The Tyranny of Principles Author(s): Stephen Toulmin Source: The Hastings Center Report, Vol. 11, No. 6 (Dec., 1981), pp. 31-39 Published by: The Hastings Center Stable URL: http://www.jstor.org/stable/3560542 Accessed: 28/06/2010 08:01 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=hastings. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
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THE ETHICSOF DISCRETION REGAINING
The
Tyranny
of
Principles
by STEPHENTOULMIN
If
thiswerea sermon(andperhapsit is), its textwouldbe
the quotationattributedto H. L. Menckenthathangs in the staff lounge at The HastingsCenter: For every humanproblem,thereis a solutionthatis simple, neat,andwrong.' Oversimplificationis a temptationto which moral philosophers are not immune, despite all their admirableintellectualcare andseriousness;and the abstractgeneralizationsof theoreticalethics are, I shall argue,no substitutefor a sound traditionin practicalethics. These days, public debates about ethical issues oscillate between, on the one hand, a narrowdogmatismthat confines itself to unqualifiedgeneral assertionsdressed up as "mattersof principle"and, on the other, a shallow relativism thatevades all firmstandsby suggestingthatwe choose our "value systems" as freely as we choose our clothes. Both approachessufferfrom the same excess of generality. The rise of anthropologyand the other human sciences in the early twentiethcenturyencourageda healthy sense of social and cultural differences; but this was uncritically takenas implyingan end to all objectivityin practicalethics. The subsequentreassertionof ethical objectivity has led, in turn, to an insistence on the absolutenessof moral principlesthat is not balancedby a feeling for the complex problemsof discriminationthat arise when such principles are applied to particularreal-life cases. So, the relativists have tendedto overinterpretthe need for discriminationin ethics, discretion in public administration,and equity in law, as a license for generalpersonalsubjectivity.The absolutistshave respondedby denying all real scope for personal judgment in ethics, insisting instead on strict constructionin the law, on unfeeling consistencyin public administration,and-above all-on the "inerrancy"of moral principles. I proposeto concentratemy attentionon this last phenomenon-the revival of a tyrannicalabsolutismin recent discussions aboutsocial and personalethics. I find it reflected in attitudestowardpolitics, public affairs, and the administrationof justice, as much as towardquestionsof "ethics" STEPHEN TOULMIN is professor,
Committee on Social
Thoughtand departmentofphilosophy, Universityof Chicago. This article is adaptedfrom a presentation at The Hastings Center's General Meeting held on June 19, 1981. It was also presented, in a somewhat different version, at Osgoode Hall Law School and will be published in that version in the Os-
goode Hall LawJournal.
The Hastings Center
in a narrowerand more personalsense. My main purpose will be to ask: What is it about our present situationthat inclines us to move in that direction?By way of reply, I shall arguethat, in all large industrializedsocieties and cultures-regardless of theireconomic and politicalsystemsethics, law, and public administrationhave recentlyundergone similar historical transformations,so that all three fields are exposedto the same kindsof pressures,face common difficulties,and sharein the same resultingpublicdistrust.And I shall try to show whatwe can learnaboutthose sharedproblems,and aboutthe responsesthatthey call for, by studyingthe commonorigins of our basic ethical, legal, and political ideas. All my centralexamples will be concernedwith the same generaltopic: the nature,scope, and force of "rules" and "principles"in ethics and in law. Threepersonalexperienceshelped to bringthese problems into focus for me. Three Personal Experiences Human Subjects Research. For several years in the
mid-1970s, I worked as a staff member with the National Commissionfor the Protectionof HumanSubjectsof Biomedical and BehavioralResearch, which was established by the U.S. Congress, with the task of reportingand making recommendationsaboutthe ethics of using humansubjects in medical and psychological research. Eleven commissioners-five of them scientists, the remainingsix lawyers, theologians, and other nonscientists-were instructedto make recommendationsaboutpublicly financed human experimentation:in particular,to determineunder what conditions subjects belonging to certain vulnerable groups(such as young childrenandprisoners)could participate in such researchwithoutmoral objection.2 Before the Commissionbegan work, many onlookersassumedthatits discussionswould degenerateinto a Babel of rival opinions. One worldly commentatorremarkedin the New England Journal of Medicine, "Now (I suppose) we
shall see mattersof eternalprincipledecidedby a six to five vote."3 But things did not work out that way. In practice, the commissionerswere never split along the line between scientistsand nonscientists.In almostevery case they came close to agreementeven aboutquite detailedrecommendations-at least for so long as their discussions proceeded taxonomically,takingone difficultclass of cases at a time and comparing it in detail with other clearer and easier classes of cases. Even when the Commission'srecommendationswere not unanimous,the discussionsin no way resembledBabel:the 31
commissionerswere never in any doubt what it was that they were not quite uncaniimousabout. Babel set in only
afterwards. When the eleven individual commissioners asked themselves what "principles" underlay and supposedly justified their adhesion to the consensus, each of them answered in his or her own way: the Catholics appealed to Catholic principles, the humanists to humanist principles,and so on. They could agree; they could agree whatthey were agreeingabout;but, apparently,they could not agree why they agreed about it. This experience promptedme to wonder what this final "appealto principles"really achieved. Certainlyit did not add any weight or certitudeto the commissioners'specific ethical recommendations,for example, about the kind of consent proceduresrequiredin biomedical researchusing five-year-oldchildren. They were, quite evidently, surer about these shared, particularjudgments than they were aboutthe discordantgeneralprincipleson which, in theory, their practicaljudgmentswere based. If anything, the appeal to principlesunderminedthe recommendationsby suggesting to onlookers that there was more disharmonythan ever showed up in the commissioners'actual discussions. So, by the end of my tenure with the Commission I had begun to suspectthatthe point of "appealingto principles" was somethingquiteelse: not to give particularethicaljudgments a more solid foundation,but ratherto squarethe collective ethical conclusions of the Commission as a whole with each individualcommissioner'sothernonethicalcommitments. So (it seemed to me) the principlesof Catholic ethics tell us more about Catholicismthan they do about ethics, the principles of Jewish or humanist ethics more aboutJudaismor humanismthanaboutethics. Such principles serve less as foundations,adding intellectualstrength or force to particularmoral opinions, than they do as corridorsor curtainwalls linking the moralperceptionsof all reflective human beings, with other, more general positions-theological, philosophical, ideological, or Weltanschaulich. Abortion. The years of the NationalCommission'swork were also years duringwhich the moralityof abortionbecame a matterof publiccontroversy.In fact, the U.S. Congress establishedthe Commission in the backwash of the SupremeCourt'srulingon the legality of abortion,following a publicdisputeaboutresearchon the humanfetus. And before long the public debateaboutabortionacquiredsome of the same puzzling features as the proceedings of the Commissionitself. On the one hand, there were those who could discuss the moralityof abortiontemperatelyand with discrimination,acknowledgingthat here, as in other agonizing humansituations, conflicting considerationsare involved and that a just, if sometimespainful, balancehas to be struckbetween differentrightsand claims, interestsand responsibilities.4That temperateapproachunderlaytraditionalcommon law doctrinesaboutabortionbefore the first 32
statutoryrestrictionswere enactedin the yearsaround1825. It was also the approachadopted by the U.S. Supreme Courtin the classic case, Roe v. Wade; and, most important, it was the approachclearlyspelled out by ThomasAquinas, whose position was close to that of the common law andthe SupremeCourt.(He acknowledgedthatthe balance of moral considerationsnecessarilytilts in differentdirections at differentstages in a woman'spregnancy,with crucial changes beginningaroundthe time of "quickening."5) On the otherhand, much of the public rhetoricincreasingly came to turn on "mattersof principle." As a result, the abortiondebatebecame less temperate,less discriminating, and above all less resolvable. Too often, in subsequent years, the issue has boiled down to pure head-butting:an embryo'sunqualified"rightto life" being pitted against a woman'sequallyunqualified"rightto choose." Those who have insistedon dealing with the issue at the level of high theory thus guaranteethat the only possible practicaloutcome is deadlock. Social WelfareBenefits. My perplexitiesabout the force and value of "rules"and "principles"were furthersharpened as the result of a television news magazineprogram about a handicappedyoung woman who had difficulties with the local Social Security office. Her Social Security paymentswere not sufficientto cover her rent and food, so she started an answering service, which she operated throughthe telephoneat her bedside. The income from this service-though itself less thana living wage-made all the difference to her. When the local Social Security office heardabout this extra income, however, they reducedher benefitsaccordingly;in addition,they orderedher to repay some of the money she had been receiving. (Apparently, they regardedher as a case of "welfarefraud.")The television reporteradded two final statements.Since the report had been filmed, he told us, the young woman, in despair, had takenher own life. To this he addedhis personalcomment that "there should be a rule to preventthis kind of thing from happening." Notice that the reporterdid not say, "The local office should be given discretionto waive, or at least bend, the existing rules in hard cases." What he said was, "There should be an additional rule to prevent such inequities in the future."Justice, he evidently believed, can be ensured only by establishingan adequatesystem of rules, and injustice can be preventedonly by adding more rules. Hence, the questions that arise from these experiences: Whatforce andfunctiondo rulesor principlestrulypossess, eitherin law or in ethics?Whatsocial andhistoricalcircumstancesmakeit most naturalandappropriateto discuss legal and ethical issues in the languageof "rules" and "principles"? Why are our own contemporarylegal and ethical discussionsso preoccupiedwith rules and principles?And to what extent would we do betterto look for justice and moralityin other directions? The Hastings Center Report, December 1981
Rules in Roman Law Far from playing an indispensablepart in either law or ethics, "rules" have only a limited and conditionalrole. The currentvogue for rules and principlesis the outcomeof certainpowerful factors in recent social history;but these factorshave always been balancedagainstcounterweights. Justice has always requiredboth law and equity, while moralityhas always demandedboth fairness and discrimination. When this essential duality is ignored, reliance on unchallengeableprinciplescan generate,or become the instrumentof, its own subtle kind of tyranny. My reading soon led me back to Peter Stein's Regulae Juris, which traces the developmentof the concept of a "rule" in Roman law from its beginnings to the modern era.6His accountof the earliestphases of Roman law was for me the most strikingpart. For the first three hundred years of Roman history, the legal system made no explicit use of the conceptof rules. The College of Pontiffsactedas the city's judges, and individualpontiffs gave their adjudications on the cases submittedto them. But they were not requiredto cite any general rules as justificationsfor their decisions. Indeed,they were not requiredto give reasonsat all. Their task was not to argue, but ratherto pontificate. How was this possible?How can any system of law operate in the absence of rules, reasons, and all the associated apparatusof bindingforce and precedent?Indeed, in such a situationcan we say a truesystemof law exists at all? Those questions require us to consider the historical and anthropologicalcircumstancesof early Rome. InitiallyRome was a small and relatively homogeneous community, whose members shared a correspondinglyhomogeneous traditionof ideas aboutjustice and fairness, propertyand propriety, a tradition having more in common with Sir Henry Maine's ideas about traditional"customarylaw" than with the "positive law" of John Austin'sProvince of JurisprudenceDetermined.7 In any such community the functionsof adjudicationtend to be morearbitralthanregulatory.Like laborarbitrators today, the judges will not be as sharply bound by precedent as contemporaryhigh court judges. So the disputes that the pontiffs adjudicatedwere typically ones about which the traditionalconsensus was ambiguous;the balance of rights and obligations between the partiesrequiredthejudgmentcall of a trustedand disinterestedarbitrator.In these marginalcases all that the arbitrator may be able to say is, "Having taken all the circumstancesinto account,I find that on this particularoccasion it would, all in all, be more reasonableto tilt the scale to A ratherthanto B." This rulingwill rest, not on the applicationof generallegal rules, but ratheron the exercise of judicial discriminationin assessing the balance of particulars.Initially,"pontificating"did not mean laying down the law in a dogmatic manner. Rather, it meant resolving marginaldisputesby an equitablearbitration,and the pontiffs had the trustof their fellow citizens in doing so. The Hastings Center
This state of affairs did not last. Long before the first Imperialcodification,Romanlaw began to develop the full apparatusof "rules"with which we ourselves are familiar. Stein suggests that five sets of factors contributedto this new relianceon regulae.8 First, as the city grew, the case load increasedbeyond what the pontiffs themselves could manage. Juniorjudges, who did not possess the same implicit trustas the pontiffs, were broughtin to resolve disputes; so the consistency of their rulings had to be "regularized."Second, with the rise of lawyeringas a profession, law schools were set up and regulae were articulatedfor the purposeof teachingthe law. Discretion,which had restedearlieron the personalcharactersof the pontiffs themselvesand which is not so easy to teach, began to be displacedby formalrulesandmoreteachableargumentative skills. Third, Rome acquiredan empire, and foreign peoples came underthe city's authority.Their systems of customary law had to be put into harmonywith the Roman system, and this could be done only by establishinga concordancebetween the "rules"of differentsystems. Fourth, the empireitself developeda bureaucracy,which could not operateexcept on the basis of rules. Finally, the intellectual discussionof law was pursuedin the context of Greekphilosophy. Although Cicero, for example, was a practicing attorney,he was also a philosophicalscholarwith a professionalinterestin the Stoic doctrineof the logos, or "universal reason." What followed the resulting proliferationof rules and laws is common knowledge. First, a functionaldifferentiation grew up betweentwo kindsof issues. On the one hand, therewere issues thatcould be decidedby applyinggeneral rules or laws, on the basis of the maxim that like cases shouldbe treatedalike. On the otherhand,therewere issues thatcalled for discretion,with an eye to theparticular featuresof each case, in accordancewith the maxim that significantlydifferentcases should be treateddifferently.This functionaldifferentiationbecame the ancestorof our own distinctionbetween legal and equitablejurisdiction. Second, the EmperorConstantinedecided as a matterof imperial policy to bringequitablejurisdictionunderhis personal controlby reservingthe equitablefunctionto his own personal court and chancellor.Out in the public arena,judges were given the menial task of applying general rules with only the minimum of discretion. Once legal proceedings were exhausted, the aggrieved citizen could appeal to the Emperoras parens patriae ("fatherof the fatherland")for the benevolentexercise of clemency or equity. Politically, this divisionof laborcertainlydid the Emperorno harm;but it also sowed the firstseeds of public suspicionthatthe Law is one thing, Justice another.9 Carriedover into the moder English-speakingworld, the resulting division between courts of law and courts of equity is familiar to readersof Charles Dickens. And althoughduringthe twentiethcenturymost Anglo-American jurisdictionshave merged legal and equitablefunctions in 33
the same courts,10it is still widely the case that equitable remediescan be sought only in cases where legal remedies are unavailableor unworkable-so that in this respect the dead hand of Constantinestill rules us from the grave. The Ethics of Strangers industrialsocieties clearly Life in late-twentieth-century has more in common with life in ImperialRome thanit has with the Rome of Horatiusat the Bridge or with Mrs. Gaskell's Cranford. Our cities are vast, our populationsare mixed and fragmented,our public administrationis bureaucratic, our jurisdictions (both domestic and foreign) are manyandvaried.As a result,the moralconsensusandcivic truston which the pontificateof early Rome dependedfor its generalrespect and efficacy often appearto be no more thana beguilingdream.The way we live now, people have come to value uniformityabove responsiveness,to focus on law at the expense of equity, and to confuse "the rule of law" with a law of rules. Yet the balancebetween law and equitystill needs to be struck,even if new ways need to be foundthatanswerournew needs. Fromthis pointon, I shall workmy way towardthe question:how, in our actualsituation, can that balance best be redressed? In law, in ethics, and in public administrationalike, there is nowadaysa similarpreoccupationwith generalprinciples and a similardistrustof individualdiscretion.In the administrationof social services, the demandfor equalityof treatment makes us unwilling to permit administratorsto "temperthe wind to the shorn lamb"-that strikes us as unfair,and thereforeunjust.1 (The equationof justice with fairness is thus a two-edged sword.) In the professions, a widespreadfear that professionalsare takingunfairadvantage of theirfiduciarypositionshas contributedto the recent wave of malpracticesuits. In the courts, judges are given less and less room to exercise discretion,and many lawyers view juries as no more trustworthythan judges; the more they are both kept in line by clear rules, or so it seems, the better.'2As for publicdiscussionsof ethics, the recognition of genuinemoralcomplexities,conflicts, andtragedies,that can be dealt with only on a case-by-case basis, is simply unfashionable.Victory in public argumentgoes, rather,to the person with the more imposing principle. Above all, many people involved in the currentdebate seem to have forgottenwhat the term "equity"actuallymeans. They assume that it is just a literarysynonymfor "equality."'3So, a demand for the uniform applicationof public policies leads to a submergingof the discretionaryby the rigorous, the equitableby the equal. Faced with judicial injustices, we react like the television reporter, declaring, "There oughtto be a law againstit," even where it would be more appropriateto say, "In this particularcase, the law is making an ass of itself." The same applies to the operationof our bureaucracies,and to the emphasis on principles in moraljudgments. 34
In all three fields, we need to be remindedthat equity requiresnot the impositionof uniformityor equalityon all relevantcases, but ratherreasonablenessor responsiveness (epieikeia) in applyinggeneral rules to individualcases.14 Equity means doing justice with discretionaround, in the intersticesof, and in areas of conflict between our laws, rules, principles, and other general formulas. It means being responsiveto the limits of all such formulas, to the special circumstancesin which one can properlymake exceptions, and to the trade-offsrequiredwhere differentformulas conflict. The degree to which such marginal judgmentscan be regularizedor routinizedremainslimited today, just as it was in early Rome. Faced with the task of balancing the equities of different parties, a judge today may well be guidedby previousprecedents;but these precedents only illuminatebroad maxims, they do not invoke formalrules.15Likewise, professionalpracticemay be describedin cut-and-driedterms as a matterof "routineand accepted"proceduresonly in the artificialcontextof a malpracticesuit. In the actualexercise of his profession, a surgeon, say, may sometimes simply have to use his or her own best judgment in deciding how to proceed conscientiously. Finally, in ethics, moralwisdom is exercisednot by those who stick by a single principlecome what may, absolutely and withoutexception, but ratherby those who understand that, in the long run, no principle-however absolute-can avoid runningup againstanotherequallyabsolute principle;and by those who have the experienceand discriminationneeded to balanceconflictingconsiderations in the most humaneway.16 By looking at the effects of changing social conditions and modes of life on our ethical perceptions,I believe we can best hit on the clues that will permitus to unravelthis whole tangleof problems.A centuryago in Anna Karenina Leo Tolstoy expresseda view which, thoughin my opinion exaggerated,is none the less illuminating.Duringhis lifetime Tolstoy lived to see the abolitionof serfdom,the introductionof railways,the movementof populationaway from the countryto the cities, and the consequentemergenceof modemcity life; andhe continuedto have deep reservations aboutthe possibilityof living a trulymorallife in a moder city. As he saw matters,genuinely "moral"relationscan exist only between people who live, work, and associate together:inside a family, between intimatesand associates, within a neighborhood.The naturallimit to any person's moral universe, for Tolstoy, is the distancehe or she can walk, or at most ride. By taking the train, a moral agent leaves the sphereof trulymoralactionsfor a worldof strangers, towardwhom he or she has few real obligationsand with whom dealings can be only casual or commercial. Whenever the moral pressuresand demands become too strongto bear, Tolstoy has Anna go down to the railway station and take a train somewhere, anywhere. The final ironyof Tolstoy's own painfullife was thathe finallybroke away from his home and family, only to die in the local The Hastings Center Report, December 1981
stationmaster's office.17 Matters of state policy and the like,
in Tolstoy's eyes, lay quite outside the realm of ethics. Throughthe figure of ConstantinLevin, he made clear his skepticismaboutall attemptseitherto turnethics into a matter of theory or to make political reform an instrumentof virtue.18
What Tolstoy rightly emphasizedis the sharpdifference that exists between our moral relations with our families, intimates,and immediateneighborsor associates, and our moralrelationswith completestrangers.In dealingwith our children, friends, and immediatecolleagues, we both expect to-and are expected to-make allowances for their individualpersonalitiesand tastes, and we do our best to time our actionsaccordingto our perceptionof theircurrent moods and plans. In dealing with the bus driver, the sales clerkin a departmentstore, the hotel barber,and othersuch casual contacts, there may be no basis for making these allowances,and so no chanceof doing so. In these transient encounters,our moral obligations are limited and chiefly negative-for example, to avoid acting offensively or violently. So, in the ethics of strangers,respectfor rules is all, and the opportunitiesfor discretionare few. In the ethics of intimacy,discretionis all, andthe relevanceof strictrulesis minimal.19For Tolstoy, of course, only the ethics of intimacy was properlycalled "ethics"at all-that is why I described his view as exaggerated. But in this respect the ethics of JohnRawls is equally exaggerated,though in the opposite direction. In our relations with casual acquaintances and unidentifiedfellow citizens, absoluteimpartiality may be a primemoraldemand;but among intimatesa certain discreet partialityis, surely, only equitable, and certainly not unethical. So a system of ethics that rests its principleson "the veil of ignorance"may well be "fair," but it will also be-essentially-an ethics for relationsbetween strangers.20
The Stresses of Lawsuits Seeing how Tolstoy felt abouthis own time, what would he have thoughtaboutthe life we lead today?The effects of the railways, in blurringthe boundarybetween the moral world of the immediatecommunityand the neutralworld beyond, have been only multipliedby the privatecar, which breaksthat boundarydown almost completely. Living in a high-riseapartmentbuilding, takingthe car from its undergroundgarageto the supermarketandback, the moder city dweller may sometimes wonderwhetherhe has any neighbors at all. For many of us, the sphere of intimacy has shrunkto the nuclear family, and this has placed an immense strainon family relations.Living in a world of comparativestrangers,we find ourselvesshorton civic trustand increasinglyestrangedfrom our professionaladvisors. We are less inclinedto give judges and bureaucratsroom to use theirdiscretion,and moredeterminedto obtainequal (if not always equitable)treatment.In a world of complete stranThe Hastings Center
gers, indeed, equality would be about the only virtueleft. Do not misunderstandmy position. I am not taking a nostalgia trip back to the Good Old Days. The world of neighborlinessand forced intimacy, of both geographical and social immobility, had its vices as well as its virtues. Jane Austen's caricatureof Lady Catherinede Burgh in Pride and Prejudice remindsus that purchasingequity by submittingto gross condescensioncan make its price too dear: Godblessthe Squireandhis relations, andkeepus in ourproperstations. Any biographyof Tolstoy remindsus thathis world, too, hada darkerside. Those who are seducedby his admiration for the moral wisdom of the newly emancipatedpeasantry will find an antidote in FrederickDouglass's memoirs of slave life on the Marylandshore. Nor am I deploringapartment buildings and privatecars. People usually have reasons for living as they do, and attackingmodernityin the nameof the moralityof an earliertime is an act of desperation, like buildingthe BerlinWall. No, my questionis only: If we accept the moder world as it is-apartment buildings, privatecars, and all-how can we strike the central balance between the ethics of intimatesand the ethics of strangers,between uniformityof treatmentand administrative discretion,and between equity and law, in ways that answerour contemporaryneeds? To begin with the law: currentpublicstereotypesfocus on the shortcomingsof the adversaryprocess, but what first needs to be explainedis just wherethe adversarysystemhas gone astray, and in what fields of law we should be most concerned to replace it. That should not be hard to do. Given thatwe handleour moralrelationswith intimatesand associates differentlyfrom our moral relationswith strangers, is not some similardifferentiationappropriatebetween ourlegal relationswith strangers,on the one hand, andwith intimates, associates, and close family members on the other? Even in the United States, the homelandof the adversary system, at least two types of disputes-labor-management conflicts and the renegotiationof commercialcontractsaredealtwith by using arbitrationor conciliationratherthan That is no accident. In a criminalprosecuconfrontation.21 tion or a routinecivil damagesuit arisingout of a car collision, the partiesare normallycompletestrangersbeforethe proceedingsandhave no stakein one another'sfuture,so no harmis done if they walk out of the courtvowing never to set eyes on each other again. By contrast,the partiesto a laborgrievancewill normallywish to continueworkingtogetherafterthe adjudication,while the disputantsin a commercial arbitrationmay well retain or resume business dealingswith one anotherdespitethe presentdisagreement. In cases of these kinds, the psychological stresses of the adversarysystem can be quite destructive:by the time an enthusiasticlitigatingattorneyhas done his bit, furtherlabor 35
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relations or commercial dealings may be psychologically impossible. So in appraisingdifferent kinds of court proceedings, we need to considerhow particulartypes of judicial episodes fit into the larger life histories of the individualswho are parties to them, and what impact the form of proceedingscan have on those life histories. A lawsuit that pits the full power of the state against a criminal defendant is one thing: in that context, Monroe Freedmanmay be rightto underlinethe meritsof the adversary mode, and the positive obligationsof zealous defense advocacy.22A civil suit that pits colleagues, next-door neighbors,or family membersagainsteach otheris another thing: in that context resort to adversaryproceedingsmay only make a bad situationworse. So, reasonablyenough, the main locus of dissatisfactionwith the adversarysystem is those areasof humanlife in which the psychologicaloutcomes are most damaging:family law, for example. By the time that the father, mother, and children involved in a custody dispute have all been zealously representedin court, the bad feelings fromwhich the suit originallysprang may well have become irremediable.It is just such areasas family law thatothernations(such as West Germany)have chosen to handle by arbitrationratherthan litigation, in chambers ratherthan in open court, so providing much more room for discretion. I am suggesting, then, that a system of law consisting wholly of rules would treatall the partiescoming before it in the ways appropriateto strangers.By contrast,in legal issues that arise between parties who wish to continue as close associates on an intimate or familiar level, the demands of equality and rule conformity lose their central place. There, above all, the differencesbetweenthe desires, personalities,hopes, capacities,andambitionsof the parties mostneed to be takeninto account;and only an adjudicator with authorityto interpretexisting rules, precedents, and maximsin the light of, and in responseto, those differences will be in a positionto respectthe equities of all the parties involved. Reviving the Friendly Society In public administration,especially in the field of social services, the crucial historicalchanges were more recent, yet they appearmuch harderto reverse. Two centuriesago most of what we now call the social services-then known, collectively, as "charity"-were still dispensedthroughthe churches.Local ministersof religionwere generallytrusted to performthis duty equitablyand conscientiously;and in decidingto give more to (say) Mrs. SmiththanMrs. Jones, they were not strictlyanswerableto any supervisor,still less bound by a book of rules. (As with the Squirearchy,of course, this arrangementhad its own abuses:the Rev. Mr. Collins could be as overbearingin his own way as Lady Catherinede Burgh.) Even a hundredyears ago many such charitablefunctionswere still carriedon by privateorgani36
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zations, like those in Britainwhich were charminglyknown as "friendlysocieties." But by this time things were beginning to change. A friendly clergymanis one thing, but a friendlysociety is more of an anomaly:in due courseirregularitiesin the administrationof those organizations-like those in some tradeunion pension funds today-provoked governmentsupervision, and a Registrarof Friendly Societies was appointedto keep an eye on them. From that point on, the delivery of social services has become ever more routinized, centralized, and subject to bureaucraticroutine. It should not take horrorstories, like thatof the handicappedyoung woman'sansweringservice, to makeus thinkagainaboutthe whole projectof delivering humanservicesthrougha bureaucracy:one only has to read Max Weber.The imperativesof bureaucraticadministration require determinate procedures and full accountability; while a helping hand, whether known by the name of "charity"or "social services," can be trulyequitableonly if it is exercised with discretion, on the basis of substantive andinformedjudgmentsaboutneed ratherthanformalrules of entitlement. What might be done, then, to counterthe rigors of busoreaucracyin this field? Or shouldlate-twentieth-century cieties look for other ways of lending a collective hand to those in need? In an exemplaryapologia for bureaucracy, HerbertKaufmanof the Brookings Institutionhas put his fingeron manyof the key points.23If we findpublic administration today complex, unresponsive, and procedurebound, he arguesthat this is almost entirelyour own fault. These defects are directconsequencesof the demandsthat we ourselveshave placed on our public servantsin a situation increasinglymarkedby diversity, democracy,and distrust. Since we are unwilling to grant discretion to civil servantsfor fear that it will be abused, we leave ourselves with no measure for judging administrators'performance otherthanequality. As Kaufmanremarks,"If people in one regiondiscoverthatthey are treateddifferentlyfrompeople in otherregionsunderthe same program,they are apt to be resentfuland uncooperative."24 Hence there arises a "generalconcernfor uniformapplicationof policy," which can be guaranteedonly by making the rulebookeven more inflexible. Yet is our demandfor equality and uniformityreally so unqualifiedthat we are determinedto purchaseit at any price? If we were certain thatour own insistenceon absolutefairnessmadethe social services dehumanizingand dehumanized, might we not consideropting for other, more equitable procedureseven though their outcomes might be less equal? Alternatively,perhapswe should reconsiderthe wholesale nationalizationof charitythatbegan in the early twentiethcentury.Plentyof uncorruptprivatepensionfundsstill operatealongsidegovernmentalretirementandold-agepension schemes, anda few communallybased systemsof welfare and charity remain trusted just because their accountabilityis to a particularcommunity.Among the IsThe Hastings Center Report, December 1981
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mailis, for instance, the world-wide branch of Islam of which the Aga Khanis the head, tithingis still the rule, and no promising high school graduatemisses the chance of going to college merelybecausehe comes from a poorfamily. Despite governmentalprograms,that is no longer true of the United States. So perhapswe have let ourselvesbecome too skeptical too soon about the friendliness of "friendlysocieties," and we shouldtake more seriouslythe possibility of reviving social instrumentswith local roots, which do not need to insist on rigidly rule-governedprocedures. That is of course a large "perhaps." The social changesthatled to the nationalizationof charityare powerful and longstanding,and thus far they have shown little sign of weakening. Given a choice, people may prefer to continueputtingup with bureaucraticforms and procedures that they can grumbleat with impunityif in this way they can avoid puttingthemselvesat the mercyof social or communal relationshipsthat they may find onerous. Frail Hopes and Slender Foundations In the field of ethics, all these difficultiesare magnified. There I have one firm intellectual conviction, and one somewhatfrailerhope on the social level. In a 1932 poem RobertFrost wrote: Don'tjoin too manygangs.Joinfew if any. Jointhe UnitedStates,andjoin the family. Butnot muchin between,unlessa college.25 Frost, in his curmudgeonlyway, capturesthat hostility towardcommunalties and restraintswhich, since Tolstoy's day, has continuedto undermineour "intermediateinstitutions" or "mediatingstructures."Towardthe nuclearfamily and the nation, people do indeed still feel some natural loyalty; "butnot much in between, unless a college." During the last thirtyyears, even the nation-statehas lost much of its mystique,leaving the familyexposed to stressesthatit can hardlysupport.It is my frail social hope that we may find some new ways of shapingother intermediateinstitutions toward which we can develop a fuller loyalty and commitment:associations larger than the nuclear family, but not so large that they defeat in advancethe initial presumptionthatour fellow membersare trustworthy.For it is only in that context, I suspect, that the ethics of discretion and intimacycan regainthe groundit has lost to the ethics of rules and strangers. Wheremight we look for the beginningsof such associations?Traditionallytheir loci were determinedby religious andethnic ties, and these are still sometimesused constructively to extend the range of people's moral sympathies beyond the immediatehousehold. But we scarcely need to look as far as Ulsteror Lebanonto see the otherside of that particularcoin. Membershipin schools and colleges has some of the same power, as Frost grudgingly admits, thoughit is a power thattends to operateexclusively rather thangenerously.The greatethicalhope of the Marxistswas The Hastings Center
that "working-classsolidarity"would, in effect, create a vast and cohesive extended family within which the dispossessed would find release from psychologicalas well as from politicaland economic oppression.But by now, alas, the evidence of history seems to show that awareness of shared injuries sets different groups against one another quiteas often as it unitesthem. For some of us, the bondsof professionalassociationare as powerfulas any. The physicians of Tarrytownor the attorneysof Hyde Parkprobably have a close understandingof, feeling for, and even trustin one another;and despite all other reservationsabout my fellow academics, I do still have a certainimplicit trustin theirprofessionalresponsibilityand integrity.So each year, withoutany serious anxiety, I vote for colleagues whom I have nevereven met to serve on the boardsthatmanagemy pension funds. If it were proved that those elected representativeshad been milkingthe premiumsand saltingthem away in a Swiss bank, that revelationwould shake up my moral universe more radicallythan any dishonestyamong public figureson the nationallevel. True, these are frailhopes andprovideonly slenderfoundationsto build on. Yet, in the realm of ethics, frail hopes and slender foundationsmay be what we should learn to live with as muchbetterthannothing.And thatbringsme to the intellectualpoint about which I am much more confident. If the cult of absoluteprinciplesis so attractivetoday, thatis a sign thatwe still findit impossibleto breakwith the "questfor certainty"that John Dewey tried so hardto discredit.26Not that we needed Dewey to point out the shortcomings of absolutism.Aristotle himself had insisted that there are no "essences" in the realm of ethics, and so no basis for any rigorous"theory"of ethics. Practicalreasoning in ethics, as elsewhere, is a matter of judgment, of weighing different considerations against one another, nevera matterof formaltheoreticaldeductionfrom strictor self-evidentaxioms. It is a task less for the clever arguer than for the anthropos megalopsychos, the "large-spirited human being."27 It was not for nothing,then, thatthe membersof the National Commission for the Protectionof Human Subjects were able to agreeaboutthe ethicalissues forjust so long as they discussedthose issues taxonomically.In doing so they wererevivingthe older, Aristotelianproceduresof the casuists and rabbinicalscholars, who understoodall along that in ethics, as in law, the best we can achieve in practiceis for good-hearted,clear-headedpeople to triangulatetheir way across the complex terrainof morallife and problems. So, starting from the paradigmaticcases that we do understand-what in the simplestsituationsharmis, and fairness, and cruelty, and generosity-we must simply work our way, one step at a time, to the more complex and perplexing cases in which extremelydelicatebalancesmay have to be struck.For example, we mustdecide on just whatconditions, if any, it wouldbe acceptableto injecta samplegroup of five-year-oldchildrenwith an experimentalvaccine from 37
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which countless other childrenshould benefit even though the risks fall on those few individualsalone. Ethicalargumentationthus makesmost effective progressif we thinkof the "commonmorality"in the same way as we thinkabout the common law:28if, for instance, we develop our perception of moral issues by the same kind of progressivetriangulationthat has extendedcommon law doctrinesof tort into the areas, first of negligence and later of strict liability.29
Meanwhile, we must remainon guardagainstthe moral enthusiasts.In theirdeterminationto nail theirprinciplesto the mast, they succeed only in blinding themselves to the equities embodied in real-life situations and problems. Their willingness to legislate morality threatensto transform the most painful and intimatemoral quandariesinto adversarialconfrontationsbetween strangers.To take one example, by reintroducinguncompromisinglegal restraints to enjoin all proceduresof abortionwhatever,they are pitting a woman against her own newly implantedzygote in some ghastly parody of a landlord-tenantdispute. This harshinflexibilitysets the presentday moralenthusiastsin sharpcontrastto Aristotle'santhropoimegalopsychoi, and recalls Tolstoy's portraitof Alexei Karenin'sassociate, the Countess Ivanovna, who in theory was a supporterof all fashionablegood causes but in practice was ready to act harshlyand unforgivingly. When Pascal attackedthe Jesuit casuists for being too ready to make allowances in favor of penitentswho were rich or highborn,he no doubt had a point.30But when he used this point as a reasonfor completelyrejectingthe case method in ethics, he set the bad example that is so often followed today:assumingthatwe must withdrawdiscretion entirely when it is abused and impose rigid rules in its place, insteadof inquiringhow we could adjustmattersso thatnecessarydiscretionwould continueto be exercised in an equitableand discriminatingmanner.I vote withouthesitationagainstPascal and for the Jesuits and the Talmudic scholars.We do not need to go as far as Tolstoy and claim that an ethics modeled on law ratherthan on equity is no ethics at all. But we do need to recognize that a morality based entirelyon general rules and principlesis tyrannical and disproportioned,and that only those who make equitable allowances for subtle individualdifferences have a properfeeling for the deeperdemandsof ethics. In practice the casuists may occasionally have been lax; but they graspedthe essential, Aristotelianpoint about appliedethics: it cannotget along on a diet of generalprinciplesalone. It requiresa detailedtaxonomyof particular,detailedtypes of cases and situations. So, even in practice, the faults of the casuists-such as they were-were faults on the right side. REFERENCES 'PresidentJimmy Carterused this quotation in a speech and attributed it to H. L. Mencken. However, the Humanities Section of the
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Enoch PrattLibraryin Baltimorehas been unableto locate it in Mencken's works. 2The work of the U.S. National Commission for the Protectionof Human Subjects of Biomedical and Behavioral Research will be discussed more fully in a paperto be publishedin a forthcomingHastings Centervolume on the "closure"of technical and scientific discussions. 3So, at any rate, currentlegend reports. On the other hand, having workedthroughthe files of the Journal for 1974-75 withoutfindingany articleor editorialon the subject, I am inclined to suspect that this may have been a casual remarkby the late Dr. FranzIngelfinger,the distinguished editor of the periodical. 4Daniel Callahan,Abortion:Law, Choice and Morality (New York: Macmillan, 1970);JohnT. Noonan, Jr., ed., The Moralityof Abortion: Legal and HistoricalPerspectives (Cambridge,Mass.: HarvardUniversity Press, 1970). 5ThomasAquinas, CommentariumLibro Tertio Sententiarum,D.3, Q.5, A.2, Solutio. 6PeterStein, Regulae Juris (Edinburgh:EdinburghUniversity Press, 1966), pp. 4-10. 7Lloyd A. Fallers, Law without Precedent (Chicago: University of Chicago Press, 1969): see also the classical discussion by Sir Henry Maine in Lectures on the Early History of Institutions(1914). 8Stein, pp. 26ff, 80-82, 124-27. 9Forthe subsequentinfluenceof this division on the Anglo-American legal tradition, see (e.g.) John H. Baker, An Introductionto English Legal History (Toronto and London: Butterworths,1979)., '?Politicallyspeaking, of course, the decline of monarchicalsovereignty made the formal division of law from equity less functional;so it is no surprisethat the nineteenthcentury saw its abolition both in the constitutionalmonarchyof Englandand also in the republicanUnited States. 1John Rawls, A Theoryof Justice (Cambridge,Mass.: HarvardUniversity Press, 1971)is only the most recent systematicexposition of this position, which has become something of a philosophical commonplace,at any rate since Kantraisedthe issue of "universalizability" in the late eighteenthcentury. '2See, e.g., Kenneth C. Davis, Discretionary Justice (Urbana, Ill., Univ. of Illinois Press, 1969); Ralph A. Newman, Equity and Law (Dobbs Ferry, NY: Oceana, 1961);and particularlyRalph A. Newman, ed., Equity in the World'sLegal Systems (Brussels: Bruylant, 1973). '3This seems to be true even of so perceptive an author as Herbert Kaufman, in his ingenious tract, Red Tape: its Origins, Uses and Abuses (Washington, D.C.: Brookings Institution, 1977), pp. 76-77: "Quite apartfrom protective attitudestoward specific programs, general concern for uniform applicationof policy militates against wholesale devolution. Not that uniformity automatically assures equity or equality of treatment...." 14Thelocus classicus for the discussion of the notion of epieikeia (or "equity") is Aristotle's Nicomachean Ethics, esp. 1136b30-1137b32. See also Max Hamburger'suseful discussion in Morals and Law: the Growth of Aristotle's Legal Theory (New Haven: Yale University Press, 1951). 'Henry L. McClintock,Handbookof the Principles of Equity, 2nd ed. (St. Paul, Minn.: West, 1948) pp. 52-54; John N. Pomeroy, A Treatise on Equity Jurisprudence (San Francisco: Bancroft Whitney, 1918-19),secs 360-63. '6HenceAristotle'semphasis on the need for a person of sound ethical judgment to be an anthroposmegalopsychos. '7This image of the steam locomotive had a powerful hold on Tolstoy's imagination:it recurs, for example, in Warand Peace, where he comparesthe ineluctable processes of history to the movements of the pistons and cranksof a railway engine, as a way of discreditingthe assumptionthat "world historical figures" like Napoleon can exercise any effective freedom of action in the political realm. '8This is the central theme of the closing book of Anna, in which Tolstoy documentshis own disillusion with social and political ethics throughthe characterof ConstantinLevin. 19Noticehow Aristotle treats the notion of philia as complementary to thatof "equity." As he sees, the natureof the moral claims thatarise within any situationdepend on how closely the parties are related:indeed, it might be betterto translatephilia by some such term as "relationship" instead of the customarytranslation,"friendship,"since his argumentis intendedto be analytical ratherthan edifying. The Hastings Center Report, December 1981
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2?Rawls,Theory of Justice. 21InUnited States labor law practice, arbitratorsare guided by the published decisions of previous arbitrations,but not bound by them, since their own decisions normally turn on an estimate of the exact personal and group relations between the workers and managers involved in the particular dispute. Indeed, in Switzerland-here, as elsewhere, an extreme case-the results of labor arbitrationsare not even published, on the groundthatthey are a "purelyprivatematter"as between the immediate parties. 22MonroeFreedman,Lawyers' Ethics in an AdversarySystem (Indianapolis: Bobbs Merrill, 1975). In this connection, currentChinese attempts to turn criminal proceedings into a species of chummy conciliationbetween the defendantand his fellow citizens can too easily serve to conceal tyrannybehind a mask of paternalisticgoodwill. 23Kaufman,Red Tape. 24Ibid., p. 77. 25RobertFrost, "Build Soil-a Political Pastoral," in CompletePoems of RobertFrost (New York: Holt, Rinehart& Winston, 1949), pp. 421-32, at p. 430. 26JohnDewey, The Questfor Certainty (New York: Putnam, 1929). 27Aristotle's"large spirited person"-commonly but wrongly trans-
lated as "great souled man," ignoring the care with which the Greeks differentiatedbetweenanthropoi (humanbeings) and andres (men)-is the final hero of the Nicomachean Ethics: the key feature of such a person was, for him, the ability to act on behalf of a friend from an understandingof that friend's own needs, wishes, and interests. 28Weare indebtedto Alan Donagan for reintroducingthe idea of the "common morality"into philosophical ethics, in his book, The Theory of Morality (Chicago: University of Chicago Press, 1977). 29EdwardH. Levi, Introductionto Legal Reasoning (Chicago: University of Chicago Press, 1948). 30Pascal'sLettresProvinciales were originally publishedin 1656-57, duringthe trial of his friend Antoine Arnauld, whose Jansenistassociations made him a target for the Jesuits. Pascal's journalistic success with these letters did a great deal, by itself, to bring the traditionof "case reasoning" in ethics into discredit: so much so that the art of casuistics has subsequentlybeen known by the name of "casuistry"-a word which the OxfordEnglish Dictionary first records as having been used by Alexander Pope in 1725, and whose very form, as the dictionary makes clear, is dyslogistic. (It belongs to the same family of English words as "popery," "wizardry"and "sophistry,"all of which refer to the disreputable employment of the arts in question.)
EditorialPolicy and Manuscript Review The Report's manuscript policy, stated on page one of every issue, is simple enough: manuscripts must be "typed, double-spaced, and accompanied by a self-addressed stamped envelope." Actually there is more to the process than that. All manuscripts, unsolicited and solicited, are acknowledged when they are received. They are then circulated through our review system, which has both internal and external reviewers. At all stages of review, manuscripts are read with the author's name deleted. The review process takes approximately eight weeks. Having informed potential authors of our review process, we would also like to thank our colleagues at The Hastings Center (Ronald Bayer, Daniel Callahan, Arthur Caplan, Willard Gaylin, Bruce Jennings, and Thomas Murray) as well as our outside reviewers for the time and careful attention they gave to the manuscripts we sent them. During 1980 these readers included:
The Hastings Center
Myke Bayles Westminster Institute for Ethics and Human Values James Boylan University of Massachusetts-Amherst Gary Burke University of Colorado Thomas Chalmers Mt. Sinai Medical Center Jessica Davis North Shore University Hospital Gerald Dworkin University of Illinois at Chicago Circle Harold Edgar Columbia University School of Law Lee Ehrman State University of New York, Purchase John C. Fletcher National Institutes of Health Loren R. Graham Massachusetts Instituteof Technology T. John Gribble University of New Mexico School of Medicine Clifford Grobstein University of California, San Diego Jeanne Guillemin Boston College Albert R. Jonsen University of California, San Francisco School of Medicine
Michael M. Kaback Harbor-UCLAMedical Center Robert J. Levine Yale University School of Medicine Alan Mazur Syracuse University Vanessa Merton New York University Law School Kai Neilsen University of Calgary Martin Pernick University of Michigan Mark Ptashne Harvard University Leon Robertson Yale University-Institution for Social and Policy Studies Kenneth J. Ryan Boston Hospital for Women Robert Schwartz University of New Mexico Law School Margaret O'Brien Steinfels Christianity & Crisis Stephen Toulmin University of Chicago Donald Warwick Harvard Institute for International Development Michael Weiss Harvard Medical School Howard Ziff University of Massachusetts-Amherst
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