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Is Bioethics Broke?: on the Idea of Ethics and Law “Catching Up” with Technology

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IS BIOETHICS BROKE?: ON THE IDEA OF ETHICS AND LAW “CATCHING UP” WITH TECHNOLOGY M ICHAEL H. SHAPIRO* TABLE OF CONTENTS Introduction: The Topic—What Does It Mean?.. 2 0 A. In General..............................................2 0 1. Some Constituent Issues................................2 1 2. The Planned Analysis..................................2 1 B. Dissing Bioethics: A First Look at Why It Don’t Get No Respect (or at Least Not a Lot). .........................2 4 C. Some Clarifications Concerning Catching-up, Kinds of Critiques and Ethical Theory....................................2 7 1. Critiques of Discourse vs. Critiques of Technological Uses and Their Underlying Knowledge, Theoretical and Technical.....................................2 7 2. “Standard Ethics” vs. “New Ethics”. 2 7 3. The Demand for Answers and an End to OTOHs (E-Mail Jargon for “On the One Hand” and “On the Other Hand”).....................................3 0 a. If others can answer the questions facing their disciplines, why can’t you?. ...............................3 0 b. The moral “oracle”: Expertise and democracy.. 3 1 4. Technology and Psychic Overload from “Too Many Options”.. 3 4 5. The Quality of Debate “Within” Bioethics. 3 5 6. The Inside/Outside Perspectives. 3 8 7. Does the “Technological Imperative” Make Catching Up Impossible.......................................3 8 I. The Ascent of Technology and the Decline of Humanity: On the Distinctiveness of Bioethics................................3 9 A. The Descent.............................................3 9 B. Is Bioethics Distinctive and on What Notion of “Distinctiveness”?: A Definitional Inquiry. ................................4 0 II. Is Bioethics “Broke?”: Elaborating on Its Dissing.. 4 3 A. Preface................................................4 3 B. Kinds of Critiques: Outcomes and Bottom-line Disagreements; Philosophical/Value Disagreements; Ideological Differences; and Mistakes.........................................4 4 1. Outcome and Process..................................4 4 * Dorothy W. Nelson Professor of Law, University of Southern California. Thanks to Professor Roy G. Spece, Jr., and to my research assistants, Mark Lemke, Daniel Houser, and Christopher Perkins. 18 INDIANA LAW REVIEW [Vol. 33:17 2. Warring Philosophical Movements or Dispositions. 4 7 3. Disagreements over the Status of Particular Values, Such as Autonomy, Fairness, Justice, Equality, Privacy, and Utility. ......................................4 7 4. Disagreements About Matters of Fact—or Are They?. 4 7 5. Semantic Confusion...................................4 8 C. Excessive Focus Within Bioethics on the Application of Rules, Principles, and Standards; Formalism. ...................4 9 1. Abstractions and Formalism.............................4 9 a. Generalism in general. .............................4 9 b. Who has missed what?; examples. 5 0 c. Formalism: More on abstractions and concretions.. 5 5 (i) Formalism in legislative or administrative rule-making................................5 7 (ii) Formalism in common law rule-making. 5 8 (iii) Formalist interpretive theories applied by adjudicators................................5 9 (iv) Formalism and being stuck at lower-level abstractions................................6 0 (v) Formalism and bioethics.........................6 0 2. Principlism..........................................6 4 3. Casuistry and Pragmatism: Preferred Modalities?. 6 5 a. Maxims and postulates. ............................6 5 b. Pragmatism. .....................................6 6 4. Insufficient Empirical Research, Beyond Characterization of Particular Situations. ............................6 8 D. Insufficient Focus on the Most General Abstractions. ...........7 0 E. Excessive Focus on Autonomy..............................7 1 1. Ignoring the Preconditions for the Exercise of Autonomy.. 7 4 2. Inattention to Ideas of Community and Responsibility. 7 6 3. Inattention to Matters of Culture, Ethnicity, Race, and Gender.......................................7 7 4. Inattention to Risks of Reifying Autonomy, on the One Hand, and Compounding Professional Hegemony, on the Other.. 7 8 F. Excessive Attention to Rights...............................8 3 G. Overlegalization. ........................................8 7 1. What Is It?. .........................................8 7 a. Having legal rules (whether legislative, administrative, or common law) dealing with personal matters that should be left to private ordering. 8 9 b. Vindicating certain interests through the mechanism of formal legal rights, powers, etc.. 9 1 c. Subjecting matters of choice that should be resolved intuitively and according to the situation at hand, instead of by rules and rule-governed resolution mechanisms...................................9 1 1999] IS BIOETHICS BROKE? 19 d. Varying from traditional patterns of human interaction— including the formation of personal relationships based on kinship, friendship, and mating—and making them matters of formal agreement by contract or other legal/commercial devices.. 9 2 e. Finally, the idea that, within the legal field, the wrong legal neighborhood has been chosen, e.g., opting for criminal sanctions when civil or administrative sanctions would do as well or better; and opting for formal adjudication rather than informal dispute resolution.....................................9 2 2. Further Applications to Bioethics: Law and Courts. 9 3 a. Private ordering...................................9 3 b. Overlegalization and “catching up”.. 9 5 c. Rule of law via rule of courts: When legal “progress” may consist of public ordering by formal adjudication rather than either private ordering, on the one hand, legislation or administrative rule-making, on the other. 9 6 H. Bioethics as We Know It Ratifies Establishment Practices and Values and Fails to Question Foundation to a Sufficient Degree. ...........................................103 I. Bioethics Bears the Smell of the Lamp and Offers No Practical Guides.............................................107 J. There Is No Unified Theory Underlying Bioethical Analysis and Problem Solving.....................................107 K. So Is Bioethics Broke or Not?..............................108 1. Disagreement with Outcomes. 109 2. Inappropriate Methods/Concepts of Analysis and Valuation. 109 L. A More Suitably Limited Critique of Bioethics Which, if Implemented, Would Clearly Count as Some Progress.......110 1. Loose Talk.........................................110 2. Refocusing on Interpersonal Bonds in an Age of “Investing” in Genetic and Nongenetic Human Engineering Plans: The Risks of Reduction............................119 III. The Idea of Progress in Ethics and Law, and Science and Technology: If Bioethics Were Broke, How Would We Fix It?.. 120 A. Preface: The Domains and Senses of Progress................120 1. Advancement, Stasis, Regress, and Falls. 120 2. Categorizing Progress.................................120 B. The Search for Final Answers and the Impossibility of Progress (in That Sense)......................................125 1. Setting Up a Search..................................125 2. A Search...........................................125 C. Progress in What?: Behavior, Theory, Insight, and Deliberation........................................127 1. Progress in Moral Behavior and Law-abidingness.. 128 20 INDIANA LAW REVIEW [Vol. 33:17 2. Progress in the Quality of Moral and Legal Theory and Deliberation; Normative Insights and New Conceptual Tools as Progress; Micro and Macro Progress; the Limits of Progress in the Face of Indeterminancy.. 129 a. Does moral progress rest on discerning objective truths about moral reality?............................130 b. Examples.......................................131 c. “Micro” vs. “macro” progress: Personal moral “closure” and objective moral progress.. 135 3. Progress in Bioethics.................................137 a. Conceptual constraints on the idea of progress. 137 (i) Again, the example of principlism. 137 (ii) The example of distributing scarce lifesaving resources, especially organs: When paradox blocks “progress”; lotteries and rationality. 142 b. Catching up on “catching up”: Is it progress to know that progress is impossible?; remarks on markets and decentralized choice...........................149 4. Terminating Technology; Technological Imperatives Again. 152 IV. A Reversal: When Science and Technology Catch Up with Human Thought—Implementing the Idea of Progress. 153 A. In General.............................................153 B. Neuroscience, Genetics, Ethics, and Law.....................154 Conclusion: Bioethics Defended Against the Charge That It Is Presently Inadequate to the Task of Appraising Biological Technology. 157 INTRODUCTION: THE TOPIC—WHAT DOES IT MEAN? A. In General In its grandest form, the topic of this Symposium is “Law and Technology in the New Millennium,” and the subtopic I was asked to address is “Do law and ethics have to catch up with science and technology?”1 Whatever one 1. To be precise The theme of the symposium is whether technological developments have outstripped the ability of legal ideas, processes, institutions, and the profession to address some of the issues presented by those developments. The question [is] whether the advances in medical technology, such as those in the areas of genetics or transplantation, have surpassed the ability of the current legal framework to address them. E-mail from Kristyn E. Kimery, Symposium
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