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Confluence of Philosophy and Law in Applied Ethics, written by Norbert Paulo

In: Grazer Philosophische Studien
Author: Tom Tomlinson1
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London: Palgrave McMillan, 2016, 237 pp.; hardback isbn: 1137557338; paperback isbn: 1349718289.

This book is built around an intriguing premise.

Judges applying the law (whether statutory or case law), as well as bioethicists applying principles or paradigm cases face what looks like a similar problem: How to use general principles, paradigms or practices to make judgments about very particular cases or sets of circumstances.

The law has grappled with this problem for centuries, and in the process has evolved a variety of theories and methods for solving it. This suggests that those of us who work in applied ethics might stand to learn something from judges. Norbert Paulo sets out to show that indeed we can.

This goal shapes the structure of the book. After setting up the premise in Part i, he starts with a long and detailed account of Methods in Legal Theory in Part ii, which provides a framework for comparison with Methods in Contemporary Ethical Theories in Part iii.

Paulo insists that in the law justification for the application of a law or of a precedent has to be deductive in nature (p. 28). The law forbids home invasion. John invaded his neighbor’s home. Therefore, John committed an unlawful home invasion. This deductive format provides for the transparency required for the fair application of the law, Paulo claims. But this role for deduction almost immediately requires a number of interesting qualifications, many of which are adopted from prominent legal theorists.

First is the distinction Paulo makes between a rule and a principle. A rule is all or nothing, usually either a prohibition or a permission. When the light turns red, motorists must stop; when it turns green, they may proceed. But while principles also provide a reason for action, they often don’t dictate it. They are merely considerations to be taken into account: When granting a mining permit, the agency should take into account the environmental impact. However, there may be a number of other principles to be applied when granting a permit. When they point in different directions, some judgment needs to be made about where the balance or weight of evidence points. That judgment is not itself the conclusion of a deductive argument, since where the weight of the evidence points will depend on the circumstances (e.g., to what degree the principles are in conflict).

This point is related to another qualification. The cogency of any deductive argument (whether from rule or principle) will depend on the truth of the minor premises, which will include not only assumptions about the facts (not warranted by deduction, of course), but also on interpretations of key terms in the rule. Killing in self-defense is lawful. John killed Bill in self-defense. John’s behavior is lawful. But is what John did a “killing”? (John pushed Bill into the street, where he was struck by a car.) What counts as “self-defense”? (Could John have easily escaped the threatened force?)

The deductive argument is the “formal” justification. The reasons given for interpretations of the rule (the minor premise) are the “material” justification. (p. 47 ff.) Such interpretations are critical forces driving the development of law and its applications to new circumstances. But these interpretations must be anchored in the law nonetheless. They are always interpretations of some original, whether it’s the language of the statute itself, the intentions of the lawmakers, or the reasons behind earlier court decisions. (p. 54) This is a critical point I will return to.

Now what about precedents? How does a judge use prior case decisions to justify a legal judgment in the case now before the court? Here too Paulo proposes that arguments from precedent can be cast into a formal deductive structure, abetted by various forms of material justification.

  1. (1)A precedent case determined that in the presence of the properties f and g, conduct C is lawful.
  2. (2)The case at hand has properties f, g, and h

The case at hand has an additional property, h, not found in the precedent. Applying the precedent to warrant the same conduct C may then require the minor premise

  1. (3)In a case with properties f, g, and h, conduct C is also lawful (an “Analogy Warranting Rule” per Scott Brewer, p. 72)

Therefore,

  1. (4)In the case at hand, conduct C is also lawful.

The minor premise #3 is not deductively justified. It requires a material justification that warrants the claim that the addition of property h does not affect the conclusion about the conduct – it needs what Paulo and Brewer call an Analogy Warranting Rationale.

In the chapter on Norm Development Paulo discusses a variety of ways to create minor premises that bridge the gap between precedent cases (or statutes) and a particular circumstance. These include such things as expanding the original norm, reconciling conflicting norms through balancing or proportionality to identify the least intrusive violation of a norm, filling a gap, distinguishing, and overruling. In none of these strategies can the resolution be deductively justified, which would require some covering principle or rationale that is nowhere to be found.

A reader who recalls the Table of Contents will at this stage easily predict how these legal theories will be related to the chapters in Part iii. The distinction between formal and material justification in the application of laws will be reprised in the examination of Principlism in Chapter 6; and the characterization of awr’s will be used in the critique of Casuistry in Chapter 7.

A major theme in Part iii is that just as in the law, so too in bioethics: a purely formal (i.e. deductive) justification will be possible only in the most transparently obvious cases – if we can agree on which ones those are!

In Chapter 6, Paulo agrees with Beauchamp and Childress that their principles need to be “specified” (in their sense of the term), since without some interpretation of a principle it will be impossible to infer a conclusion about a specific circumstance. This parallels the distinction between the formal and material justifications in the law, where the latter also require interpretations. Any system with multiple, often competing norms, whether legal or ethical, will require more than deductive reasoning.

In Beauchamp and Childress’ case norms are drawn from the resources found in the “common morality”, which includes not just their 4 prima facie principles, but considered judgments about particular circumstances, virtues of character, the special obligations incurred in relationships (including the physician-patient relationship), and so on. The weight and direction of these will vary with circumstances, and so the reliance upon judgment is inescapable. In his discussion of critics of Beauchamp and Childress, such as Culver and Gert, Paulo argues that their alternative methodologies provide no firmer grounding for the particular judgments required in practical ethics.

These judgments are warranted in a dialectical process (borrowed from Joel Feinberg’s variant of reflective equilibrium) in which one traces connections and makes adjustments among principles or other norms, considered judgments, assumptions about the facts, and so on, in search of an equilibrium that causes the least disturbing perturbation of the moral system – just as one would attempt in the law. But which perturbation is the least disturbing remains a matter of judgment, not of deduction from some ultimate principle.

As expected, Chapter 7’s discussion of Jonson and Toulmin’s casuistry finds parallels with precedent-based reasoning in the law. The casuist can use many of the same tools found in the law to interpret casuistry’s paradigm cases, using Analogy Warranting Rules and Rationales. But just as with principlism, this method has no firm deductive footing. It is easy to come up with a rule linking a specific paradigm case to a case at hand. But why should that particular paradigm apply, when there are other candidates? How does one adjudicate tensions among competing paradigms? What justifies the rationale for the warranting rule? These are all questions that can’t be answered by recourse to analogy, and which ultimately also call for the use of judgment.

In Chapter 8, Paulo finds similar methodological limitations in consequentialist moral systems. It’s fine to believe that one should act in ways that maximize the good; or, if one is a rule utilitarian, in accordance with the system of rules that maximizes the good. But how do we know what maximizes the good, all things considered? Paulo’s complaint is that consequentialism has no method for answering its own defining question. In the case of the two theorists he discusses – Peter Singer and Brad Hooker – he points to many instances in which they rely on intuitive, taken for granted moral judgments about mid-level moral principles, or rely on case judgments for which no consequentialist justification is offered. This is especially egregious in the case of Singer, who explicitly disavows any reliance on intuition, but relies on it throughout. Consequentialism ends up in the same boat with Principlism and Casuistry.

This book is a comprehensive and highly detailed discussion of the warrants for key legal and bioethical methods. The details are often tightly packed together, making for difficult reading, especially in Part ii (p. 56):

The second rule refers to the context of a norm within the legal system. It touches on two points. One point is that it specifies how the relevant semantic content of a norm is to be determined, namely, if the first rule reveals more than one possible norm content, the context of the norm within the legal system shall be used to determine which content fits best within this system. This already implies the other point, namely, that one shall choose the possible content that is consistent with the other existing norms so that the system is free from contradictions. This second rule thus states not so much another aim of semantic interpretation. It, rather, specifies how the first rule’s aim is to be achieved.

It’s possible to extract the meaning of this paragraph, but only with a lot of painfully close reading. It’s an example of a style of writing found throughout the book that makes readers work too hard.

I have, however, three more substantive concerns:

  1. That Paulo does not deliver on the promise that a better understanding of methods in legal reasoning will provide better methodological insights and tools in bioethics.
  2. That the deductive framework he favors is more critically important to the law than to bioethics.
  3. That he does not recognize that the law has resources useful in warranting its judgments that are not available to bioethics.

The Promise to Bioethics

Regarding the first concern, it is striking when reading the bioethics chapters in Part iii how similar law and bioethics are with regard to the methodological challenges they face, and with regard to how these are dealt with. The practical application of laws and precedents, principles and paradigms all require much more than deduction from principles, and in any complex case quickly rely on more intuitive judgments to warrant the interpretations that are virtually always necessary.

Since the challenges they face are similar, it is not surprising that their responses are as well. But the greater the similarity, the less the likelihood of discovering some method in the law that would offer an innovation in bioethics. Nowhere in the book will the reader find any sustained explanation of what bioethics could borrow from the law that would improve the methods already in use.

There are widely scattered claims that the construction of a formal justification (as used in the law) provides “transparency” and “stability”, two virtues that might strengthen bioethical methods, but these two advantages are not explicitly discussed until the final chapter, The Morisprudence Model for Applied Ethics. There Paulo says little more than that “This simple deductive model is meant to reach transparency and flexibility…” adding that the “deductive model is, nonetheless, very flexible, because it almost always requires interpretations…” (p. 238)

Now, flexibility is a virtue already baked into bioethical methods, as Paulo illustrates throughout Part iii. What’s not clear is how the deductive model improves transparency, and Paulo doesn’t provide an explicit argument for this claim. Perhaps one might say that by requiring that the ethicist cast his or her reasoning into a deductive form, others can see more clearly how the conclusion is linked (by the minor premise) to the moral imperative contained in the principle or paradigm case. But this linkage is transparent only if one takes the minor premise for granted. In the case of any difficult ethical question, this would be an illusory transparency, that obscured rather than revealed reliance on the interpretive reasoning lying behind the minor premise.

Transparency More Critical for Law than for Bioethics

Now, in bioethics that interpretive reasoning is where the action is, and where disagreement is most likely found. Whatever weight the minor premise carries in subsequent cases will depend entirely on how convincing and relevant the background reasoning remains. One way to put this is to say that in ethics there are no laws or precedents that carry authority on their own, independent of the interpretive reasoning that lies behind them.

The law, however, is a source of authority which legitimates the use of state power – whether exercised by a legislature, or a judge interpreting law or precedent. Those subject to the law and its penalties should be able to know what the law says, and where to look to find it. For the subjects of law, what “the law says” should be as clear and unambiguous as possible.

This is the transparency provided by a deductive framework’s critical minor premise, which puts forth a clear statement of the law. It’s that premise that matters to the subjects, not the interpretive reasoning that supported it. So, the deductive framework championed by Paulo provides a transparency critical much more to the law than to bioethics.

The Law Provides an Object of Interpretation, and Needed Interpretive Resources

Recall that early in the book, Paulo points out that interpretation is always of something – an original. In the law, it is usually obvious what that original is: a given statute, or a precedent set by a court. These are accompanied by specific resources needed to make an interpretation regarding a case at hand: either the motivations and reasoning of the legislators, or the reasoning used by the court that set the precedent. Later interpretations must be consistent with those previous intentions, rather than contradicting the rationale(s) that underlay legislation or previous case decisions.

This very usefully provides the terms in which interpretations can be cast, and delimits the range of permissible interpretations. Although it may sometimes be necessary to reach beyond these sources, this should be done cautiously, since doing so may imperil the transparency and stability of the law.

But who (or what) are the authorities in ethics whose intentions can provide the basis for needed interpretations? The answer may be obvious enough when engaged in scholarship. If I’m critiquing the specification of a principle as advanced by Beauchamp and Childress, then I need to start with the reasons given by those authors. But when I myself need to determine how to interpret or specify a principle to apply it to a specific case, what’s the relevance of Beauchamp and Childress’ intentions to the warrant for my interpretation? In bioethics, unlike the law, there is no authoritative original on which an interpretation must be based.

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