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A Theoretical Framework for Integrating Ethics and Law
(25 April 2016)
Durham CELLS (Centre for Ethics and Law in the Life Sciences), as its name implies is concerned with both ethical and legal evaluation of the activities that constitute the life sciences. There are many views about the nature of ethical evaluation, not only about what conduct is permissible/impermissible (leading, e.g., to disputes about whether it is only human beings who really matter, or whether human beings owe duties to other animals and life forms for their own sakes, as well as over whether it is only humans with certain qualities that have rights and to whom duties are owed directly) and, indeed, about whether ethical ‘evaluation’ is anything more than an expression of wholly subjective preferences that cannot be rationally adjudicated. Furthermore, there are disputes about the relationship between ethics and law.
To be a member of Durham CELLS does not require subscription to any particular view about these matters. Any normative evaluation of the activities of the life sciences; indeed, any investigative or analytic activity that can contribute to such normative evaluation can contribute towards our goals.
This said, a number of members of Durham CELLS (including myself) do have a particular take on these issues, which we think, at least in a society that claims to be built on respect for human rights, provides a strong framework for ethico-legal evaluation. Indeed, Durham CELLS, in conjunction with the Law School at Bristol University recently held a two-day workshop on this approach which has led to a volume of essays that will shortly be published.
Both evaluative ethics and law concern reasons for action. Moral evaluation (as a particular kind of ethical evaluation) and law are concerned with a special kind of reason for action, with reasons in the form of duties and rights. What is special about these is that the claim that anyone has a duty to do something (S)is the claim that this someone ought (has sufficient reason) to do S, whether or not the person wants to do S or agrees that he or she ought to do S. And rights are related to duties in that to hold that someone has a right to do S is to hold that someone else, at least, has a duty to act in accord with this right. Traditionally, however, moral duties and rights are characterised as impartial, which is to say that every agent’s actions are governed by a principle that requires every agent to be treated unconditionally with equal concern and respect for his or her agency.
One of the most vexed questions in ethical theory concerns whether or not there are or even can be any moral rights and duties, so defined.
According to Immanuel Kant and Alan Gewirth, there are things that agents ought to accept as requirements of understanding what it is for them to be agents per se. And both argue that it follows from this that any such requirement must be accepted by any other agent in order for that agent to understand what it is for that agent to be an agent. What agential self-understanding requires an agent to accept is that each agent must consider its humanity (agency) to be an end in itself and not merely a means to some arbitrarily chosen end. Consequently it is a categorical imperative (an unconditional duty) for every agent to treat the agency of every person equally as an end in itself, never merely as a means.
According to Alan Gewirth, specifically, an agent misunderstands what it is to be an agent if the agent does not accept that if the agent chooses to do E and X is necessary for the agent to do E, then the agent must secure X or choose not to pursue E. This is the Principle of Hypothetical Imperatives (PHI). If there is something X that an agent needs in order to be able to act at all or (regardless of the agent’s purposes) to act successfully (a generic condition of action) then the agent ought to act to secure X, unless the agent is willing to suffer generic damage to its ability to act. Generic conditions of action include life, and the necessary means to it, mental and emotional equilibrium, and accurate information about one’s needs and purposes. So, e.g., starvation, illness, lack of shelter, torture, panic, being lied to, and being unable to rely on promises given to one, all cause generic damage to one’s ability to act or to act successfully.
Gewirth, however, claims that because agential self-understanding requires one agent, call her ‘Agnes’ to accept that she ought to secure her generic conditions unless she is willing to suffer generic damage to her ability to act, then not only must Brian (any other agent) accept that he ought to secure his generic conditions unless he is willing to suffer generic damage to his ability to act, but Agnes must accept that she ought to guide her own action by Bran’s need to secure the generic conditions if she can do so without disproportionate damage to her own generic conditions unless Brian is willing to suffer generic damage to his ability to act, and vice versa. In other words, agential self-understanding requires agents to consider that they have rights to the generic conditions of action under the will theory of rights. This is Gewirth’s Principle of Generic Consistency (PGC).
If this is correct, then, because only agents are intelligibly thought of as addressors and addressees of practical precepts of any kind, it is incoherent to claim that anyone has any rights or duties that are inconsistent with the PGC. More precisely, any prescription to the effect that someone has a right or duty to do S, no matter what its source and justification, cannot intelligibly be held to be something that anyone ought or may comply with if action in accord with this prescription is contrary to the PGC. The PGC is the supreme principle of practical reason. So, it follows that the PGC is the supreme principle of law, in the sense that no prescriptions of positive law and no institutions of positive law can any normative validity if they are contrary to the PGC (which is, as we have defined a moral principle) the supreme principle of morality.
We admit that the claim that the PGC has this status is highly controversial. Indeed, Bernard Williams regards ‘morality’ as such a pernicious idea that ethics needs to abandon the concept altogether.
However, it should be clear (see http://dro.dur.ac.uk/11158/) that if acceptance of the PHI is a requirement of agential self-understanding and there are generic conditions of action (which is hardly contestable) then anyone who accepts the moral point of view (for whatever reason) (and this includes Kant himself, Karl Otto Apel, Jürgen Habermas, John Rawls, communitarians, and utilitarians like RM Hare ought to accept that the PGC is the supreme principle of morality at least (which entails that they ought to hold that all practical reasoning unconditionally ought to be in accord with the PGC, or give up their commitment to the moral point of view).
As regards the significance of this for positive law, according to the Universal Declaration on Human Rights (UDHR) 1948, all human beings are equal in dignity and rights, which are inalienable in being possessed by human beings simply by virtue of being human. This being so, since it is insincere to grant a right and not grant a right to the necessary means to exercise it, acceptance of the UDHR requires acceptance that all human agents have rights to the generic conditions of action. Then, on the basis that acceptance of the PHI is a requirement of agential self-understanding, it follows that no rights and duties are acceptable under the UDHR that are inconsistent with the PGC. It follows too, that all legal instruments and systems purporting to give effect to the UDHR, and all member nations of the UN must accept the PGC as the supreme principle of legally permissible action.
On this basis, we offer the PGC as a framework principle for integrating ethical and legal analysis conditional upon acceptance of human rights as conceived by the UDHR.
This, of course, leaves various questions open. For example: what about rights of humans that are not agents? What about rights of non-human animals? We have answers to these, but these must be left for future blogs. However the following links provide information about some relevant work https://global.oup.com/academic/product/human-dignity-in-bioethics-and-biolaw-9780198268260?cc=nl&lang=en&)
Deryck Beyleveld BSc (Rand) MA (Cantab) PhD (UEA) FRSB
Professor of Law and Bioethics, Durham Law School
Professor of Moral Philosophy and Applied Ethics, Utrecht University
Director of Durham CELLS