The Ethics Blog

A blog from the Centre for Research Ethics & Bioethics (CRB)

Tag: ethics (Page 5 of 6)

All you need is law? The ethics of legal scholarship (By Moa Kindström Dahlin)

9 June, 2015 / / 0 Comments

Moa Kindström DahlinWorking as a lawyer in a multidisciplinary centre for research ethics and bioethics, as I do, often brings up to date questions regarding the relationship between law and ethics. What kind of ethical competence does academic lawyers need, and what kind of ethical challenges do we face? I will try to address some aspects of these challenges.

First, I must confess. I am a believer, a believer of law.

That does not mean that I automatically like all regulations, it is just that I cannot see a better way to run the world, but through a common system of legal norms. Believing in law means that I accept living in a different universe. I know the non-lawyers cannot always see my universe, but I see it clearly, and I believe in it. You’ll have to trust me – and all other lawyers – through training and education, we see this parallel universe and believe in it.

I do not always like what I see, but I do accept that it exists.

I think that understanding a lawyer’s understanding of what law is, is a necessary precondition for going deeper into the understanding of what I here refer to as the ethics of legal scholarship. So, what is law? This question has a thousand answers, stemming from different philosophical theories, but I choose to put it like this:

Law is an idea as well as a practical reality and a practice.

As a reality, law is the sum of all regulation, locally (e.g. Sweden), regionally (e.g. Europe) and internationally. For example, the statutes, the preparatory works, court decisions, the academic legal literature, the general legal principles and other legal sources where we find the answers to questions such as “Is it legal to do this or that?” or “Might I be responsible for this specific act in some way?”

The practice of law has to do with the application of general legal knowledge (whatever that means) to a specific case, and this application always involves interpretation. This means that law is contextual. The result of its application differs depending on situation, time and place.

Law as an idea is the illusion that there are legal answers out there somewhere, ready to be discovered, described and applied. Lawyers live in a universe where this illusion is accepted, although every lawyer knows that this is oversimplified. There is rarely an obvious answer to a posed question, and there are often several different interpretations that can be made.

The legal universe is a universe of planets and orbits: different legal sources and jurisdictions, different legal traditions and ideas on how to interpret legal sources. There are numerous legal theories, perspectives and ideologies: legal positivism, critical legal studies, law and economics and therapeutic jurisprudence to name a few. The way we, the lawyers, choose to look at the law – the lens of our telescope if you like – affects how we perceive and decipher what we see.

Law is sometimes described as codified ethics. The legal system of a state often provides structures and systems for new technologies and medical progress. Therefore, law plays an important role when analyzing a state’s political system or the organization of its welfare system.

Law, in short, is a significant piece of a puzzle in the world as we know it.

This means that the idea of law as something concrete, something we can discover and describe, creates our perception of reality. Yet, we must be aware of the fact that the law itself is intangible, and answers to legal questions might differ, depending on whom (which lawyer) is making the analysis and which lens is being used.

Sometimes the answer is clear and precise, but many times the answer is vague and blurry. When the law seems unclear, it is up to us, the lawyers, to heal it.

We cannot accept “legal gaps”.

The very idea that law is a system that provides all the answers means that we must try to find all the answers within the system. If we cannot find them, we have to create them. Therefore, proposing and creating legal answers is one of the tasks for legal scholars. With this task comes great power. If a lawyer states that something is a description of what law is, such a description may be used as an argument for a political development in that direction.

Therefore the descriptions of what law is and what is legal within a field – especially if the regulation in the field is new or under revision – must always be nuanced and clearly motivated. If the statement as to what law is emanates from certain starting points, this should be clarified in order to make the reasoning transparent.

This is what I would like to call the ethics of legal scholarship.

It is worth repeating: Research within legal scholarship always requires thoughtfulness. We, the scholars, have to be careful and ethically aware all the time. Our answers and statements as to legal answers are always normative, never just descriptive. Every time an academic lawyer answers a question, the answer or statement might itself become a legal source and be referred to as a part of the law.

Law is constantly reconstructing itself and is, to some extent, self-sufficient. But if law is law, does that mean that all you need is law?

Moa Kindström Dahlin

Thinking about law - the Ethics Blog

 

Share this post

The Ethics Blog is now available as a book!

17 December, 2014 / / 0 Comments

Pär SegerdahlDuring the autumn, Josepine Fernow and I selected texts from the Ethics Blog and compiled them into a book. Last week we had the book release!

When blog posts end up on paper, in a book, they can be read like aphorisms: slower than when surfing the net.

I hope that also the PDF version of the book will support slow reading.

We also compiled a Swedish book – here are links to both books:

Welcome to download and read – Merry Christmas!

Pär Segerdahl

(Note: If you read the PDF books via the web browser, fonts and formatting are sometimes affected. If this happens, please download the files on the hard drive.)

We think about bioethics : www.ethicsblog.crb.uu.se

Share this post

What are absolute borders made of?

17 December, 2013 / / 0 Comments

I return to the question in my previous post. I was wondering why biotechnological developments repeatedly invite moral responses in terms of borders that shouldn’t be transgressed by humans. (Think of stem cell research using human embryos.)

What is fundamental in these responses? Is it the absolute border? Do people already have stable notions of borders that shouldn’t be transgressed by humans, as part of semi-metaphysical views of life? Do they respond, “Controversial!”, because they deem some new practice to be transgressing a border that already is in place within their view of life?

Or is the notion of the border itself part of the reaction? Is “the absolute border” reactive rather than the source of the reaction?

I’m inclined to say that the “absolute border” arises with and through the reaction. Let’s call it the intellectual part of the reaction. It is how the reaction presents itself as legitimate; it is how the reaction transforms itself into a reason against the new developments.

The notion of an “absolute border” is how the reaction translates itself into the “space of reasons.”

If so, the recurrent reaction is almost bound to misunderstand itself in accordance with my first suggestion: the border will be perceived as basic, and the reaction will present itself as rational verdict: “The absolute border is being transgressed here; therefore, a moral response is in order!”

We must not forget that entire views of life can be reactive. Even when they are beautiful and admirable human achievements, their function can be that of digesting reactions and providing them with meaning.

My conclusion is that if we want to understand these recurrent reactions, we must not be fooled by how they spontaneously translate themselves into “the space of reasons.” We need a practice of back-translation.

We seem bound to repeatedly misunderstand ourselves. Our much praised faculty of understanding easily becomes a faculty of misunderstanding.

Pär Segerdahl

We challenge habits of thought : the Ethics Blog

Share this post

Uniquely controversial: why is new biotechnology often so extraordinarily upsetting?

11 December, 2013 / / 0 Comments

Artificial insemination, genetically modified organisms, and attempts in synthetic biology to create artificial life have this in common: they tend to provoke moral responses in terms of borders that should not be transgressed.

A recent article by Thomas Douglas, Russell Powell, and Julian Savulescu discusses synthetic biology from this point of view:

They analyze arguments that claim that producing artificial organisms from non-living components is morally significant in the sense that it constitutes “the” ultimate transgression of the border that should not be transgressed.

They quite successfully show that the arguments fail. Certainly, producing artificial life can in some cases instantiate attitudes of hubris; it can produce environmental risks; it can encourage problematic reductionism; and it does produce organisms that, since they lack evolutionary history, have unclear moral status within biocentric accounts of moral status.

But: hubris and environmental risks can characterize other endeavors as well, and there is no reason to assume that creating organisms from non-living components is more likely to sustain hubris or pose environmental threats than modifying existing organisms. Moreover, reductionism is rejected by most biologists, and there is no reason to assume that synthetic biology is uniquely capable of encouraging reductionism. Finally, the fact that artificial organisms have unclear moral status in biocentric accounts is irrelevant, since what really matters for moral status “is not origin, but mental capacity.”

What the article less successfully addresses, though, is the question why people repeatedly want to say: this is an extraordinary activity, it transgresses a border that should not be transgressed. For it has been said before, about other forms of biotechnology. Synthetic biology is not unique in this respect.

The sense of extraordinary transgression is translated in the article into an intellectual claim that synthetic biology is the extraordinary transgression. By turning the recurrent sense of extraordinary transgression into such a specific claim about synthetic biology, the article in my view makes it too easy for itself. It fails to address the original sense of extraordinary transgression.

The question in my headline still awaits its answer.

Pär Segerdahl

We think about bioethics : www.ethicsblog.crb.uu.se

Share this post

Beware of the vanity of “autonomy”

26 November, 2013 / / 0 Comments

Important words easily become totalitarian. They begin with communicating some humanly important point, so we listen with attention. But then it is as if the words suffered from vanity and assumed that our attention was directed at them; not at what they were used to say.

Over time, the words become like grammatical codes of importance in human life.

A word that underwent such a process in bioethics is autonomy. It was first used to communicate an urgency, namely, that patients and research participants must be respected. They have a right to information about what is about to happen, and to decide whether they want to undergo some treatment or participate in some experiment.

Patients and research participants have this understandable right to autonomy.

But as the word was used to communicate this urgency, the importance seemed to move into the word. If patients have a right to “autonomy,” mustn’t autonomy be a valuable trait that can be supported so that we increase the value?

Is autonomy perhaps even the most valuable aspect of the human: our characteristic when we are in our most rational state as rational animals. Perhaps autonomy is human essence?

From having been a comprehensible right, autonomy assumed the appearance of a super important value to constantly look for, like for a holy grail.

The question arose: Should we restrict people’s freedom to make own choices, if the choices threaten future autonomy?

We occasionally do disrespect people’s choices: for their sake. What I’m blogging about today is the tendency to replace “for their sake” with “for the sake of future autonomy.”

A new article in the Journal of Medicine and Philosophy deals with the question. You find the article by clicking the link below:

The article is written by Manne Sjöstrand, Stefan Eriksson, Niklas Juth and Gert Helgesson. They criticize the idea of a paternalistic policy to restrict people’s freedom in order to support their future autonomy.

The authors choose to argue from the opponent’s point of view. They thus start out from the interpretation of autonomy as super important value, and then try to show that such a policy becomes self-defeating. Future autonomy will be threatened by such a policy, much like the dictatorship of the proletariat never liberated humans but chained them to a totalitarian order.

The article is well-argued and should alert those enchanted by the word “autonomy” to the need of checking their claims.

Even though the article does not disenchant the concept of autonomy through the philosophical humor that I described in a previous post, I was struck by the tragicomedy of claiming that the ultimate reason why healthcare staff should not comply with a patient’s request for help to die is that… assisted death would destroy the patient’s autonomy.

Pär Segerdahl

Minding our language - the Ethics Blog

Share this post

Morality as a problem

9 April, 2013 / / 0 Comments

Friedrich Nietzsche made this enigmatic remark about moral philosophy:

  • “In all ‘science of morals’ so far one thing was lacking, strange as it may sound: the problem of morality itself; what was lacking was any suspicion that there was something problematic here.”

What did Nietzsche mean? He seems to have been thinking of a very human tendency, namely, that of assuming that we already know what morality demands, at least roughly. The tendency, then, is to treat morality as given. Every sane person knows it intuitively!

The task of moral philosophy, identified on the basis of this tendency, becomes the following: dig deep enough to find the ultimate foundation of morality; or, fly high enough to catch sight of the ultimate moral principles.

How could Nietzsche view this daring work of digging and flying as being naïve to morality as a problem? People generally don’t ask these ultimate questions about morality. They don’t venture uncertain digging and flying expeditions. Asking the ultimate questions about morality seems anything but naïve.

Although daring on the assumption that morality is given, these ethical expeditions come too late, Nietzsche suggests. If we had been digging and flying a little bit earlier in the research process, we would have discovered that morality isn’t given:

  • “Just because our moral philosophers… were poorly informed and not even very curious about different peoples, times, and past ages – they never laid eyes on the real problems of morality; for these emerge only when we compare many moralities.”

We don’t live in a lukewarm condition of moral unity and certainty. There are different forms of moral sensitivity and we occasionally experience crises of uncertainty. We change our firmest certainties and even view each other’s (and our own earlier) certainties as absurd.

You may think what you like about Nietzsche’s own moral tendency, but he helps us identify morality as a philosophical problem in a more comprehensive way than if we defined the problem on the basis of the human tendency of moral introversion described above.

Morality has two faces. It consists not only of familiar certainties apparently in need of foundations. It consists also of uncertainty, change, and diversity. Certainty turns into uncertainty; and uncertainty into certainty. There is a dynamics here that we fail to see when we give in to the temptation to assume that morality already is given as a set of intuitive certainties.

I want to change Nietzsche’s notion of the task on one point. “Comparing many moralities” may not be the most useful ethical expedition if it is not combined with other investigations, since it may overemphasize facts that make all expressions of moral certainty seem idle; as a deceitful facade that we ought to get rid of once and for all.

The work we need to do rather is describing the two faces of morality simultaneously: achieving an overview of the movements back and forth between certainty and uncertainty.

Morality is stability and certainty and it is change and uncertainty.

Pär Segerdahl

We like challenging questions - the ethics blog

Share this post

Ethical principles causing moral hallucinations

20 February, 2013 / / 0 Comments

I want to continue the discussion in my previous blog post. It concerned an article raising the question whether researchers in genomics have a duty to actively look for incidental findings.

Joanna Forsberg aptly remarked that the notion of looking for findings that one isn’t looking for is strange. She also pointed out that healthcare doesn’t have a duty to look for incidental findings:

  • “In fact, in the context of healthcare incidental findings are (in general) deliberately avoided, by not doing tests when there is no clinical reason to do them. Is the duty of care more extensive in biobank research?”

This pertinent remark ought to worry ethicists. How can the ethical debate have reached a point where it is asked if researchers have duties to provide more healthcare than healthcare itself?

I couldn’t free myself from this problem that Joanna’s remark revealed.

I now believe it has do with the professionalization of ethics. It has become the ethicists’ professional duty to apply ethical principles to medical research. This works tolerably as long as it is possible to identify the traits that make the principles applicable. The application of the principle of beneficence, for example, presupposes that one can identify beneficial traits.

The reason why incidental findings in biobank research are debated so hotly, it seems to me, is precisely the difficulty of identifying traits in this complex terrain to which relevant ethical principles are applicable. Ethicists try hard to find aspects of genetic risk information and participation in biobank research that would make it possible to apply the principles of

  • respect for persons
  • beneficence
  • non-maleficence
  • reciprocity

so that the ethicists can fulfill their professional duty to guide biobankers by proposing an ethical policy for incidental findings.

The risk, however, when ethical principles are applied in desperation precisely because their application is unclear is that the principles begin to steer the description of reality… and to such an extent that they make us hallucinate moral duties.

I think that Joanna’s remark should act as a reminder of that risk.

Pär Segerdahl

We challenge habits of thought : the Ethics Blog

Share this post

Public ethics and human morality

16 January, 2013 / / 0 Comments

Is ethics universally valid or can we act differently as moral individuals than as ethical representatives of public institutions?

I just read a well-argued article in Science Policy Forum, discussing whether patients should be paid for their tissue. As their point of departure, the authors cite the (by now) famous case of Henrietta Lacks.

Contrary to the many readers and reviewers of the bestseller who thought that Henrietta Lacks was exploited by the medical establishment, the authors arrive at the following conclusion. In cases similar to that of Henrietta Lacks, patients (or their families) are NOT entitled to payment for their tissue. – Why not?

First of all, there are no property rights for human bodies, people don’t own the tissue they leave: no one has the right to demand payment for their tissue.

People should, however, be compensated for the effort of giving the tissue. But there is no such effort associated with patient samples, since the samples were taken for the sake of caring for the patients. There is no effort to compensate for.

But what about the revenue generated by the tissue? Can people make millions of dollars on patients’ cells, as in the Henrietta Lacks case, without sharing the profits with the patients (or with their families)?

Once again, the authors argue convincingly that patients have no right to demand payment or part of revenue streams. The tissues are only raw material for developing cell lines. It is the intellectual work of the investigators that creates value. Moreover, since so few donors have tissue that can be used to generate profitable medical products, the end result of trying to be fair by sharing profits with these few lucky donors would be injustice vis-à-vis the majority of donors.

What interests me here is that although I consider the ethical policy proposed in the article as well-argued and right, I can still understand if a morally concerned individual saw injustice in a case like that of Henrietta Lacks and decided to donate money to her family.

Consider this passage from the article:

  • “Christoph Lengauer, a cancer drug developer and former Hopkins faculty member, articulated this sense of inequity when he reportedly told Lacks’s daughter that he thought Hopkins had ‘screwed up’ by not sharing some of the proceeds from the HeLa cell line with the Lacks family.”

The Science Policy Forum article demonstrates that this accusation is not as reasonable as it might seem.

Still, if a concerned individual (like Lengauer) saw injustice in a destiny like that of Henrietta Lacks and personally donated money to the family, I think I could see that as a perfect moral action and not necessarily as deluded.

Can one appreciate the ethical arguments for a policy not to pay patients for their tissue, and still, as an individual, experience injustice and personally donate money?

Unless we demand that human beings should be like representatives of public institutions through and through, I think we can admit such a possibility. It would even make me uncomfortable if we didn’t acknowledge such freedom.

Pär Segerdahl

We like challenging questions - the ethics blog

Share this post

Extended deadline for Researcher in Health Economics: January 7, 2013

12 December, 2012 / / 0 Comments

Ethical questions about health care and medical research often require empirical input, to make arguments valid for real conditions.

Many of the future issues that engage us at CRB need empirical basis in so called Discrete Choice Experiments (DCE). We are therefore recruiting a researcher with a doctoral degree in health economics and documented skills in DCE.

We are looking for a creative person who likes multidisciplinary collaboration and is fluent in English, and who can start working as soon as possible.

Read more and submit your application!

Pär Segerdahl

ethics needs empirical input - the ethics blog

Share this post

Moral tipping points

5 December, 2012 / / 0 Comments

Yesterday, I read a thought-provoking article about biosecurity. It suggested novel ways of thinking about infectious diseases. According to traditional thinking, infectious diseases strike us from outside. Therefore, we protect us from such external threats by building more effective borders. We secure pure healthy spaces and protect these spaces from impure, diseased ones.

The alternative thinking is less geometrically oriented and does not make a sharp distinction between “pure” and “diseased” spaces. Here is an illustration. If I understood the article right, a certain microbe, Campylobacter, is typically present in the microbial flora of farmed chickens. This bacterium does not become a health threat until there is a balance shift in the chickens’ intense relations with their farm circumstances.

Campylobacter “infection” in chickens, then, does not necessarily occur from outside, since the microbe always is present, but through balance shifts at what the authors called “tipping points.”

I was struck by the notion of tipping points. They remind me of processes of moral change:

It is well-known, to most of us at least, that our moral perceptions sometimes undergo dramatic change. Consider the following example, discussed in our CRB seminar series earlier this autumn: sex disambiguation surgery on newborns, when their sex cannot be unequivocally determined by a doctor.

Our present social circumstances are such that being boy or girl, being man or woman is profoundly significant. Being neither, or both, is being in trouble. Legally, for example, you must be male or female, and that’s only one aspect of the demand.

If we live in happy balance with these circumstances, sex disambiguation surgery might strike us as a blessing. Through surgery, the child is “helped” towards becoming unambiguously boy or girl. This is of such importance that “correction surgery” can be allowed even on newborns that haven’t yet developed their way of being in the world. Early surgery might even be preferable.

If, in the other hand, there is a balance shift; if we open ourselves to the possibility that present circumstances can be troublesome and changed – must we legally be male or female? – a tipping point may occur where the helpful correction of a bodily deformation can start to look like… genital mutilation performed to adapt newborns to our culture’s heterosexual norms and dualistic beliefs.

The new ideas may appear foreign to the old ones, as if they came from outside: what have we been reading lately? But they need not be as foreign as they appear and they need not enter our thinking “from outside.” Moral thinking is in dynamic relationships with our circumstances: if these relationships shift, so may our moral perceptions.

At moral tipping points what previously was perceived as “helping” may suddenly look like “mutilating.” What previously was “reality” may turn into “culture” and further into “norms and beliefs.” Changes at moral tipping points can be dramatic, which fools us into thinking that the new ideas necessarily entered our territory from another moral space. But they emerged right here, in our exchanges with our own circumstances.

Why is this important?  I think it suggests paths beyond the age-old relativism-versus-absolutism controversy.

We habitually view opposed moralities as distinct; simply distinct. You have one view on the matter; I have another. When I heard about tipping points, it struck me that opposed moral views often are dynamically connected: one view becomes the other at the tipping point.

Thinking in terms of tipping points can negotiate some sort of peace between standpoints that otherwise are exaggerated as if they belonged to opposed metaphysics.

Someone who speaks of male and female as realities is not necessarily in the grips of the metaphysics of substance, as Judith Butler supposes, but may speak from the point of view of being in untroubled balance with present circumstances.

Someone who speaks of male and female as produced by norms is not necessarily in the grips of relativistic anti-metaphysical doctrines, as realist philosophers would suppose, but may speak at a tipping point where the balance with present circumstances shifted and became troubled.

My proposed tipping point negotiation of peace between apparently foreign moral views and stances does not make the opposition less real; it only avoids certain intellectualist exaggerations and purifications of it.

Moral language functions differently when the circumstances are untroubled compared to when they are troubled. Moral thinking is in dynamic relationships with the world (and with how we inhabit it).

Pär Segerdahl

The Ethics Blog - Thinking about thinking

Share this post
« Older posts Newer posts »