by AS Iltis · Cited by 58 — Swets & Zeitlinger. Bioethics as Methodological Case Resolution: Specification, Specified Principlism and Casuistry. Ana Smith Iltis. Rice University. ABSTRACT.

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Journal of Medicine and Philosophy0360-5310/00/2503-0271$15.00 2000, Vol. 25, No. 3, pp. 271Ð284© Swets & Zeitlinger Bioethics as Methodological Case Resolution:Specification, Specified Principlism and CasuistryAna Smith IltisRice UniversityABSTRACTBioethical decision-making depends on presuppositions about the function and goal ofbioethics. The authors in this issue of The Journal of Medicine and Philosophy share theassumption that bioethics is about resolving cases, not about moral theory, and that thebest method of bioethical decision-making is that which produces useful answers. Be-cause we have no universally agreed upon background moral theory which can serve asthe basis for bioethical decision-making, they try to move bioethics away from theory. Forthem, a good method of bioethical decision-making is one which resolves cases in waysthat are justifiable to the parties involved, not necessarily in ways that bring us ÒcloseÓ tothe right and the true. The authors consider how the move away from theory and towardactual cases is best accomplished. In particular, the debate in this issue is about specifica-tion, specified principlism, and casuistry.Key words: bioethics, casuistry, principlism, specification, specified principlism, theoryI. BIOETHICS AS METHODOLOGICAL CASE RESOLUTIONContemporary bioethics emerged as fears about the progress of sciencegrew along with the realization that no single traditional moral theorycould be agreed upon to help resolve ethical questions. In his account ofhow bioethics developed, The Birth of Bioethics, Albert Jonsen writes thatÒthe old tradition of medical ethics was too frail to meet the ethical chal-lenges posed by the new science and medicineÓ (1998, p. 3). Historically,much of medical ethics was concerned with the social aspects of medical practice, namely describing the behavior of good physicians so that theymight behave appropriately toward their patients (etiquette and bedsidemanner) and so that they might gain or maintain societyÕs trust (social ethics) (Jonsen, 1998, pp. 6Ð7). Medical etiquette and the internal valuesCorrespondence: Ana Smith Iltis, Department of Philosophy, MS-14, Rice University,6100 Main Street, Houston, TX 77005, U.S.A. Email:

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ANA SMITH ILTIS272of medicine proved inadequate for resolving new questions concerningabortion, organ transplants, brain death and so on. Even adherence totraditional injunctions, such as Òdo no harm,Ó left many cases unresolved, especially those in which it was not clear what constituted harm. Medicalethical questions have also been addressed in the context of religioustraditions over the centuries. For example, the Roman Catholic Church had identified a difference between the use of ordinary and extraordinarymeans to preserve life during the 16th century (Engelhardt, 1996, p. 284;Cronin, 1958). Even though religious traditions can and do give guidance on particular moral questions, the substantive moral theories they offercannot help resolve cases in the public forum because their foundationsare not universally recognized and agreed upon. For example, unless one already recognizes the teaching authority of the Roman Catholic Church,its instruction on a particular medical moral matter is not likely to influ-ence oneÕs choices. Neither traditional religious moral teachings nor med- ical etiquette and social ethics proved equal to the task, given the unavail-ability of traditional moral sources. How are we to proceed when facedwith medical ethical issues in the context of actual cases requiring deci- sions? When hospitals, governments, and professional organizations wantto develop policies regarding particular bioethical issues, how are they toproceed? How can we differentiate between right and wrong as we face issues of life and death?The authors in this issue of The Journal of Medicine and Philosophyhave been struggling with these questions for years, and here the debate continues. They all share the underlying assumption that bioethics is notabout theory. Bioethics cannot be about theory because there is no univer-sally agreed upon and recognized theory of right and wrong. So, the au- thors here concern themselves, in part, with delineating the appropriateways in which the step away from theory, a step which bioethics seems torequire in the face of moral theoretical diversity, ought to be taken. The essays in this issue are not about the ÒhotÓ topics of bioethics, e.g., they donot evaluate cloning, abortion, euthanasia, and so on. They are about howwe should look at cases involving these and any other bioethical ques-tions. The authors here have been in conversation with each other over theyears. They do not pretend to offer final answers and resolutions. Rather,they here further the dialogue and offer the latest exposition of their agree- ments and disagreements.Since they assume that bioethics is not really about theory, but aboutchoices, decisions, and actions, what unifies the authors in this issue of The Journal of Medicine and Philosophy is their emphasis on the usefulrather than on the right and the true. A distinction between the useful

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METHODOLOGICAL CASE RESOLUTION273 and the true was made by Henrik Wulff in Rational Diagnosis and Treat-ment:physicians are primarily interested in whether classifications of diseas-es are useful, that is, whether they are efficient guides for physicians inreducing morbidity and mortality risk, not whether they accurately re- flect reality (1981, p. 30).Similarly, the authors in this issue all seek a method that will provide forjustifiable case resolution, i.e., a useful method, rather than a method thatwill yield right or true answers as these might be theoretically estab-lished.1 Bioethics, for them, is about resolving cases in ways which can be justified to those involved but not in ways that are necessarily right. Thegoal and role of bioethics, for these authors, is practical decision-making,and so part of the test for a good bioethical method is that it is useful or practical in terms of the parties raising the bioethical questions. A relianceon moral theory would often make it impossible to justify decisions to therelevant parties because there is no universally agreed upon background moral theory. So, for these authors, bioethics requires that we step awayfrom theory.Principlism was one of the first contemporary attempts to ground amethod of bioethical decision-making in something other than a moraltheory (see Beauchamp and Childress, 1979). The idea was that, despitedisagreement about moral and religious theories, we could all agree on certain principles. All we had to do was identify the Ôcommon moralityÕand extract from it a set of middle level principles. This early attempt atdeveloping a theory without a theory (i.e., a theory or method of resolving bioethical issues without relying on a foundational moral theory) couldnot deliver what it promised. Specified principlism developed as an at-tempt to respond to some of the criticisms of principlism, many of which revolved around problems associated with applying the principles to re- solve cases. For example, how are we to deal with cases in which theprinciples conflict, and how are we to order the principles? Without a universally agreed upon background theory to tell us how to balance con- flicting principles, we are unable to apply and use principles to solveethical problems and answer moral questions. Trying to theorize without a theory is difficult, if not impossible.In 1990, Henry Richardson examined what principlism needed in orderto bring norms to bear on cases, i.e., to be useful. Noting the problems withthe application of ethical theories, he began with a simple question: ÒStart-ing from an initial set of ethical norms [i.e., principles], how can we

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ANA SMITH ILTIS274resolve concrete ethical problems?Ó (1990, p. 279). His principle claim inthe 1990 paper is that we must specify our way to a solution, therebyÒbring[ing] norms to bear on cases even while leaving them non-abso- luteÉÓ He holds that Ò[o]nce our norms are adequately specified for agiven context, it will be sufficiently obvious what ought to be doneÉÓ(1990, p. 294). In 1992, David DeGrazia wrote in support of RichardsonÕs model of specifying principles and argued that specified principlism Òisthe most promising modelÓ for bioethical theory (1992, p. 512). His goalat that time was, he said, Òto É unite principlism and specification explic- itly and defend their unionÓ (p. 533). The idea of specification wouldeventually change the way the early expositors of principlism, Tom Beau-champ and James Childress, understood their theory. In the fourth edition of The Principles of Biomedical Ethics, they noted that they acceptedÒHenry RichardsonÕs argument that the specification of our principles isessential to determining what counts as an instance of that principle to overcome some moral conflictsÓ (1994, p. 29). Consequently, Òin manag-ing new, complex, or problematic cases, the first line of attack should be tospecify your norms thereby to specify unclarities and problems awayÓ (1994, p. 29). However, specification and specified principlism, like prin-ciplism as originally conceived, suffer from the problems associated withtheir nature Ð they are theories without theories. Without a universally agreed upon background theory to tell us how to specify principles andhow to choose between conflicting specifications of a principle, we cannotproceed.Just as the growing emphasis on dealing with actual cases, on the realityof moral pluralism, and on focusing on and attending to actual people andthe particulars of a given case brought forth new ideas, such as specified principlism, the problems associated with those new ideas led to the reviv-al of old ones, such as casuistry. Casuistry, i.e., the use of paradigm casesto determine how and when to apply moral rules to particular cases, can be traced back through the history of philosophy. It was used in religiousthought and moral teachings as well as the legal system. In identifying theorigins of casuistry, Albert Jonsen and Stephen Toulmin note that there is a long tradition of using case analysis in the Roman Catholic Church,which can be traced back to the early Christians and to Rabbinic Judaism(1988, p. 91). In these contexts of religion and law, casuistry was embed- ded in agreed upon theories about the world and who/what (e.g., priests,rabbis, councils, and the sanhedrin) had the authority to make decisionsand judgments about which cases were paradigm cases and what the gen- eral moral rules were (Engelhardt, 1996, pp. 43 and 86). This is not thecase for casuistry as used in contemporary bioethics. There is no univer-

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METHODOLOGICAL CASE RESOLUTION275sally agreed upon background theory and no universal agreement aboutwho is in authority.2 How are we to decide which cases are paradigm cases and which aspects of cases are morally relevant? The emphasis is on the usefulness of the method in producing an answer and yielding a choice ordecision. The emphasis is not on finding the (or a) right answer. Theauthors in this issue share this focus on methodology rather than theory, and on practicality (resolving cases in ways that can be justified by therelevant parties) rather than on truth (resolving cases in the right way).II. THE CURRENT DEBATEIn the first part of this issue, Richardson presents critiques of Gert, Culverand ClouserÕs 1997 book, Bioethics: A Return to Fundamentals. Gert,Culver and Clouser respond, claiming that the central problem with Rich- ardsonÕs essay is that he has misunderstood them. In the second, CarsonStrong critiques specified principlism and argues that it Òfails the test ofusefulness É [because] É it does not provide a practical method for arriving at justifiable resolutions of specific casesÉÓ (2000, p. 324). Beau-champ responds to StrongÕs criticism, arguing that casuistic reasoningdepends on specified principlism to compare, and therefore to resolve, cases. Jonsen also responds to StrongÕs paper, claiming that specifiedprinciplism and casuistry need each other Òto get close toÓ actual cases.A. Method 1: Specification, Not BalancingRichardson argues in ÔSpecifying, balancing, and interpreting bioethicalprinciplesÕ (2000, pp. 285Ð307) that his decade-old work on the notion of specifying norms progressively has not been fully assimilated into thebioethics literature and that the language of specified principles shouldreplace the language of balancing in bioethics.3 The importance of speci- fying principles or interpreting norms in some way has been recognized insome of the major bioethical theories, but Richardson argues that there isstill a heavy and inappropriate reliance on balancing. In his essay here, Richardson attempts to expose the ways in which Gert, Culver and Clous-er rely on ÔglobalÕ or ÔoverallÕ balancing between a theoryÕs principlesdespite their stated openness to specification or some kind of interpreta- tion of norms. Furthermore, he critiques Beauchamp and ChildressÕ reli-ance on balancing as a way to resolve conflicts between bioethical princi-ples. Finally, Richardson argues that the only appropriate role for balanc- ing is within the context of a particular principle (i.e., ÔpiecemealÕ andÔcontextualÕ balancing) and that specification ought to replace balancing.

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ANA SMITH ILTIS276Richardson explains that his main Òtarget is É the use of the idea ofbalancing ethical principlesÉÓ by Gert, Culver and Clouser, and by Beau-champ and Childress, not their theories as wholes (2000, p. 287).Richardson denies the appropriateness of the kind of balancing in whichhe claims Gert, Culver and Clouser engage (ÔglobalÕ or ÔoverallÕ balanc-ing) because it violates or fails the test of the weak principle of publicity. The weak principle of publicity is one of RichardsonÕs basic assumptions.He says, Ò[j]ustifications must be offered in terms of reasons that may bepublicly statedÓ (2000, p. 286 ). Richardson argues that Gert, Culver and Clouser use ÔglobalÕ balancing because for them morality is about mini-mizing harm, and violations of moral rules are justifiable when the harmthat results from the violation is greater than the harm that results from not violating it (Richardson, 2000, p. 294). This method, according to Rich-ardson, constitutes ÔglobalÕ balancing, and it does not meet the weak pub-licity requirement because harms are incommensurable and hence one cannot (publicly) give real reasons for the violations or for allowing theviolations. Richardson concludes that Òby depending on intuitive quantita-tive balancings whose basis cannot be publicly expressed because there is no actual quantitative dimension backing them up and by failing to en-courage the public articulation of the actual, qualitative basis of suchjudgments,Ó Gert, Culver and ClouserÕs method of bringing norms to bear on actual cases does not meet the weak requirement of publicity and there-fore it is not an appropriate method (Richardson, 2000, p. 297).At the root of RichardsonÕs dismissal of what he sees as Beauchamp andChildressÕ use of balancing to resolve conflicts among principles is hisclaim that specification is better than balancing for producing action-guid-ing principles. According to Richardson, the use of balancing to resolve conflicts among principles Ògo[es] against the requirements of the cooper-ative development of action-guiding theoryÓ (Richardson, 2000, p. 298),which Richardson assumes is one of the functions of bioethics.4 His rejec- tion of the balancing he identifies with Gert, Culver and Clouser, and withBeauchamp and Childress, is based on what Richardson takes to be therole, function or purpose of bioethics. Bioethics is, for him, about guiding actions, not about theory. It is about bringing norms to bear on cases in theÒrealÓ world, and thus requires cooperation between theoreticians andpractitioners, not just theory: the superiority of specification Òlies in the greater contribution of specifying and interpreting norms to the overallenterprise of progressively developing action-guiding principles. Contrib-uting to this enterprise, I assumed at the outset, is part of the purpose of work in bioethicsÓ (2000, p. 304). His criticism of Gert, Culver andClouser and of Beauchamp and Childress seems to be that they lack the

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ANA SMITH ILTIS278the morally relevant features of the violation; the second step is to estimatethe harms that would result from publicly allowing versus not allowing theviolation. This idea of estimating harms, they think, is the source of Rich- ardsonÕs accusation of balancing and hence of his claim that their methodviolates the weak principle of publicity. Even though Richardson maythink that the second step involving the estimation of harm involves Ôglo- balÕ balancing, for Gert, Culver, and Clouser, estimation is about connect-ing ethical decision-making to the public world in which actual cases ariseand must be resolved. For them, the estimation of harms is about meeting a strong publicity requirement. Their method requires that we estimateÒthe results of the violation being publicly allowed É to determine wheth-er one would publicly allow the violationÓ (2000, p. 312). They find it Òdifficult to see how this use of Ôglobal balancingÕ could possibly be inconflict with publicity, when it is based on oneÕs estimates of the results ofthe violation being publicly allowed and is used in order to determine whether one would publicly allow the violationÓ (2000, p. 312).At the heart of Gert, Culver and ClouserÕs method is a concern abouthow to justify the violation of moral rules, not how to interpret moral rules, as Richardson seems to think. Furthermore, they, unlike Richardsonand most philosophers,intend to describe the common moral system that thoughtful people use,generally unconsciously, when making moral decisions and judgments.We try to make that system explicit and then to see if it can be justified, that is, whether, with suitable qualifications, all rational persons wouldput forward this system as a public guide for everyoneÕs behavior. Thismeans that, contrary to the practice of most philosophers, we attempt to provide a full description of common morality. We do not attempt togenerate answers from our moral theory, but rather to describe the an-swers that are given by common morality, and to determine whether these answers can be justified (2000, pp. 315Ð316).Their goal is to Òprovide ways of describing a particular case via themorally relevant features, so that it becomes clear how the moral systemapplies to that caseÓ (2000, p. 316). This is what will be useful, they claim,and Richardson cannot show how specification is similarly useful (2000, p. 316). Again, it is clear that Gert, Culver and ClouserÕs emphasis is onthe practicality and usefulness of their method for resolving actual moralcontroversies. They are not interested in determining if the resolution measures up to some Òhigher standardÓ of the right and the true. They areinterested in how best to resolve cases, where ÒbestÓ is measured by how

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METHODOLOGICAL CASE RESOLUTION279good a method is for helping us arrive at a decision that coheres with whatthey call the Ôcommon moralityÕ. ÒBestÓ is not measured by how good amethod is at helping us come to the right resolution.Gert, Culver, and Clouser, and Beauchamp and Childress, try to devel-op useful methods of bioethical decision-making; they want methods thatwill facilitate the resolution of actual cases. Richardson argues that they all fail to fulfill their aim and that in order to succeed they would need toincorporate (further) specification into their methods. He is not critical oftheir goal, i.e., of developing methods that will resolve cases and produce answers instead of ones that will lead to the truth. Rather, Richardson iscritical of their product.B. Method 2: CasuistryCasuists posit their method as an alternative to specified principlism andother approaches to bioethical decision-making. It is a method emphasiz- ing full appreciation of cases. In 1988, Jonsen and Toulmin published TheAbuse of Casuistry in an attempt to renew respect for casuistry as a methodof moral reasoning. Since then, a variety of forms of casuistry have been presented in the literature.5 In this issue of The Journal of Medicine andPhilosophy, Carson Strong defends a form of casuistry which recognizesthe importance of ethical principles. He argues that some versions of prin- ciplism and casuistry are compatible, but that specified principlism is not apractical method of making ethical decisions and resolving cases. One ofStrongÕs criticisms of RichardsonÕs 1990 paper is that RichardsonÕs exam- ples do not include enough details. Strong tries to Òfill in the blanksÓ andsee what specification would offer when faced with an actual case (or atleast with a more realistic sample case). Strong identifies two central problems with specification that become evident when one does look at acase with more details: first, the way one chooses to specify the principlesdepends on prior choices about assigning priorities to principles that con- flict, and second, another method (such as casuistry), rather than specifi-cation itself, does the work of actually assigning priorities to the princi-ples.Strong tries to demonstrate the usefulness of casuistry (as he under-stands it) in determining which specification will enhance coherence amongnorms, as specified principlism requires. He tries to show that specified principlism needs another method to do the reasoning, and casuistry canbe this method. Specified principlism needs a method that will allow oneto Òassign priorities to conflicting principles in clinical casesÓ (2000, p. 330). There is a sense in which casuistry might be a pre-requisite forspecified principlism.

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ANA SMITH ILTIS280Casuistry, Strong says clearly, is not an ethical theory, and casuists donot claim to offer an ethical theory, to be able to give absolute answers, orto be able to resolve all cases. Rather, casuistry is a Òmethod of arriving at justifiable decisions É [in] É specific casesÓ (2000, p. 330), andÒyield[ing] conclusions that are discursively justifiable,Ó and this is pre-cisely what Strong thinks is required of good methods of doing bioethics (2000, p. 330). Casuistry is about dealing with actual ethical cases andmaking it possible to come to justifiable resolutions in such cases; it is notabout theory or about the search for the truth.In StrongÕs description of bioethics, we see again the step away fromtheory. Casuistry seems to be, in part, a way to use theory, in the form of ethical values, to resolve cases. In StrongÕs five-point description of his own version of casuistic analysis, the emphasis clearly is on action andchoice rather than on identifying what is right or true. The reasons Strongclaims casuistry is superior to specified principlism revolve around his view that casuistry is more useful. He says, Òthe claim that specified prin-ciplism provides the most promising method for resolving concrete casesand issues in medical ethics is unwarranted. It does not constitute a useful decision procedure for resolving concrete cases, and the claim that it ispreferable to casuistry for such a purpose is unfoundedÓ (2000, p. 339).StrongÕs central concern is the resolution of cases, and this, he thinks, is the work of bioethics. It is work that specified principlism cannot dowithout casuistic reasoning (2000, p. 339).BeauchampÕs response to StrongÕs essay emphasizes that StrongÕs Òcrit-icisms are either off the mark of the principlism [Beauchamp] defend[s] orfail as criticisms of itÓ (2000, p. 342). His focus is tackling StrongÕs argu-ment that specification does not give practical help in resolving cases and that casuistry is a better method (not theory) than principlism and specifiedprinciplism. In response to StrongÕs central criticism of RichardsonÕs 1990paper (i.e., that RichardsonÕs example lacks details), Beauchamp says that those who espouse specified principlism are well aware that as different andharder cases emerge, further specification will be necessary. Such cases willrequire that we refine our commitments. Beauchamp responds to StrongÕs claim that casuistry does all the work of reasoning and justification, evenwhen we use the language of specification, by arguing that just becausespecified principlism has not done all the work to be done does not mean that it (specified principlism) cannot do it. It is simply the case that there will be a need for greater specification (2000, p. 344).Beauchamp then enumerates three points Strong identifies as differ-ences between his brand of casuistry and Beauchamp and ChildressÕ meth-od, points which Strong uses to argue that casuistry is a better method than

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METHODOLOGICAL CASE RESOLUTION281specified principlism. For all three, Beauchamp argues that he and Chil-dress actually do what Strong says they ought to but do not do. He con-cludes that rather than specified principlism needing casuistry, as Strong claims, casuistry needs specified principles. In order to compare paradigmcases to the actual cases to be resolved, as casuists would, there must be away to transfer the values between the paradigm and actual cases: ÒFor a casuist to reason morally, one or more settled values must connect thecases (hence the necessity of ÔmaximsÕ, or moral generalizations)Ó (Beau-champ, 2000, p. 346). The values are what actually connect the cases, and these values are what specified principlism is about for Beauchamp andChildress. Beauchamp concludes that he does not object to casuistic rea-soning, but that casuistry needs specified principlism to transfer values between cases and therefore to be able to compare cases.Casuists sometimes write as if cases lead to moral paradigms, analogies,or judgments entirely by their facts alone or perhaps by appeal only tothe salient features of the case. But no matter how many salient facts arestacked up, we will still need some transferable value premises in order to reach a moral conclusion. The properties that we observe to be ofmoral importance in cases are picked out by the values that we havealready accepted as being morally important. In short, the paradigm cases of the casuists are value-laden with general norms, and a casewould not be a paradigm case without those normative commitments.To this extent, general principles do not follow from cases (even if it is also true that paradigm cases do not follow from principles) (Beau-champ, 2000, p. 346).In BeauchampÕs response to StrongÕs criticisms of specified principlismand in BeauchampÕs description of what he and Childress try to do indeveloping their theory, it is clear that Beauchamp sees himself engaged in a project aimed at coping with medical-morality reality. That is, he andChildress want a method, not a theory, that can actually be useful inresolving cases. As different cases emerge, they inform us as to the areas where greater specification is required (2000, p. 344). Beauchamp andChildress, like Gert, Culver and Clouser, are trying to identify the com-mon morality and bring it to bear on cases. Like casuistry, Beauchamp and ChildressÕ specified principlism is a case-based approach, not a theory-driven one: it is from the ÒhardÓ cases that we learn of the need to specifyprinciples further (2000, p. 344).Jonsen begins his response to StrongÕs essay with a clear statement thathe is concerned with practical ethics and resolving actual cases. He says that

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