Abstract
In seeking a means of addressing problems in modern secular society in such a way that has moral authority for all parties to a given issue, one might search first for a means to eliminate the grounds of conflict. If a theory can appeal to a source of moral authority which all persons must recognize, and that theory can resolve moral conflicts, then such a theory would provide rationally justified means of resolving morally problematic cases. It is a premise of this work that a thick set of moral claims cannot be so justified to all, but it might be possible to justify and defend a minimal set of claims so that at least some reasonable conclusions can be made and justified to all potential parties to a moral conflict. Such a “thin theory” would be a means to derive solutions to moral conflicts with secular moral authority.
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Notes
- 1.
In H. Tristram Engelhardt , Jr. (1996). The Foundations of Bioethics, 2nd ed. New York: Oxford University Press. [hereafter Foundations, 2nd ed.]
- 2.
Foundations, 2nd ed., p. 70.
- 3.
Foundations, 2nd ed., pp. 8–9, 37–67.
- 4.
Foundations, 2nd ed., pp. 166–179, esp. 177–179, wherein he explains not only the appropriate role of the state to enforce contracts, limit unconsented-to force, use common resources and provide mechanisms to resolve disputes, but also gives multiple indications for when the moral authority of a government is suspect.
- 5.
Foundations, 2nd ed., pp. 11, 12 (emphasis added).
- 6.
Engelhardt , H. Tristram, Jr. (1997). “The Foundations of Bioethics and Secular Humanism: Why is there No Canonical Moral Content?” in Reading Engelhardt: Essays on the Thought of H. Tristram Engelhardt, Jr., Brendan P. Minogue, Gabriel Palmer-Fernandez, and James E. Reagan, eds. Boston, MA: Kluwer Academic Publishers, p. 280.
- 7.
Foundations, 2nd ed., Preface, p. x.
- 8.
Foundations, 2nd ed., pp. 3–11.
- 9.
Foundations, 2nd ed., pp. 40–65.
- 10.
Foundations, 2nd ed., p. 67.
- 11.
Foundations, 2nd ed., p. 68; see also pp. 35–67 wherein he rejects various attempts to define a contentful universal moral theory.
- 12.
Foundations, 2nd ed., p. 67, italics in original.
- 13.
Foundations, 2nd ed., p. 67.
- 14.
Foundations, 2nd ed., p. 123.
- 15.
Foundations, 2nd ed., p. 105.
- 16.
Engelhardt , H. Tristram, Jr. and Wildes , Kevin Wm. (1994). “The Four Principles of Health Care Ethics and Post-modernity: Why a Libertarian Interpretation is Unavoidable”, in Principles of Health Care Ethics, Raanan Gillon, ed. New York: John Wiley & Sons, pp. 135–147. See p. 147.
- 17.
Foundations, 2nd ed., p. 123.
- 18.
Foundations, 2nd ed., Chapter 3, esp. pp. 123–124.
- 19.
The content of a principle of beneficence can come from an implicit contract, wherein one fashions or joins a community with a common view of goods and harms, or through an explicit agreement. In either such case, Engelhardt notes, “the content of a duty of beneficence is grounded in the principle of permission .” Consequently, “the principle of permission is conceptually prior to the principle of beneficence.” See Foundations, 2nd ed., p. 123, under Principle II, Sections A, B, and C.
- 20.
Nelson , James Lindemann. (1997). “Everything Includes Itself in Power”, in Reading Engelhardt: Essays on the Thought of H. Tristram Engelhardt , Jr., Brendan P. Minogue, Gabriel Palmer-Fernandez, and James E. Reagan, eds. Boston, MA: Kluwer Academic Publishers, pp. 15–29, esp. p. 17. This is, of course, a concern common to any theory that completely prioritizes rights claims over beneficence claims.
- 21.
See, e.g., Foundations, 2nd ed., Chapter 4, esp. pp. 171–175. This stance is ameliorated somewhat by the concept of common holdings, which is Engelhardt ’s means of reconciling the essentially libertarian theory with the fact of uneven distribution of resources. (See Foundations, 2nd ed., Chapter 4, esp. pp. 179–180.) Ideally, one would be able to take of ample resources and create whatever one could, then trade it for whatever one could; in reality, there are no more free resources to take and create with. Since his theory of ownership is based on Locke (see pp. 154–166), some version of the “Lockean Proviso ,” which holds that when one takes possession of resources, one must leave “enough, and as good, left in common for others,” must hold. See p. 158. Since it is no longer possible for a person to leave behind as many resources as she takes, Engelhardt holds that, in order to ameliorate this inability, there ought to be an international tax on land holdings, which could then be distributed for the common good. But even with this qualifier, in the world of Engelhardt ’s secular moral theory it is impossible to make very many moral claims, as the land tax would be rather minimal, since it is a tax on resources but not on anything done with the resources. For further discussion, see Hanson, Stephen S. (2007). “Libertarianism and Health Care Policy: It’s not what you think it is.” Journal of Law, Medicine, and Ethics 35(3): 486–489.
- 22.
For a discussion of peaceable manipulation and power differentials, see Foundations, 2nd ed., pp. 308–309.
- 23.
See the discussion of the natural and social lotteries, Foundations, 2nd ed., pp. 379–387.
- 24.
Foundations, 2nd ed., p. 136.
- 25.
Insofar as one’s actions regarding them affect other persons, one can have obligations; for beings such as children and fetuses, actions (such as non-fatal injury) that will impact them when they become future persons can be restricted on grounds of their being unconsented to force against that future person. See Foundations, 2nd ed., pp. 143, 146. However, Engelhardt is explicit that one will be “given little satisfaction” in any attempt to assign on general secular grounds some of the rights of persons to human non-persons (infants, the severely mentally retarded, the very senile), even “the right not to be killed nonmalevolently at whim….” Foundations, 2nd ed., p. 147.
- 26.
Foundations, 2nd ed., pp. 253–271.
- 27.
See, e.g., Foundations, 2nd ed., p. 13: “…it is still possible to save a shred of the modern moral philosophical project, though most (including the author) may find that this salvageable shred is very much less than they had wanted or expected.”
- 28.
Foundations, 2nd ed., p. 70.
- 29.
With the possible exception of animal abuse, on most reasonable definitions — he does, after all, eat veal with full knowledge of what is entailed in the modern production of veal. See Foundations, 2nd ed., pp. 144–146, where he appeals to considerations of beneficence to protect animals; but since beneficence is essentially undefined and unrequired outside of a specific moral community (see pp. 123–124), this is at best a minimal protection. See, for example, his mention of hunting and farming on p. 141—hunters and farmers are those who determine how and on what grounds to be “beneficent ” to their targets and charges.
- 30.
See Foundations, 2nd ed., p. 84.
- 31.
Foundations, 2nd ed., pp. 151–154.
- 32.
They could act if there were a voluntarily accepted public policy. But that policy would have to be universally accepted, not merely voted into place by majority rule, in order to ensure that acting in accordance with it respects the principle of permission .
- 33.
Foundations, 2nd ed., p. 322.
- 34.
Foundations, 2nd ed., p. 322.
- 35.
Foundations, 2nd ed., p. 322. See also pp. 327–328.
- 36.
Foundations, 2nd ed., pp. 146, 258–260.
- 37.
Foundations, 2nd ed., p. 165. But see below, where questions about Engelhardt ’s ambivalence on this topic are raised.
- 38.
Foundations, 2nd ed., p. 141.
- 39.
Foundations, 2nd ed., pp. 154–166.
- 40.
Foundations, 2nd ed., p. 157.
- 41.
Foundations, 2nd ed., p. 165. Note that this is a simplified version of the argument, which fails to take fully into account the idea of a “social” sense of personhood, which is discussed in Social Personhood below. On pp. 329–330 Engelhardt discusses a very similar case, apparently concluding that the parents can refuse a life-saving blood transfusion for the child, on the grounds that it is not a person and, if not treated, will not become a person. The infant thus is theirs to deal with as they see fit, as long as they do not treat him malevolently—as such is judged only by the parents.
- 42.
With the not insignificant proviso noted in Case 2.1: Damned if you Do…: if the child is abused but allowed to live until it grows into a thinking, autonomous person, then that child herself could at that point hold the parents accountable for unacceptable violation of her autonomy by their infliction of physical or psychological injuries that remain now that she has become capable of granting or withholding permission. See Foundations, 2nd ed., p. 260: “Choosing for [a child] does not violate the principle of permission , unless it is clear that [her] permission would not be given.” But if the parents are sufficiently thorough in their abuse of the infant that they kill her, or if the infant is sufficiently mentally handicapped so that she never develops into a full person, then the parents cannot be held accountable in a secular society.
- 43.
Nelson , “Everything Includes Itself in Power”, p. 17.
- 44.
See the discussion of beneficence in Foundations, 2nd ed., on pp. 123–124. Since the infant is not yet a person covered by the principle of permission , there is little to make one think that they can get any protection at all from the prohibition on malevolence except, of course, from persons who understand nonmaleficence to include not harming infants and children. See further discussion below.
- 45.
See Moskop , John C. (1997). “Persons, Property, or Both? Engelhardt: on the Moral Status of Young Children”, in Reading Engelhardt: Essays on the Thought of H. Tristram Engelhardt, Jr., Brendan P. Minogue, Gabriel Palmer-Fernandez, and James E. Reagan, eds. Boston, MA: Kluwer Academic Publishers, pp. 163–174.
- 46.
Moskop , “Persons, Property, or Both?”, p. 171.
- 47.
Margaret Little points this out in her forthcoming work: Little, Margaret O. (Forthcoming). Intimate Duties: Re-Thinking Abortion, the Law, & Morality. New York: Oxford University Press. This is a claim which Engelhardt disputes—he argues both that this has been the manner of describing the condition of infants and children for much of the history of human existence, and that describing the situation as sui generis is a modern invention which requires a contentful theory to function. (Personal conversation, July 2000.) The former claim may be true, but then much of the history of humanity has also allowed adults to be called property as well; it does not follow that either are good descriptions of the relevant beings. The latter claim seems false at least insofar as the circumstances, both social and physical, surrounding the creation of an infant are different from those surrounding the creation of any other thing.
- 48.
Judith Jarvis Thomson ’s classic example describes a violinist hooked up to the kidneys of an unknowing and unwilling host. Though it does resemble in some ways an undesired and unsought pregnancy, many readers are immediately struck that this seems to fail to encompass much of what pregnancy is and entails. See Judith Jarvis Thomson’s “A Defense of Abortion .” Widely reprinted, including in The Problem of Abortion, 3rd ed. (1997). Susan Dwyer and Joel Feinberg, eds. Belmont, CA: Wadsworth Press, pp. 75–87.
- 49.
Thus, for example, a comparison between abortion and the above mentioned cases of maltreatment or killing of infants that Engelhardt could make can be a legitimate one, but it would show only that in both cases ownership is at best a problematic way to describe the relationship between the parent and fetus or born infant. See footnote 47.
- 50.
Foundations, 2nd ed., p. 165.
- 51.
Foundations, 2nd ed., p. 155. It is worth pointing out that Engelhardt ’s theory of ownership is controversial and that his theory could be challenged on these grounds as well as the moral grounds on which it is often challenged, as Locke’s position that property rights derive from labor mixing is commonly criticized. See Wolf, Clark. (1995). “Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations.” Ethics 105: 791–818, esp. pp. 794–797. Since I critique Engelhardt ’s position on its own terms, rather than by challenging his terms, I do not pursue this line of criticism here.
- 52.
This concern admittedly ignores any issues of “property abandonment,” but this concept will not help Engelhardt here. The argument below could be extended to allow the doctor another ground for asserting lack of ownership by the parents, as they arguably have “abandoned” their “property” by refusing treatment.A second concern with the purely genetic ownership explanation is that it can, in odd cases, imply that a non-person has ownership of an infant. It is not unknown for severely retarded, or even comatose or upper-brain dead women to “somehow” become pregnant; on this account, she would own half the fetus and infant. If, of course, one were to argue that her ownership does not exist because she is not a person, then one would be left with the even less appealing claim that the father has full ownership—but more importantly, it isn’t clear how one could claim that. If genetic production of germ cells entails ownership of what is created via that germ cell (assuming said germ cells are not voluntarily given to another) then a non-person seems to have the right to ownership of an infant. The non-person mother did, after all, create the egg cell in exactly the same way as any other pregnant human. It is reasonable to suggest that ownership would lapse if a current person who is a parent were to become upper-brain dead, but where in this case does the lapse occur? Well before the impregnation, perhaps, but how can ownership of a thing lapse before the thing itself exists?An additional issue along the lines of ownership by non-persons is raised by James Rachels in “Why Animals have a Right to Liberty”, Regan, Tom and Peter Singer, eds. (1986), Animal Rights and Human Obligations, 2nd ed. Englewood Cliffs, NJ: Prentice Hall, Inc., pp. 122–131, where he argues that Locke’s theory of ownership shows that squirrels must own the nuts that they gather.
- 53.
Foundations, 2nd ed., p. 156.
- 54.
Foundations, 2nd ed., p. 157.
- 55.
See Moskop , “Persons, Property, or Both?”, pp. 170–171.
- 56.
Foundations, 2nd ed., pp. 148–149, 156, 327.
- 57.
Foundations, 2nd ed., p. 164.
- 58.
Engelhardt does defend a principle of intervention to protect children and other wards, to which he could appeal. This principle will not help in this case. See discussion in Engelhardt’s Principle of Intervention below.
- 59.
Foundations, 2nd ed., pp. 147–148.
- 60.
Foundations, 2nd ed., p. 147.
- 61.
Foundations, 2nd ed., p. 70.
- 62.
Moskop , “Persons, Property, or Both?” pp. 171–172.
- 63.
Foundations, 2nd ed., pp. 155–156.
- 64.
Were he fully autonomous in all respects it would be appropriate in that case to treat him as a full person, fully emancipated from his parents. Since such a case would be fairly straightforward for Engelhardt ’s theory, this case is defined in such a way that the adolescent is explicitly not able to be fully emancipated.
- 65.
Foundations, 2nd ed., p. 156.
- 66.
And this point raises again the concerns noted in the above two cases about the inability to non-contentfully define “reasonable and prudent,” and the difficulties in choosing an appropriate guardian for a non-competent person. No additional help for this resolution is given here, but the problems do complicate this case as well.
- 67.
Foundations, 2nd ed., pp. 327–330.
- 68.
Foundations, 2nd ed., p. 327.
- 69.
Engelhardt (personal communication, July 2000) confirms that the text should read “guardian’s” as written here.
- 70.
Foundations, 2nd ed., p. 328.
- 71.
See Foundations, 2nd ed., p. 123. This would not be true if there were a contract for the child to submit in this case, but as argued above, no such implicit contract for decisions of this sort can be inferred.
- 72.
Baier , Annette C. (1994). “Trust and Antitrust”, in her Moral Prejudices: Essays on Ethics. Cambridge, MA: Harvard University Press, Chapter 6 , p. 116.
- 73.
See English, Jane. (1979). “What Do Grown Children Owe their Parents?” from Having Children: Philosophical and legal Reflections on Parenthood, Onora O’Neill and William Ruddick, eds. New York: Oxford University Press.
- 74.
Baier , “Trust and Antitrust”, pp. 109–110.
- 75.
Katz , Jay. (1984). The Silent World of Doctor and Patient. New York: The Free Press, pp. 90–93.
- 76.
It is a truism in hospitals, etc., that physicians make the worst patients, possibly because they do not fit the mold of the unknowing, weaker patient needing the physician as his conduit of access to the tools of treatment.
- 77.
Engelhardt , “The Foundations of Bioethics and Secular Humanism: Why is there No Canonical Moral Content?”, p. 271.
- 78.
See, e.g., Foundations, 2nd ed., pp. 67–71.
- 79.
Aulisio, Mark P. (1998). “The Foundations of Bioethics: Contingency and Relevance.” The Journal of Medicine and Philosophy 23: 428–438, esp. p. 432. See also Wildes , Kevin Wm. (1997). “Engelhardt ’s Communitarian Ethics: The Hidden Assumptions”, in Reading Engelhardt: Essays on the Thought of H. Tristram Engelhardt, Jr., Brendan P. Minogue, Gabriel Palmer-Fernandez, and James E. Reagan, eds. Boston, MA: Kluwer Academic Publishers, pp. 77–93.
- 80.
Foundations, 2nd ed., pp. 40–64.
- 81.
Engelhardt , H. Tristram, Jr., personal conversation, July 2000.
- 82.
Aulisio, “Contingency and Relevance.” p. 433; see Foundations, 2nd ed., pp. 67–71.
- 83.
See Foundations, 2nd ed., pp. 67 ff.
- 84.
Engelhardt does not reject all uses of force; in fact, he explicitly authorizes it for enforcing contracts, etc. But he does reject force as a means of achieving moral authority. See Foundations, 2nd ed., p. 67.
- 85.
Foundations, 2nd ed., p. 67.
- 86.
Foundations, 2nd ed., pp. 419–420.
- 87.
Loewy , Erich H. (1987). “Not By Reason Alone: A Review of H. Tristram Engelhardt , Foundations of Bioethics.” Journal of Medical Humanities and Bioethics 8(1): 67–72. For a more recent phrasing of the question, see Nelson, “Everything Includes Itself in Power”, pp. 20–23.
- 88.
Foundations, 2nd ed., p. 67.
- 89.
Foundations, 2nd ed., p. 71 (italics in original).
- 90.
If it were not, then any justification for a claim would suffice: “Performing abortions is wrong (or right) because the sky is blue.” The appeal to intellectual authority is in opposition to moral theories that have no role for rational justification, if any such theories exist; Engelhardt is discussing only those in which rational justification plays a vital justificatory role.
- 91.
Though it is typically sufficient to end the conversation.
- 92.
Strictly speaking, the second half of the quote means “force carries no intellectual authority to show that one may or may not impose the ‘correct’ viewpoint on another.” This is, of course, true—force carries no intellectual authority to prove any claim whatsoever—but the more interesting question, which seems to be Engelhardt ’s point and must be answered for his theory to work as it does, is whether anything can show on secular grounds whether or not force can be used to impose the correct viewpoint on another.
- 93.
Foundations, 2nd ed., pp. 67–69.
- 94.
Foundations, 2nd ed., p. 130.
- 95.
Foundations, 2nd ed., p. 69.
- 96.
Foundations, 2nd ed., p. 68. Italics added.
- 97.
Foundations, 2nd ed., p. 11.
- 98.
Engelhardt, “The Foundations of Bioethics and Secular Humanism: Why is there No Canonical Moral Content?”, p. 265.
- 99.
Ibid., pp. 264–265.
- 100.
See, e.g., Engelhardt , H. Tristram, Jr. (1988). “Foundations, Persons, and the Battle for the Millennium.” Journal of Medicine and Philosophy 13: 387–391.
- 101.
I am grateful to an anonymous reviewer who raised this point.
- 102.
See, e.g., Foundations, 2nd ed., pp. 108–110.
- 103.
Wildes , “Engelhardt ’s Communitarian Ethics: The Hidden Assumptions”, pp. 77–93; Aulisio, “Contingency and Relevance.”
- 104.
See Engelhardt , “The Foundations of Bioethics and Secular Humanism: Why is there No Canonical Moral Content?” p. 265, where he notes that “One cannot require permission to carry with it any particular content or will to beneficence without undermining the project itself by begging the question.”
- 105.
One may, of course, choose to reject altogether the concept of giving and asking for reasons. Nothing in particular requires that one be rational. But the practice of morality in a secular pluralist environment, where one is likely to be frequently challenged and must be able to defend one’s claims, requires that one be rational in at least this minimal sense. All this shows is that reason-giving is necessary for the practice of secular morality, not that it is somehow necessary in and of itself.
- 106.
Sidgwick ’s Methods of Ethics and Parfit ’s Reasons and Persons both explore the possibility of deception as a means to furthering the greatest good for the greatest number. See Parfit , Derek. (1984). Reasons and Persons. Oxford: Clarendon Press, pp. 41–43 and Sidgwick , Henry. (1981). The Methods of Ethics, 7th ed. (1907). Indianapolis: Hackett Publishing Co., pp. 489–492.
- 107.
Although it is essentially grudging tolerance to refuse to accept the facts but not to attempt to change them by all means possible, this option is included because it seems relevantly different from accepting tolerance as a good thing in itself.
- 108.
See comparable commentary with regard to the principle of permission in Engelhardt , “The Foundations of Bioethics and Secular Humanism: Why is there No Canonical Moral Content?”, pp. 264–265.
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Hanson, S.S. (2009). Engelhardt and the Content-Free (?) Principle of Permission. In: Moral Acquaintances and Moral Decisions. Philosophy and Medicine, vol 103. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-2508-1_2
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