Philosophy and Medicine

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3 ETHICS EXPERTISE

4 Philosophy and Medicine VOLUME 87 Founding Co-Editor Stuart F. Spicker Editor H. Tristram Engelhardt, Jr., Department of Philosophy, Rice University, and Baylor College of Medicine, Houston, Texas Associate Editor Kevin Wm. Wildes, S.J., Department of Philosophy and Kennedy Institute of Ethics, Georgetown University, Washington, D.C. Editorial Board George J. Agich, Department of Bioethics, The Cleveland Clinic Foundation, Cleveland, Ohio Nicholas Capaldi, Department of Philosophy, University of Tulsa, Tulsa, Oklahoma Edmund Erde, University of Medicine and Dentistry of New Jersey, Stratford, New Jersey Eric T. Juengst, Center for Biomedical Ethics, Case Western Reserve University, Cleveland, Ohio Christopher Tollefsen, Department of Philosophy, University of South Carolina, Columbia, South Carolina Becky White, Department of Philosophy, California State University, Chico, California The titles published in this series are listed at the end of this volume

5 ETHICS EXPERTISE HISTORY, CONTEMPORARY PERSPECTIVES, AND APPLICATIONS Edited by LISARASMUSSEN University of Alabama, Birmingham, AL, U.S.A.

6 A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN (HB) ISBN (HB) ISBN (e-book) ISBN (e-book) Published by Springer, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. Printed on acid-free paper All Rights Reserved 2005 Springer No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands.

7 TABLE OF CONTENTS ACKNOWLEDGMENTS vii LISA M. RASMUSSEN: Introduction: In Search of Ethics Expertise 1 SECTION I: A GUIDED HISTORICAL TOUR SCOTT LABARGE: Socrates and Moral Expertise 15 CARRIE-ANN BIONDI KHAN: Aristotle s Moral Expert: The Phronimos CHRISTOPHER TOLLEFSEN: Hume on True and False Philosophy DALE E. MILLER: Moral Expertise: A Millian Perspective 73 BEN EGGLESTON: The Ineffable and the Incalculable: G.E. Moore on Ethical Expertise 89 GRIFFIN TROTTER: Pragmatism and Ethical Expertise 103 SECTION II: CONTEMPORARY PERSPECTIVES MARY ANN G. CUTTER: Expert Moral Choice in Medicine: A Study of Uncertainty and Locality 125 CORINNA DELKESKAMP-HAYES: Societal Consensus and the Problem of Consent: Refocusing the Problem of Ethics Expertise in Liberal Democracies 139 LISA S. PARKER: Ethical Expertise, Maternal Thinking, and the Work of Clinical Ethicists 165 SECTION III: CONTEMPORARY APPLICATIONS ROBERT M. VEATCH: The Roles of Scientific and Normative Expertise in Public Policy Formation: The Anthrax Vaccine Case 211 KENNETH CUST: Philosophers Return to the Agora 227 STEPHEN WEAR: Ethical Expertise in the Clinical Setting 243 ANA SMITH ILTIS: Bioethical Expertise in Health Care Organizations 259 KENNETH KIPNIS: The Expert Ethics Witness as Teacher 269 NOTES ON CONTRIBUTORS 279

8 ACKNOWLEDGMENTS The authors who contributed to this volume have considerably enhanced my understanding of the issues involved in ethics expertise. I thank each of them for their thoughtful contributions and for their (expert) patience as the volume was brought to fruition. Thanks also go to anonymous reviewers of the individual papers and an anonymous reviewer of the volume. I would especially like to thank Prof. Dr. Oliver Scholz, who reviewed the volume for Springer Publishers and offered many helpful suggestions. Reviewing is a laborious activity, and I am grateful for the time and energy spent on behalf of this volume. The editor of the Philosophy & Medicine series, H. Tristram Engelhardt, Jr., has been supportive throughout the process of producing this volume. I thank him as ever for his mentorship and generosity. Finally, thanks to my husband, Benjamin Hippen, for our ongoing philosophical conversations.

9 CHAPTER 1 LISA M. RASMUSSEN INTRODUCTION: IN SEARCH OF ETHICS EXPERTISE 1 1. INTRODUCTION Expertise is commodified. In a busy, specialized world where one person simply cannot master all fields, we turn to experts to help us with a variety of issues. It is not surprising, then, that a variety of people from a variety of disciplines have stepped forward as bioethicists or ethics experts. 2 It may be difficult to find many who would actually call themselves moral or ethical experts, but the possibility of moral expertise is the presumption behind much of the practice in bioethics consultation, expert bioethics witnessing in court, policy recommendations and the offering of media sound bites. This volume addresses the question of whether ethics expertise exists, what training would convey such expertise, and what claims of expertise warrant. A first response to the idea of ethics expertise might be skepticism or suspicion. One might be skeptical because questions of right and wrong have been debated for a significant portion of human history; why should we expect that we can answer them now? And if we cannot answer these questions, the skeptic might ask, how can someone become an ethical expert? Suspicion might arise because, as Stephen Wear points out in this volume (Chapter 13), the canonization of liberty, autonomy and diversity mitigates against formally recognizing or ceding authority to any such expertise even if it were conceded to exist. A proponent of the importance of individual freedom, or the fact of moral plurality, or the positive value of diversity, might resist any attempt to recognize ethical expertise. However, two issues should give us pause before we resist ethical expertise altogether. First, the proliferation of bioethics experts suggests that people find them helpful. Although it is not immediately clear that such experts are gurus of the good, intellectual humility at least recommends that we honestly investigate the phenomenon. We may eventually conclude that such experts are charlatans at worst or misguided at best, but we may also conclude that there is indeed a thing called ethics expertise. Second, expertise comes in many forms. So again, we may conclude that there is such a thing as ethics expertise, but it is an expertise that does not threaten autonomy or diversity. For example, if we interpret ethical expertise as expert 1 L. M. Rasmussen (Ed.), Ethics Expertise: History, Contemporary Perspectives, and Applications, Springer. Printed in the Netherlands.

10 2 LISA M. RASMUSSEN scholarly knowledge about the content of particular moral theories, nothing practical necessarily follows. An answer to the question Does ethics expertise exist? might always be answered by, It depends on what you mean by ethics expertise, but this need not be a pernicious relativism. Much of the literature on moral expertise begins with the question of whether or not it is even possible. Each author interprets ethics expertise differently, and draws conclusions about that particular interpretation. For example, Peter Singer argues that the process of deciding right and wrong involves gathering information, determining what counts as relevant information and how it fits with a particular moral position, and avoiding one s own bias. For this reason, he suggests, [s]omeone familiar with moral concepts and with moral arguments, who has ample time to gather information and think about it, may reasonably be expected to reach a soundly based conclusion more often than someone who is unfamiliar with moral concepts and moral arguments and has little time. So moral expertise would seem to be possible (Singer, 1972, pp ). In contrast, Cheryl Nobel (1982) suggests that moral expertise is the provision of moral wisdom, and that moral philosophers are too theory-bound to provide such wisdom (the teaser for the article reads: Have philosophers substituted moral reasoning for moral wisdom? ). 3 Bruce Weinstein (1994) distinguishes between expertise in descriptive ethics, expertise in metaethics, expertise in normative ethics, and expertise in living a good life. Rosemarie Tong recognizes room both for expertise as command over specific matters of fact and/or value and as ability to achieve consensus about what is true / false, or right / wrong (p. 409). Scott Yoder (1998) suggests that ethical expertise is not about making correct or true judgments, but rather it is the ability to justify coherently one s moral judgment. Not only do authors disagree on whether ethics expertise exists, they disagree on what it is. Therefore, we can imagine a variety of definitions of ethics expertise, which include the type of knowledge such experts possess, the degree of fallibility permitted of such experts (and how this fallibility would be measured), and whether it is objective/scholarly knowledge or, on the other hand, substantive knowledge about the good. Among the salient questions are: 1. How does ethics expertise relate to morality and ethics in general? That is, does an ethics expert possess moral wisdom in the sense of knowing the Truth about the right and the good? Is an ethics expert also a good person, and if so, is he so by definition? That is, can we imagine an ethics expert who is a bad person, or must knowledge and behavior always cohabit in an ethics expert? 2. What kind of training gives one ethics expertise? Is it only graduate school education in philosophy or theology? 3. What kind of political or legal authority does an ethics expert possess? If an ethics expert advises on government policy, are policy makers mistaken to override that advice? Would a bioethics consultant s expert opinion be sufficient to override the wishes of others, including the patient or family member? Even if that were illegal, would it be unwise, morally speaking? 4. How (apart from credentialing dependent on question 2) can the rightness of an ethics expert s opinion be assured? On what basis can it be challenged?

11 INTRODUCTION 3 Section I examines historical philosophical understandings of expertise in order to situate the current institution of bioethics. Section II focuses on philosophical analyses of the concept of expertise, asking, among other things, how it should be understood, how it can be acquired, and what such expertise warrants. Finally, section III addresses topics in bioethics and how ethics expertise should or should not be brought to bear in these areas, including expertise in the court room, in the hospital room, in the media, and in making policy. 2. A GUIDED HISTORICAL TOUR As Scott LaBarge points out, Plato s dialogues can be viewed as an extended treatment of the concept of moral expertise, so it is fitting to begin the volume with an examination of Socrates and Moral Expertise. Given Socrates protestations (the Oracle at Delphi notwithstanding) that he knows nothing, LaBarge observes that it would be interesting to determine both what a Socratic theory of moral expertise might be and whether Socrates qualified as such an expert. Plato s model of moral expertise is what LaBarge calls demonstrable expertise, which is concerned mainly with the ability to attain a goal and to explain how one did it. The problem with this account is that when one tries to solve the various problems in the model for example, allowing that moral expertise is not an all-or-nothing skill then one is immediately faced with the credentials problem. As LaBarge puts it,...since we have acknowledged that expertise comes in degrees, even moral expertise, and thus that even genuine moral experts can disagree from time to time, the crucial task that remains is to explain just how moral experts can be recognized (p. 24). But how can non-experts recognize and judge the credentials of such experts? In the case of car repair, LaBarge explains, a layperson might be able to judge a mechanic s expertise by observing the results of his work: if a problem is solved after the mechanic s work, the layperson is justified in believing that the mechanic knew what he was talking about. Moral expertise, however, is not so straightforward: Confronted by competing camps of experts who each offer different and incompatible explanations of moral issues, the nonexpert is not well-situated to judge which of the competing camps possesses genuine expertise, if any (p. 25). And in this case, unlike the case of auto repair, there is no objective criterion by which the non-expert can make a reasonable assessment of expertise:...on the issues where we feel the greatest need for the guidance of a moral expert...the shape of a successful solution to our moral problems is typically the very thing at the heart of the controversy (p. 26). The unsatisfying answer to this dilemma is that [s]ince the nature of success in moral expertise is itself under dispute, and this dispute characteristically does not produce a clear winner recognizable to all, ultimately the non-expert cannot confidently assert that any of the claimants to moral expertise is a genuine expert (p. 27). It makes sense to take Socrates at his word when he protests that he is not a moral expert, because according to the six Platonic criteria LaBarge offers, Socrates does in fact fail to measure up:

12 4 LISA M. RASMUSSEN Thus Socrates turns out to deny he is a moral expert for much the same reasons that we found make moral experts so hard for non-experts to identify. He is unable to resolve the confusion and disagreement even of intelligent, wellmeaning... and he acknowledges that he is unable reliably to produce conviction even on matters where he is confident he has the truth (p. 30). Instead, Socrates has what LaBarge calls dialectical expertise. In his activities as gadfly, he constantly prods people regarding their values, attempting to make their souls more beautiful not by imbuing those souls with value, but rather by removing ugly ignorance (p. 32). By exposing the contradictions inherent in his interlocutors belief sets, Socrates deflat[es] their presumption to moral expertise and...inspir[es] a new commitment to seek such expertise (p. 33). Thus Socrates is right in asserting his ignorance, and the Oracle is right in asserting his wisdom. According to Aristotle, the human good proves to be activity of the soul in accord with virtue (quoted in Khan, p. 41). But, as Carrie-Ann Biondi Khan points out in Aristotle s Moral Expert: The Phronimos, it turns out not to be easy to live in accord with virtue, so we need moral experts to help us. She first gives a brief description of Aristotle s moral theory, and then demonstrates the crucial role the phronimos, or moral expert, plays in this theory. The human good, as Aristotle understands it, is based on the telos (purpose or end) of humans. He argues that the highest end of human life is to use the reasoning part of the soul, and to use it virtuously. Moreover, moral virtue and moral knowledge are essential parts of this end. Virtue, Khan points out, has four key features: it is a mean between two extremes; it involves decision and deliberation; it requires the use of reason; and it must be acquired through habituation. Aristotle himself believed that there would be very few people who could do all of these things, both because it is difficult to attain the requisite sort of wisdom and because it is difficult to overmaster one s passions. Accordingly, for Aristotle, moral experts must exist in order for others to live the good human life. Of course, the next pressing question is how one becomes a phronimos. Khan discusses three problems with Aristotle s account of the method problems that may leave one in doubt as to whether or how such expertise can really be acquired. Interestingly, the credentials problem that LaBarge discusses (see above) arises again in Khan s discussion of Aristotle: if one is not oneself a moral expert, how can one recognize those who are? For the general question of moral expertise, perhaps the most intriguing question that arises in Khan s discussion is whether the existence and identification of the moral expert is indeed necessary for the rest of us to live the good human life? In Hume on True and False Philosophy, Christopher Tollefsen argues that some kinds of contemporary expertise are examples of false philosophy, but that there is a possible kind of expertise that demonstrates true philosophy. A central feature of Hume s theory was the claim that morality and the moral impulse derived from sentiments rather than reason. The impact of this, according to Tollefsen, was that Hume came to see the use of abstract reason in morality as not simply wrongheaded, but potentially dangerous and divisive...by attempting to transcend custom and sentiment, an impossible task, [it] could only end up seizing covertly upon some principle of common life, and transforming it into an overarching principle of reason intended to rule over common life (p. 56).

13 INTRODUCTION 5 Once one starts down this path, however, if one is honest, the search will eventually result in true philosophy, in Hume s theory. Tollefsen presents Livingston s account of the dialectic that moves the honest person from false to true philosophy. When one uses abstract reason to find an Archimedean point from which to view morality, one is subject to a variety of possible errors. In order to overcome these errors, one can break judgments down into smaller pieces but the result is that each of those pieces are themselves subject to error, so one has in fact multiplied problems rather than solved them. One is reduced to profound skepticism. Yet we clearly are not frozen by skepticism in our daily lives, and this proves, according to Hume, that belief is not, after all, founded on reason, but on custom (p. 57). But if this is the case, what is true philosophy, and how does it differ from false philosophy? According to Tollefsen, there is a negative and a positive aspect of Hume s true philosophy. The negative task of true philosophy is the abatement of pride that drives the construction of systems and theories i.e., the skeptical task. The positive task, Tollefsen shows, has several components, including refin[ing] and moderat[ing] the passions generally, investigating the principles in common life, and taking part in public conversation on matters of societal import. In the end, Hume s account is a portrait of the true philosopher as a kind of rhetorician (p. 69). It is interesting to view moral expertise in bioethics through the Humean prism of true and false philosophy. Many approaches in bioethics, Tollefsen points out, use reason to elevat[e] a single abstract principle and impos[e] it from above (e.g., utilitarianism), yet other approaches attempt to embrace the context of bioethics, with all its complexity, emotional aspects and tangle of motivations. Though there are challenges to be mounted against a Humean version of moral expertise, those favoring such an approach in bioethics can find sympathetic accounts, Tollefsen suggests, in the works of Edmund Pellegrino, Leon Kass, or William May. Moral Expertise: A Millian Perspective by Dale Miller presents the concept of moral expertise as Mill might have interpreted it. Miller begins by pointing out the distinction between theoretical moral expertise, the ability to evaluate the arguments for and against rival moral theories and pick out the one for which the strongest case can be made (p. 75), and practical moral expertise, being able to apply a moral theory, in order to determine in concrete terms what it requires from us (p. 75). Theoretical expertise is not particular to any theory, but the requirements for practical expertise, Miller points out, will vary from theory to theory. Though there is disagreement about whether Mill himself was an act or a rule utilitarian, Miller points out that Mill seems to have affirmed that the rules of ordinary morality are a good first approximation (p. 80) of how to conduct ourselves morally. Clearly then, Miller argues, Mill would understand expertise in terms of moral rules. This expertise can come in higher and lower forms, with the lower consisting merely of acquaintance with a decent set of such rules, and the higher consisting of the ability to improve upon the set that is conventionally accepted (p. 81). Just as Aristotle held that the phronimos (see above) was a rare person, Mill holds that it is the philosopher rather than the multitude who is able to

14 6 LISA M. RASMUSSEN improve on the commonly accepted rules of morality (Miller, p. 81). In Mill s case, claims to the higher form of expertise require that one have empirical knowledge (especially of human nature) and knowledge of human character. Echoing Aristotle s notion of habituation, Mill holds that for someone to have the higher form of expertise, one must know what character traits or habits are most desirable, and how they can be instilled in people (p. 81). Mill was dubious about his own and others abilities to instill these traits, and likewise would have been dubious about anyone s claim to moral expertise. What of the question of moral experts as moral exemplars? Miller observes that Mill was a moral externalist, so he would not hold any necessary connection between possessing moral expertise (even of the higher type) and being motivated to do the right thing. If this is so, then while we might today engage moral philosophers cum moral experts to help us solve the profound dilemmas in bioethics (which might require revising our commonly accepted but conflicting moral rules), we should not expect them personally to be paragons of virtue. The Ineffable and the Incalculable: G.E. Moore on Ethical Expertise by Ben Eggleston neatly sets out Moore s theory of ethics and indicates what Moore s thoughts might have been regarding ethical expertise. Though Moore himself was more concerned with the good than the right, his theory can nonetheless address the question of moral rightness, and it is this course that Eggleston pursues. As a consequentialist, Moore held that it is in virtue of the consequences brought about by an action that such an action is right; i.e., productive of the most good. But there are three aspects to Moore s defense of consequentialism that impact what he might have to say about ethical expertise. First, Moore held consequentialism to be analytically true, and would claim that any moral expert had to embrace this position (because not to recognize the truth of this claim would be an indication of faulty judgment). Second, the expert must understand that the good is ineffable yet possess the intuition to see it, and third, he must be able to make judgments about the best means to a given good end. Moore holds that questions about right actions cannot be answered without first answering two other questions: We must know both what degrees of intrinsic value different things have, and how these different things may be obtained (quoted in Eggleston, p. 93). The first question concerns knowing what the good is, but it turns out to be difficult to do this. Moore argues that when people try to explain what the good is, for example by saying the good is the pleasant, they commit the naturalistic fallacy that is, they make the mistake of thinking that by describing a fact or feature about something (its pleasantness, for example), they are saying something about the good. According to Moore, the good is a simple, indefinable, unanalysable object of thought, or as Eggleston summarizes it, the good is ineffable. Therefore an ethical expert must be able to discern, by intuition, the goodness and badness, both absolute and relative, of various possible ends (p. 96). As Eggleston points out, there are a number of potential problems with this view, but it is a central feature of Moore s position. The final trait an ethical expert must possess is the ability to make empirical judgments of cause and effect that is, he must be able to determine the best means to a given end. Here we meet with what Eggleston has identified as the

15 INTRODUCTION 7 incalculability problem: as with other consequentialist theories, Moore s theory suffers from the fact that it is very demanding. One must know all of the possible acts he could perform and be able to calculate all the possible consequences of each. Between the difficulty of knowing the good and the best way of obtaining it, Moore s theory seems impossible to implement. However, Eggleston points out, in the end Moore recognizes common-sense morality as a reasonable approximation of the correct moral rules. Griffin Trotter s paper, Pragmatism and Moral Expertise, begins by pointing out the pluralistic nature of contemporary secular societies, indicating that part of the question of ethical expertise stems from the lack of a commonly-recognized moral code or moral authority. In such societies, Trotter suggests, there are four possible models of the ethical expert. The first is mainly a theoretical expert, who knows about moral theory in a scholarly sense. The second kind of expert is an inquirer; she will know how best to conduct an inquiry into what is right and wrong, applying a particular theory. Third, the surveyor is someone who knows about peoples moral customs, in an anthropological sense. Finally, the counselor is a person who helps individuals and communities become ethically good, or do ethically good things (p. 106), however that individual or community defines good. The first two types of expertise focus more on epistemic issues, while the latter two constitute what Trotter calls the therapeutic option. According to Trotter, with certain caveats, Peirce and Royce fall more into the epistemic camp, while Dewey and James fall into the therapeutic camp. As Royce and Dewey focused more on social ethics, Trotter spends more time investigating their views on ethical expertise. Royce...bases his account of the moral life on the struggle of the individual to cultivate a coherent and satisfying life plan, which requires becoming conscious of one s will and turning outward, to one s community, for help in the formulation of the plan. Here, of course, is space for an ethical expert, but his authority extends only to fellow loyalists within a particular moral community (p. 110). That is, an ethical expert can help someone in a particular, committed community to formulate a life plan, but cannot offer the same expertise to someone outside that community. John Dewey, on the other hand, had a more therapeutic view of expertise. He argued for a certain kind of life, and thought that political life and political leaders ought to be organized towards that end: Like contemporary perfectionists..., Dewey thinks that states are obligated to discern and articulate the characteristics of good living, and then to encourage good lives through legislation (p. 114). A Deweyan ethical expert would advise both legislators and individuals about the good life. Trotter concludes by giving reasons to prefer Royce s version of ethical expertise to Dewey s reasons that certainly apply to bioethics today. 3. CONTEMPORARY PERSPECTIVES Mary Ann Cutter s paper, Expert Moral Choice in Medicine: A Study of Uncertainty and Locality begins the section of the volume focused on contemporary examinations of ethical expertise. She argues that moral knowledge is localized, so the ethics expert (especially in bioethics) will need to be able to