. It will often begin as an intrapersonal process as one initially thinks about the issue oneself; but then it should expand to an interpersonal process as well, because we know from experience that our moral vision is often enlarged

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Society's Choices: Social and Ethical Decision Making in Biomedicine by discussion and reasoning with others and by confronting the positions and arguments of others, either in discussion or in print. Thus at the limits, arriving at one's considered moral judgment about a particular action or policy will involve considering all the reasons that can be offered by anyone for and against any alternative position, choice, or decision on the matter at hand. A practical implication for ethics commissions is that having diverse membership helps ensure a process in which diverse moral perspectives, experience, and views are brought to bear in the commission's deliberations. Reflective Equilibrium In criticizing particularism, I argued that it is impossible to give reasons for moral judgments while at the same time restricting the implications of judgments solely to the particular case at hand. By their very nature, moral reasons can apply to other cases beyond the specific case in which they are being employed. Sometimes these reasons have substantial scope or generality and so potentially apply to many other moral choices and evaluations that people face. We might therefore say that people's moral beliefs, and in turn their considered moral judgments which have survived the critical screening process I have just sketched, come at all levels of generality. Now a substantive or normative moral theory can be briefly characterized for my purposes here as a small body of relatively general principles applying to the objects of moral evaluation in a given domain. While the domain of a maximally comprehensive moral theory would be all possible objects of moral evaluation, most people at best hold less comprehensive theories, or what are partial theories or theory fragments from the more comprehensive perspective. This means that, although deductivism may be mistaken in holding that moral reasoning and justification begin from a moral theory already and independently established as true and which then could be somewhat mechanically applied to particular cases, it is correct that at least parts or fragments of moral theories are either implicitly or explicitly appealed to in reasoning about particular cases. It is this scope of moral reasons-that they always can apply to cases beyond the one at hand-that gives considerable force to the requirement of consistency in moral reasoning: consistency requires accepting the implications of the reasons or principles to which one appeals in a particular case for the other cases to which they also apply. A few important additional aspects of the appeal to general moral principles need to be emphasized. Since our considered moral judgments and beliefs include general moral principles, these principles can often be appealed to in reasoning about particular cases or policies. For example, some principle of equality

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Society's Choices: Social and Ethical Decision Making in Biomedicine of opportunity is an important component of American moral and political culture, and can be used to help decide what kind of inequalities are morally acceptable in access to health care. This much is true about deductivism-sometimes we may have greater moral conviction about a general moral reason or principle than we do about a particular judgment concerning a concrete case or policy, and so we largely form or revise our moral judgment about the case or policy to fit the more general reason or principle that applies to it. Our moral conviction about the case or policy is then principally derived from our conviction about the more general reason or principle. Different moral judgments about particular cases or policies as well as different general moral principles are held with different degrees of conviction by any individual, even at the end of the critical screening process. This is important for understanding how internal conflicts within an individual's moral views should be resolved. When there is conflict between our moral judgments about particular cases or policies and our moral principles, as often occurs, no systematic priority can be assigned either to the judgments about the particular cases and policies or to the general principles regarding which should be retained and which revised or abandoned in the attempt to eliminate the inconsistency in our moral views. In removing the inconsistency in order to reach what Rawls has called ''reflective equilibrium" between an individual's particular judgments and general principles, the revision should be made so as to leave the individual with a consistent view that retains as much overall conviction as possible. Sometimes the initial judgment about the particular case or policy will be revised or abandoned, sometimes the more general principle. When an ethics commission is seeking interpersonal consensus among its members, or in the broader society, the resolution of conflicts will be more complex than, but in some respects similar to, this intrapersonal process. Compromises between individuals should be sought which require different individuals to make concessions at points of least conviction, scope, and importance in their views, and with a presumption for some rough equality in the concessions that individual members make to the others. Foundationalist accounts of justification, of which deductivism is one instance, hold that some moral beliefs have privileged status regarding truth and/or justification, and so are not subject to revision in the case of conflict with other judgments lacking this privileged status. In the different account of justification sketched here, usually called coherentist, no judgments are assigned such privileged status that they never should or could be abandoned or revised. In any instance of conflict between particular judgments and general principles, it is an empirical matter, to be determined on a case-by-case basis, which carries least conviction and could be revised with least cost to a particular individual's other moral convic-

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Society's Choices: Social and Ethical Decision Making in Biomedicine tions. To seek reflective equilibrium is to seek the consistent, comprehensive set of considered moral judgments at all levels of generality, including both judgments about particular cases and general moral principles, which carries for the individual the greatest overall conviction. Besides this role in reflective equilibrium, general moral principles and theories also play a more direct role in justifying moral judgments about particular cases or policies which is analogous to how scientific theories provide explanatory force to a domain of phenomena. A central function of theories in natural and social science is to provide order and structure to a body of observations or data about the world that would otherwise be merely a large set of unconnected data. Scientific theories thereby produce gains in understanding: by displaying a structure and order in the data, they show us the variables and causal relations that explain what would otherwise be a disordered and unrelated mass of observations or phenomena. In this respect, it is the same with moral theories. In morality, the analog to the observation statements and data that a scientific theory explains is the particular moral judgments about some range of cases which the more general principles of a moral theory, or of a partial moral theory, explain. Because the principal role of moral judgments is to guide action, unlike both data and theories in science whose principal roles are to guide belief, moral judgments are subject to a special worry. The worry is that they may be no more than a hodgepodge of thinly veiled rationalizations and biases reflecting our own self-interest, prejudices, and arbitrary preferences. General moral principles or theories can help allay this worry by explaining these judgments: they are shown to fit, and to be derivable and made from, a coherent, unified moral conception. We come to see that our particular moral judgments have a coherent, identifiably moral source, heretofore likely only implicit, and are not just a cover for our prejudices and self-interest. The principles and theory display those judgments as recognizably moral and make the moral basis lying behind them subject to explicit critical evaluation. This can in turn increase our conviction in particular judgments because we come to see that they fit within or have the same basis as, other judgments about which we may have additional and/or more confidence. In this coherentist account of justification no particular part of a person's overall moral beliefs or conception has any privileged status with regard to truth, correctness, or justification. Instead, each component of the comprehensive moral conception gains part of its justification from all the rest of the moral conception of which it forms a part. Fully coherent and comprehensive general principles or theories covering all of one's moral judgments are more than most people can in fact achieve. For most of us, there is no single, unified moral framework from

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Society's Choices: Social and Ethical Decision Making in Biomedicine which all our particular moral judgments are made or can be shown to follow. In fact, I believe that for most people there are multiple different and independent sources of moral value, or parts of their overall moral view, with no single deeper unified account of those parts. One of the central problems for applied ethics and practical moral thinking and deliberation is giving an intelligible account of how the unity of moral deliberation and action is possible, even for a single individual, in the face of this lack of unity or full coherence in the individual's moral beliefs or overall moral conception created by these different, independent components of the person's morality.9 Of course, if we look across a culture or society, this diversity of sources of moral value is greater still-and is one of the greatest challenges public ethics commissions face. This process of reaching one's considered moral judgments in reflective equilibrium is an ideal which in practice can only be more or less approached. Besides the obvious limitations of time and effort, there are always limitations at any point in time on the alternative positions on any issue that we and others can imagine, as well as on the arguments that we and others can think of for and against any alternative. So even if this ideal were fully realized at any point in time, we could never be sure that in the future we or others would not think of new alternatives and/or arguments, perhaps on the basis of new experience, that would change our minds. This critical screening process, even in its ideal form, never warrants absolute certainty about any particular moral judgment that could put it beyond further question. While this ideal of considered moral judgments in reflective equilibrium is never fully achievable in practice, it is useful nevertheless because it specifies an ideal process by which all possibly relevant reasons and arguments available to anyone and bearing on a moral issue can be given due consideration; the shortcomings and more restricted focus of moral reasoning in the real world can be measured against this ideal. There is one important respect in which the ideal process of moral reasoning at which a public ethics commission should aim differs from what I have just sketched for individuals. It will rarely, if ever, be appropriate for an ethics commission to seek, much less present in its reports, a single fully comprehensive and determinate moral conception in support of its analyses and recommendations, even if it thought that possible. It will usually be enough to present the principal reasons and arguments that bear on and support the specific policy recommendations it makes. Often this will require criticizing alternative positions and/or responding to natural objections to its own positions and recommendations. In the example of euthanasia discussed above, the commission might at most offer a general analysis and argument on the wrongness of killing, and the kinds of cases, if any, in which killing can be morally justified which bear on eutha-

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Society's Choices: Social and Ethical Decision Making in Biomedicine nasia. Exploring the implications of the commission's argument and position for other cases of killing, for example, killing in war or capital punishment, would be unnecessary, indeed undesirable, because a source of unnecessary controversy and a diversion of attention from the commission's policy focus on euthanasia. For the same reasons, presenting an entire moral theory or a complete set of moral principles would be all the more unnecessary and uncalled-for given the policy focus. Nevertheless, the process of moral deliberation in which the commission engages, together with the results of that process which it presents to the public in its reports, is properly understood within this broader account of moral deliberation, reasoning, and justification. We noted above that one respect in which general principles and theories help justify particular moral judgments is by showing them to be made from a coherent and unified moral conception. There are two further respects in which moral judgments that have survived the critical screening process and reflective equilibrium are justified. First, they are justified because they are made in relatively ideal conditions for judging, that is, in the absence, to the extent possible, of conditions that we know from experience often lead to mistakes; as noted above, these will include conditions leading to mistakes in judgments generally, as well as conditions leading to mistakes in moral judgments in particular. Second, they will have survived a process of critical examination in which all arguments both for and against them, as well as in support of and against alternative conflicting positions, have received due consideration. In both of these respects, considered moral judgments in reflective equilibrium are justified because they have survived a maximally broad critical screening process. To repeat, this is not to say that we may not later come to change our view, and/or come to believe that our earlier conclusions were mistaken. Even when our moral judgments have been maximally subjected to arguments for and against both them and other alternative positions, there are limitations in our and others' moral thinking at any point in time. Thus, just as with justified empirical beliefs, justification does not provide any guarantee of the truth or correctness of our moral beliefs. Some readers may object that this account of moral reasoning and justification, which begins from the moral beliefs we happen to have at any point in time, is unduly conservative. Our moral beliefs are a result of our experience and the socialization process to which we have been subject. Consequently, those beliefs will likely reflect the values and moral beliefs predominant in our culture and society, and be biased in favor of the status quo. But this objection is misplaced. The critical screening process for reaching considered moral judgments, which describes an ideal of considering all arguments for and against both the particular moral judgment or position with which one began, as well as all judgments or positions which

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Society's Choices: Social and Ethical Decision Making in Biomedicine are alternatives to it, asks us to consider all criticisms of and alternative perspectives on the status quo, no matter how radical. Failures to consider sufficiently radical criticisms or alternatives will be failures of our critical and moral vision or will, to some degree unavoidable, but not failures fostered by the method of moral reasoning that I have described. Relativism and the Subjectivity of Moral Judgments Is the method of moral reasoning that I have sketched for use both by individuals and by public ethics commissions objectionably relativist? Moral relativism is usually understood as the view that different incompatible moral beliefs can be true for different individuals, groups, or societies. In this view, whether a moral judgment is true or correct will depend on who is making it. One of the central problems of moral methodology is how the justification, rather than the truth or correctness, of the moral judgments of either an individual or a group, such as an ethics commission, can be established. From the standpoint of justification, the problem of relativism is whether incompatible moral judgments can each be justified for different individuals or groups. It is a familiar point that even in the case of judgments that most people believe are noncontroversially capable of being either true or false, or correct or mistaken, such as empirical judgments about matters of fact, one individual may be justified in accepting a judgment as true that another individual can be justified in rejecting as false. This is because different people may have different evidence available to them bearing on the judgment in question, and an individual's justification for accepting a belief depends on the relevant evidence he or she has, or should have. If evidence tending to confirm or disconfirm a particular belief is available to one individual but unavailable to another, they can each be justified in holding beliefs both of which cannot be true. So the question about the relativism of moral judgments is whether different individuals with all the same empirical or factual information and beliefs relevant to a moral issue can be justified in holding incompatible moral judgments on that issue. Another way of putting this question is whether some moral disagreement can be in principle, not just in practice, rationally irresolvable. Much moral disagreement is in practice irresolvable when people cling irrationally to beliefs in the face of evidence of their falsity, make mistakes in their reasoning that cannot be corrected, and so forth. Moral disagreement that is irresolvable in principle is clearly a more serious problem for any account of public moral discourse because it means that even when different people fully conform to the standards for that moral discourse, there may in the end be no way of resolving their moral disagreement. It should be clear that the account of moral reasoning and justification

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Society's Choices: Social and Ethical Decision Making in Biomedicine sketched above, which employs a critical screening process together with reflective equilibrium, does allow for the possibility of moral disagreement that is in principle rationally irresolvable, and for the possibility that different individuals may each be justified in holding incompatible moral judgments; we can call this justificatory relativism. Of course, we will not know that any particular moral disagreement, such as among members of an ethics commission, is in fact irresolvable, either in principle or in practice, until their different views have gone through the critical screening process and achieved reflective equilibrium. Any conclusion that a particular moral disagreement is in principle irresolvable should only come at the end of a full, but failed, attempt to resolve the disagreement. The possibility that moral disagreement can be even in principle irresolvable is compatible with moral disagreements rarely, or even never, in fact turning out to be such. Some moral disagreement does, I believe, turn out to be irresolvable even in principle, but not as often as many people today suppose. Very often disagreement that initially appears to be moral turns out on closer analysis to be empirical disagreement about matters of fact. Justificatory relativism implies that moral judgments are correctly understood to be in one sense subjective. Claims about the subjectivity and objectivity of morality and moral judgments are commonly so poorly defined and used in so many different senses that they often bring more confusion than clarity. What I have in mind here by the claim of subjectivity is this. At the end of the day, so to speak, after the process of moral reasoning and justification that I have sketched here has been completed, a particular individual's moral judgments, principles, or theory will depend on what that person is prepared on reflection to accept, to try to live by, and to judge him- or herself and others by. The same is true for groups of people living together in a society, and for bodies they establish like ethics commissions to help them address moral issues of public policy. Choice of and commitment to a way of life in this broad sense cannot in the end be avoided, and different individuals can choose and pursue different ways of life. But this hardly implies, as R.M. Hare pointed out long ago, that such choice is ungrounded or arbitrary; the choice I am describing here is choice after everything of relevance to the choice has been given due consideration, which is exactly the opposite of arbitrary choice understood as choice for which we have no basis. 10 The Appeal to an Overlapping Consensus One important qualification must be put on the account of moral reasoning I have sketched above for its use in public moral discourse in contexts in which identifying or forging a consensus about public policy, or making recommendations about public policy, is the goal. In more recent

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Society's Choices: Social and Ethical Decision Making in Biomedicine development of his theory of justice, John Rawls used an "overlapping consensus" to capture the idea that people who hold quite different comprehensive moral, religious, philosophical, and cultural views might share an overlapping consensus about principles of justice and about the political reasons that support those principles.11 If people appeal to their comprehensive moral conceptions, including the full moral, religious, philosophical, and cultural underpinnings of those views, they will often give different and conflicting reasons or support for particular substantive positions on which they agree. The "fact of pluralism"-that different citizens hold different comprehensive moral, religious, and philosophical conceptions-is a permanent feature of free liberal democracies. It implies that the ethical and political bases that all citizens can reasonably accept for public policies in a liberal democracy cannot rest on these full comprehensive conceptions. The task of ethics commissions is often to try to find a common public moral discourse that can yield a consensus on which public policy can be formed among individuals and groups otherwise in disagreement on many important matters. The role of an overlapping consensus for policy raises complex and controversial issues that cannot be explored here, but one point needs at least to be mentioned. In a liberal democracy, public policy which requires everyone to act in specific ways should not be based on sectarian views reasonably rejected by substantial segments of the population. This is a goal that cannot always be realized for all policy, certainly in practice, but I believe in theory as well; still, it is an important goal nonetheless. It implies, for example, that public policy should not be based on specific religious beliefs that many do not share. Not just public policies themselves, but the reasons that are offered in their support in policy debate, whether in ethics commissions or other settings, should not be reasons that others can reasonably reject as a basis for public policy in a pluralistic society. The common agreement to search for an overlapping consensus in public policy, a search in which an ethics commission can sometimes play a significant role, should be understood to mean not only that we seek to find or forge a consensus on particular policy issues, but that we also seek consensus on the kinds of reasons that we will offer in support of policy positions. One crucial aspect of this latter is the consensus on what reasons are appropriate for policy debate. This is a qualification on the account of public moral reasoning on policy questions sketched above for ethics commissions, since the full exploration of one's reasons for one's moral positions and judgments will take one deeply into the details of one's comprehensive religious, philosophical, and moral views. To appeal to those comprehensive views is to go beyond what should be the basis of public policy. This restriction on reasons that are appropriate in the policy debates of an ethics commission is an

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Society's Choices: Social and Ethical Decision Making in Biomedicine implication of wanting public policy in a liberal democracy to be justified as far as possible by shared reasons that all could accept as reasonable. CONCLUSION I shall emphasize only two general points in conclusion. The first is that the process of public moral discourse in which an ethics commission engages is not fundamentally different in its nature from the moral reasoning in which individual members of the society engage in public and private contexts. The second point is that while the process of public moral discourse, even properly carried out, does not guarantee the truth or correctness of the conclusions it yields, it can provide us with a warrant for accepting them as a justified basis for public policy. NOTES 1.   While some people make a distinction, although usually not a clear one, between "ethics" and "morality," I shall use them interchangeably in this paper. 2.   D. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making. New York: Basic Books (1991); Henry Beecher, "Ethics and Clinical Research," New England Journal of Medicine 74 (1966) 1354-1360. 3.   President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment. Washington, D.C.: U.S. Government Printing Office (1983). 4.   Brock, D.W. "Voluntary Active Euthanasia," Hastings Center Report 22 (March-April 1992) 10-22, and reprinted in Dan W. Brock, Life and Death: Philosophical Essays in Biomedical Ethics. Cambridge University Press (1993). 5.   Rawls,J. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. 6.   Foundationalists differ on how this privileged truth status can be secured for some moral judgments, as well as on what the privileged status is, e.g., contingent or necessary truth. Intuitionists like H. A. Prichard and W. D. Ross both held that some moral statements are necessary truths, although they disagreed about whether the moral statements that had this privileged truth status were concrete, all-things-considered moral judgments about particular actions, or general principles specifying moral duties such as to keep promises and not to deceive, which could be overridden in some particular circumstances. 7.   Jonsen, A.R. and S. Toulmin, The Abuse of Casuistry: A History of Moral Reasoning. Berkeley: University of California Press, 1988. To what extent Jonsen and Toulmin are examples of what I call Particularists is unclear. They do endorse a "stronger claim-namely that moral knowledge is essentially particular so that sound resolutions of moral problems must always be rooted in a concrete understanding of specific cases and circumstances .... The stronger account sees the primary locus of moral understanding as lying in the recognition of paradigmatic examples of good and evil, right and wrong." p. 330 (Italics in original) This suggests that they do accept the epistemic aspect of what I call Particularism that moral truth or knowledge is to be found at the level of particular cases, their "paradigmatic examples." It may be that their account of the actual process of moral reasoning, which is centrally a matter of fitting specific actual cases to the paradigmatic examples, does make room for general principles in the manner of reflective equilibrium discussed below, although I am unsure of this. But it is unlike Rawlsian reflective equilibrium in giving judgments about particular

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Society's Choices: Social and Ethical Decision Making in Biomedicine     cases privileged epistemic status, and that is the only respect in which I am interpreting them to be Particularists here. 8.   Rawls, op. cit. 9.   Thomas Nagel has stressed this point in "The Fragmentation of Value," in Moral Questions. Cambridge: Cambridge University Press (1979). 10.   Hare, R.M. Freedom and Reason, Oxford: Oxford University Press (1963) 11.   Rawls, J. Political Liberalism. New York: Columbia University Press (1993).