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There is great skepticism about the admittance of expert normative ethics testimony into evidence. However, a practical analysis of the way ethics testimony has been used in courts of law reveals that the skeptical position is itself based on assumptions that are controversial. We argue for an alternative way to understand such expert testimony. This alternative understanding is based on the practice of clinical ethics.
The development of public policy on bioethical issues can be approached through substantive moral and philosophic reasoning, or through balancing perceived societal views as to what is ethically acceptable. The Human Embryo Research Panel had to apply the first approach to the question of the moral status of the preimplantation embryo. Only after concluding that the preimplantation embryo was not a full human subject could the panel consider the conditions under which embryo research was ethically acceptable, given a range of societal views, concerns, and interests.
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In most Western countries, health law [and] bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyze these factors and construe a development theory existing of three phases, or ideal-typical models. In the moralistic-paternalistic model, there is almost no health law of explicit medical ethics, and the little law there is is usually based on traditional morality, combined with paternalist motives. The objections to this model are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant in most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product-oriented rather than practice-oriented; they use the same conceptual categories, they focus on minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also results in a certain one-sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again.
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In different countries responses to important bioethical issues are different, as exemplified by the attitudes towards the voluntary and active forms of medical euthanasia. But why is this the case? My suggestion is that the roots of the variety are, to be considerable degree, ideological. The most important present-day political ideologies all have their roots in the prevailing doctrines of moral and social philosophy. In the paper these doctrines are outlined and the predicted response towards active voluntary euthanasia within each model is sketched. The conclusion reached is that while it would in some countries be dangerous to allow euthanasia in the prevailing circumstances, the solution is not to hinder the legalization process but to alter the circumstances.
The main contentions of this paper are two fold. First, there is a more than century-old Japanese tradition of human rights based on a fusion of Western concepts of natural rights and a radical reinterpretation of Confucianism, the major proponent of which was the Japanese thinker Nakae Chomin. Secondly, this tradition, although a minority view, is crucial for remedying the serious defects in the present Japanese medical system. In the latter half of the nineteenth century, Nakae Chomin sought to reinterpret Chinese tradition, especially Confucianism, by injecting the concepts of popular sovereignty and democratic equality, drawn from Western sources. The resulting view maintained the Confucian commitment to a moral nexus for society, but replaced hierarchy with egalitarianism. The pressing need for such an approach to patients' rights in present-day Japan is illustrated by two recent cases: the photographing and commercial exploitation of patients' genitals without serious response by authorities, and the attempt by physicians to manipulate the time of death and, possibly, to improperly pressure family members in order to transplant organs from the brain-dead victim of a criminal assault. Such problems stem from hierarchy and paternalism, which seem to be a legacy of the rapid, state-sponsored introduction of Western medicine in the mid-nineteenth century, and in particular from the government's adoption of and support for German military medicine as a model for Japan.
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Is there a prima facie obligation to produce additional individuals whose lives would be worth living? In his paper 'Is it good to make happy people?', Stuart Rachels argues not only that there is, but, also, that precisely as much weight should be assigned to the quality of life that would be enjoyed by such potential persons, if they were to be actualized, as to the quality of life enjoyed by actually existing persons. In response, I shall argue, first, that Rachels' view is exposed to very serious objections, and secondly, that his arguments in support of his position involve a crucial assumption, which cannot be sustained, concerning the relation between, on the one hand, propositions about good-making and bad-making properties, and, on the other, propositions about right-making and wrong-making ones. I shall then argue that there is a very plausible position concerning the conditions under which an action can be morally wrong which entails the following asymmetry: there is a prima facie obligation not to bring into existence individuals whose lives are not worth living, but there is no corresponding obligation to create additional individuals whose lives would be worth living.
The Principle of Agency says that if it would be good for a state of affairs to occur "naturally," then it is permissable to take action to bring it about. This contradicts the views of some bioethicists, who object to euthanasia, in vitro fertilization, and cloning, even though they acknowledge that the states of affairs produced are good. But the principle, or some form of it, seems inescapable. The opposite view -- that we may not, by our action, reproduce "natural" goods -- may owe its appeal to an implicitly religious view of nature.
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In recent years legal intervention in bioethical matters has increased notably following various paths: court decisions, parliamentary acts, codes of conduct and solemn declarations (i.e. European Bioethics Convention, 1997, or the UNESCO Genome Declaration, 1997). Body and liberty, as a question of fundamental legal rights, are constitutionalized along two paths. The former is vertical (a text created at central level is open to ratification and domestic implementation to finally become the rule in concrete cases). The latter is, above all, horizontal. It is characterized by the existence at world level of a number of centres and institutions, with the judiciary and judge-made law playing a major role. The most important new rights and freedoms in bioethics have been recognized in this ever-changing and troubled environment. The horizontal way has the great advantage of considering the differences as a resource and not as a limit. In the case law on bioethics a sort of jurisprudential model seems to be at work, that goes some way toward a judge-made law at a universal level. Cases such as Cruzan, Bland and Massimo held the fundamental concept of self-determination with surprising similarity. But we don't know if one of them has influenced the others, always supposing that the judges were aware of them. Today's first duty is to raise the consciousness of judges as to how common their problems are and how often their rulings are similar to each other's.
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