Abstract
In this chapter, I consider the prospects for deploying the concept of public reason in settling practical bioethical questions, focusing in particular on entitlements to healthcare. I begin by tracing the origins of the concept of public reason to the aspirations of the liberal political theorist to find a justification for the authority of government, which reconciles a basic belief in the autonomy of the individual with the legitimacy of the coercive institutions that create and govern the public sphere. I then consider how the concept of public reason may be used in order to justify a universal entitlement to healthcare, paying particular attention to the work of Norman Daniels. Finally, I briefly consider the objection that an entitlement to healthcare grounded on such terms is insufficiently robust, because it downplays the values that healthcare encodes. I conclude by reflecting on whether the concept of public reason can be stretched to include a more robust conception of the value of health.
I would like to thank Alastair Campbell, Nancy Jecker, and in particular Hon-Lam Li for helpful comments on previous versions of this chapter. I would also like to thank the participants at the Public Reason and Bioethics seminars held at the Chinese University of Hong Kong for helpful discussions of these issues.
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Notes
- 1.
“Coronavirus: WHO defends coronavirus outbreak response” https://www.bbc.com/news/world-52506844 accessed on 17/11/2020.
- 2.
In this chapter, single quotation marks do not indicate direct quotations but rather words being mentioned or being held at some slight distance. Double quotation marks indicate a direct quotation.
- 3.
The literature on liberalism is vast. Alongside the work of John Rawls, important modern texts include: Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000); Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press,1986); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Amartya Sen, The Idea of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2009); and Michael Walzer, Spheres of Justice (NY: Basic Books, 1983).
- 4.
The former tendency is reflected in appeals to individual rights and liberties and the supposedly ennobling union of these in the collected ‘will of the people’ as expressed in legitimate government; the latter reflected in appeal to sovereign power and of a single individual as standing above the law and wielding its disciplining apparatus through displays of force. Contrast Obama’s rhetoric with the infamous “torture memos” of John Yoo. See Jack Goldsmith, The Terror Presidency: Law and Judgement Inside the Bush Administration (New York City, New York: W. W. Norton 2007).
- 5.
See, e.g., Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009) and Martha Nussbaum Frontiers of Justice (Cambridge, MA: Harvard University Press, 2006). For a critique of an attempt to found norms of global justice on a narrow Hobbesian conception of reciprocal self-interest, see Michael Campbell “Global Greed and Prudence: Reply to Alvarez”, Asian Bioethics Review 6, no. 1 (2014): 83–95.
- 6.
On this picture, laws function to shape the deliberative space within which individuals operate, providing disincentives for certain courses of action (i.e., punishments for law-breaking). One can reasonably choose to break the law so long as one is willing and able to face the appropriate punishment; the law is then arranged in such a way as to make the costs of the punishments generally outweigh the expected benefits of the transgression. In this way, the law can enter into deliberation as a consideration to be weighed against others, and need not be seen as a threatening, antagonistic, or dangerous force. However, a calculation as to whether or not to obey a given law must include the fact that punishment is not merely a material cost (time, money, opportunity, etc.) but a social one as well. Since laws are an expression of social consensus, breaking the law jeopardizes one’s standing with respect to society.
- 7.
See for instance a liberal justification of punishment, according to which punishment serves to educate and rehabilitate criminals, as well as to declare our shared commitment to the laws which govern our interactions with each other. On this view, it is unreasonable to object to a punishment handed down by the court system within a legitimate state absent special conditions. Such conditions may include (1) a mistake within the justice system (e.g., wrongful conviction), (2) an unjust or otherwise corrupted justice system (e.g., rightful conviction according to an unjust law), or (3) that one was not suitably related to the legal system under which one is now being punished (e.g., being punished for acts committed while outside of the country’s legitimate sphere of influence).
- 8.
For the canonical formulation of this point, see J.R. Milton & Philip Milton (Eds), John Locke: An Essay Concerning Toleration (Oxford: Oxford University Press, 2009).
- 9.
This is where liberalism differs from individualist anarchism according to which political authority is never justified, since the ultimate legitimacy of any command lies in the free choice of the individual; see Robert Paul Wolff, In Defense of Anarchism (Berkeley, CA: University of California Press, 1970).
- 10.
For an influential game-theoretic account of these coordination problems see David Gauthier, Morals By Agreement (Oxford: Oxford University Press 1986).
- 11.
The caveat ‘set of orderings’ is necessary because even a theorist who believes that political structures should be instrumental for the realization of lives of a certain kind may accept that there is a tolerable degree of variance within a human population concerning the rankings of such goods. Even strict natural law theologians accept that certain groups (e.g., monks) may justifiably live ways of life which are at odds with certain canons of the ethical theory which underlies the political institutions. Such diverges would be unjustifiable if generally adopted, but can be justified in particular cases through special pleading borne out in the terms of the theory as a whole.
- 12.
On the question of whether we ought to be skeptics about the ordering of goods, or simply adopt an attitude of epistemic humility toward this question, see Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16:2 (1987); Charles Larmore, “Pluralism and Reasonable Disagreement,” Social Philosophy and Policy 11:1 (1994); and Rawls’ discussion of the “burdens of judgement” in Political Liberalism (henceforth “PL”), (New York City, NY: Columbia University Press, 1993), p. 487.
- 13.
See J.S. Mill, On Liberty, vol.18 of J. M. Robson (ed.), Collected Works of JS Mill (Toronto, University of Toronto Press, 1977), pp. 260–267.
- 14.
See Hobbes’ description of the goods which the social contract enables; Michael Oakeshott (ed.), Thomas Hobbes: Leviathan (Oxford: Blackwell, 1948 [1651]) ch. XIII; See also Judith Shklar, “The Liberalism of Fear,” in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Harvard, MA: Harvard University Press, 1991).
- 15.
Plato believed that once a society takes its goals anything beyond the provision of the bare necessities of life, that strife and war become inevitable. The point is well taken, even if Plato’s own list of luxuries (furniture, perfumed oils, incense, pastries, and prostitution) seems idiosyncratic. See Republic, 372e–373a.
- 16.
Richard Tuck and Michael Silverthorne (Eds), Thomas Hobbes: On the Citizen (Cambridge: Cambridge University Press, 1998 [1642]) p. 102.
- 17.
PL, p.197.
- 18.
Of course, such a heuristic is made problematic by a number of factors, including that the technological progress which comes at the expense of certain natural resources also changes the kinds of conditions under which we can live; nuclear energy would not have been possible without burning fossil fuels, but its invention has enabled us to generate energy in degrees hitherto impossible.
- 19.
One such attempt is encapsulated in Nussbaum’s list of capabilities; see Martha Nussbaum, Creating Capabilities (Cambridge, MA: Harvard University Press, 2011a), and discussion in Nancy Jecker’s contribution to this volume.
- 20.
For a discussion on issues surrounding this see Michael Otsuka, Libertarianism Without Inequality (Oxford: Oxford University Press, 2003).
- 21.
See Jonathan Quong, “On the Idea of Public Reason,” in The Blackwell Companion to Rawls, ed. J. Mandle and D. Reidy (Oxford: Wiley-Blackwell, 2013), pp. 265–280. From this starting point debates then proliferate, with arguments over such matters as how we are to draw the boundaries of our ‘common life’, how broadly we should understand these ‘moral or political’ rules, and what we are to take ‘justifiability’ or ‘acceptability’ to the governed to require. For a broader interpretation of the principle, see Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011). For a narrower account see Jonathan Quong, Liberalism Without Perfection (Oxford: Oxford University Press, 2011).
- 22.
Needless to say, beyond this minimal formulation, the concept remains hotly contested—and the contributions in this volume are a testament to the degree to which PR remains as controversial as the (apparently) ‘first order’ issues such as medically assisted suicide which it is invoked to solve. This shows, I believe, the fragility of the distinction between first order and second order issues when it comes to matters of ethics and politics. When issues of fundamental importance to a way of life are at stake, then disagreements over matters of immediate choice almost invariably spiral into debates over metaphysics, metaethics, meta-metaphysics, and so on. Different ethical convictions may even underwrite different conceptions of the nature of reason itself. For instance, someone who sees reason as a faculty designed for the articulation of insights gleaned through faith will approach practical questions differently from someone who sees it as sui generis and not beholden to any standards or supposed insights beyond itself.
- 23.
Importantly, these structures include regulative principles which govern the way that the society evolves over time, through standards of democratic accountability and for measuring progress.
- 24.
PL, p. 447.
- 25.
The fact that each person is entitled to both physical security and respect while in government offices is something which we may take for granted, but it is a fragile achievement. The murder of Jamal Khashoggi in the Saudi consulate in Istanbul in 2018 provoked an international uproar in part because it struck at basic tenets of the rule of law upon which the global order is based, including the security of persons within government buildings. See “Inquiry into the Killing of Mr. Jamal Kashoggi.” https://www.ohchr.org/EN/Issues/Executions/Pages/Inquiry.aspx accessed 17/11/2020.
- 26.
Another advantage is that equality of opportunity may be less demanding than equality of goods themselves, insofar as it permits inequality in outcome; we can tolerate unequal access to a given good so long as everyone had the same chance to enjoy the good in question at a relevant time. I set this aside in what follows but for discussion see G.A. Cohen, “On the currency of egalitarian justice” Ethics 99, no. 4 (1989): 906–944.
- 27.
See A.H. Maslow “A theory of human motivation” Psychological Review 50, 4 (1943): 370–96.
- 28.
An aside: Any discussion of opportunity ranges needs to take into account the fact that such ranges are both dynamic (changing over time) and nested (such that taking or failing to take a certain opportunity will change the opportunities open to one). A theory which is interested in equality of opportunity must look not only at the range of alternatives open to a person on a given occasion, but also such factors as what the ramifications of a certain decision are for the rest of the person’s opportunities; how easy is it to correct a mistake, for instance. Thus, although giving people more opportunities to gamble may increase the range of options open to them on a given instance, it may actually harm their opportunity range overall. These and related cases fall within the rubric of what may be called ‘coercive options’—cases where giving people more options can actually be harmful rather than beneficial. Consideration of such cases is crucial for a proper understanding of the relations between choice, freedom, and well-being. In general, people need to be given not only the opportunities to succeed, but also the support and security to be able to take chances, fail, and start again. This makes matters considerably more complex than is often presumed in appeals to equality of opportunity which do not consider what it is like to make decisions under conditions of extreme precariousness.
- 29.
Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge University Press, 2007), p. 21, henceforth “JH.”
- 30.
PL, 446. The reference in this formulation to ‘social position’ suggests also that we have to adopt a critical attitude toward positional goods, such as the “offices and positions of authority and responsibility” which Rawls mentions as basic entitlements; see John Rawls, Justice as Fairness: A Restatement (Harvard, MA: Harvard University Press, 2001), p. 58. but that is a matter for another day.
- 31.
In particular, indeterminacy arises with the weighting of opportunities; e.g. how are we to value the opportunity to own a sports car?
- 32.
In the context of the case of Medical Assistance In Dying (MAID), this comes down to the question: does the entitlement to MAID stem from the right of the individual to have control over when and how they exit the world (and so the social contract), or does it stem from the demand that we provide individuals with access to the means necessary to address unbearable and avoidable suffering, when it is in our power to do so? If the answer is both, the question then remains as to how these two considerations are related to one another.
- 33.
Peter Singer, “Famine, affluence, and morality” Philosophy and Public Affairs 1, no. 3 (1972): 229–243.
- 34.
See Cora Diamond, “The Importance of Being Human”, Royal Institute of Philosophy Supplement 29 (1991): 35–62.
- 35.
See Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice (Abingdon: Routledge, 1999).
- 36.
See Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford: Oxford University Press, 1985).
- 37.
Bernard Williams, “The Idea of Equality” in his Moral Luck: Philosophical Papers 1973–1980 (Cambridge: Cambridge University Press, 1981).
- 38.
Robert Nozick, Anarchy, State, and Utopia (NY: Basic Books, 1974), ch. 7.
- 39.
See in this context the monthly ‘clap for carers’ which became an impromptu British tradition during the first wave of the coronavirus pandemic. See “Coronavirus: Health workers clapped across the world for battling on the COVID-19 frontline.” https://www.euronews.com/2020/03/24/coronavirus-health-workers-clapped-across-the-world-for-battling-on-the-covid-19-frontline Retrieved 17/11/2020.
- 40.
The importance of such trust is brought out most starkly in contexts where it has been eroded, for instance in contexts where doctors appear to be influenced by financial imperatives.
- 41.
See Susan Moller Okin, Justice, Gender and the Family (NY: Basic Books, 1991), ch. 5.
- 42.
Although I speak of ‘illness’ as the opposite of ‘health’, I am speaking loosely here and do not want to commit myself one way or another to the broader question of whether we should include disabilities under the rubric of ill-health. See JH, pp. 38–42.
- 43.
JH, p. 62; emphasis mine.
- 44.
On the concept of solidarity see Ruud ter Meulen, Solidarity and Justice in Health and Social Care (Cambridge: Cambridge University Press, 2017). However, we must at the same time acknowledge that such a division is not entirely unmotivated—it may correspond to the distinction between justice as the ideal form of society and solidarity as its animating force.
- 45.
See Susan Wolff, “Moral Saints”, Journal of Philosophy 79, no. 8 (1982): 419–439.
- 46.
Thus, as G.A. Cohen has demonstrated, there is within the Rawlsian system elements which push us toward a more robust picture of the role of collective enterprise in supporting individuals in their quest to live a flourishing, happy life. See G.A. Cohen, Rescuing Justice and Equality (Harvard: Harvard University Press, 2008).
- 47.
Though, as Hon Lam Li has pointed out to me, it remains debatable how far Rawls’ liberalism is individualistic, since Rawls views our natural talents as a common asset, and thinks of inequality as justified only insofar as it benefits the worst off. Despite this, however, there is still a role within liberal thought for an ineliminable value to the individual, which protects not only liberty of thought but also (more controversially) of conscience.
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Campbell, M. (2021). Public Reason and the Right to Healthcare. In: Li, HL., Campbell, M. (eds) Public Reason and Bioethics. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-61170-5_13
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