Abstract
This chapter is divided into two parts. In the first part, I explain the foundational differences between A Theory of Justice and Political Liberalism, despite the fact that Rawls maintains the Two Principles of Justice in both works. Moreover, I expound why, in view of the fact that reasonable people would subscribe to different comprehensive religious, philosophical, and moral doctrines, Rawls needs a new foundation for social stability in a constitutional liberal democracy. I explain the connection between Rawls’ ideas of overlapping consensus, political conception, and public reason. Moreover, I explain Rawls’ idea of “duty of civility” and the condition under which a controversial issue can be legitimately resolved by way of voting. Further, instead of pursuing Rawls’ idea that bioethical issues could be resolved by way of “reasonable balancing” of “political values,” I turn to T. M. Scanlon’s contractualist approach, which is congenial to Rawlsian political liberalism and can resolve moral, political, and bioethical issues. In the second part of this chapter, I try to resolve the problem of medical assistance in dying (“MAID”) by using Thomson’s/Scanlon’s idea that permissibility is not affected by intention. I deal with the Slippery Slope Arguments, the argument from abuse, and the argument from pressure on elderly patients who might feel obligated to die. Finally, I argue that Scanlonian contractualism is preferable to utilitarianism, and that contractualism can defuse the problem from pressure which has plagued utilitarianism.
I am grateful to Tom Nagel for a discussion on some of the issues raised in Part A of this chapter on May 28, 2019. I am indebted to Tim Scanlon for showing me his unpublished paper, “Some Main Points in Rawls’ Theory of Justice ,” and for discussing some issues via emails. I am grateful to Bonnie Steinbock and John G. Bennett for particularly helpful comments on an earlier version of Part (B). I thank Alexandre Erler, Peter Chau, Michael Campbell, and Win-chiat Lee for commenting on earlier drafts. I thank Carolyn P. Neuhaus for discussion, and the Hastings Center for hosting me in May 2019, as well as the CUHK Centre for Bioethics for making this trip to Hastings possible. A version of this chapter was presented as the Featured Speech at a philosophy conference hosted by the National Taiwan University on December 15, 2020.
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Notes
- 1.
John Rawls limited the scope of public reason to “constitutional essentials and matters of basic justice” in Political Liberalism , but he clarifies in Justice as Fairness: A Restatement (“Restatement”) that issues that “border” on a constitutional essential and are political divisive ought to be covered. See Restatement, 41, 117.
- 2.
See Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs, vol.16, no. 3 (Summer, 1987): 215–240, and also in Equality and Partiality, 163, n49.
- 3.
Persons are free when they have realized their capacity for a sense of justice and for a conception of the good, and have the powers of reason. When they have these powers to the requisite minimum degree as fully cooperating members of society, they are equal (Political Liberalism 19). Free and equal citizens in a liberal constitutional democracy, Rawls says, have an enduring desire to honor fair terms of cooperation.
- 4.
The original position is a hypothetical construct in which representatives from different social classes are placed behind a “veil of ignorance” and therefore are ignorant of their own attributes, including their genders, their natural endowments, religious beliefs, whether they are rich or poor, as well as their conceptions of the good and particular information about their society. Rawls argues that because everyone is deprived of such information, they being rational and self-interested would choose the two principles of justice.
- 5.
Burton Dreben, “On Rawls and Political Liberalism,” in Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge University Press, 2006), 317.
- 6.
As I said above, Rawls holds that consensus cannot be obtained among rational and reasonable people because of the “burdens of judgment.” Moreover, he holds that even if everyone in society agreed to the same comprehensive doctrine, the use of political power is necessary to maintain stability.
- 7.
See Burton Dreben, “On Rawls and Political Liberalism,” The Cambridge Companion to Rawls, 322.
- 8.
See John Rawls, Restatement, 191–192; T. M. Scanlon, “Some Main Points in Rawls’ Theory of Justice”: https://www.academia.edu/44023083/Some_Main_Points_in_Rawls_Theory_of_Justice_1.
- 9.
T. M. Scanlon makes this point in his paper, “Some Main Points in Rawls’ Theory of Justice.” He also points out that the problem of stability (for the right reasons) is, for Rawls, a normative issue.
- 10.
Rawls points out that a comprehensive doctrine is either fully or partially comprehensive: “A doctrine is fully comprehensive when it covers all recognized values and virtues within one rather precisely articulated scheme of thought; whereas a doctrine is only partially comprehensive when it comprises certain (but not all) nonpolitical values and virtues and is rather loosely articulated. Note that, by definition, for a conception to be even partially comprehensive, it must extend beyond the political and include nonpolitical values and virtues” (PL 175).
- 11.
See Burton Dreben, “On Rawls and Political Liberalism, 332, 345. Burton says that justice-as-fairness in Theory depends on a comprehensive doctrine of autonomy (345). Moreover, Paul Weithman points out that Rawls was dissatisfied with his “congruence argument” (presented in Part III of Theory), which relies on a Kantian comprehensive doctrine. See Paul Weithman, Why Political Liberalism? On John Rawls’s Political Turn (Oxford: Oxford University Press, 2010), Chap. VIII.
- 12.
The Difference Principle says that “social and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (Theory, 83).
- 13.
As to what Rawls means by “free” and “equal,” see note 3 above.
- 14.
Page references falling within 131–180 of The Law of Peoples refer to “The Idea of Public Reason Revisited.”
- 15.
Rawls has not offered us an exhaustive list of political values, but they include (related to the family) the equality of children as future citizens, the value of the family in securing the orderly production, and reproduction of society and of its culture from one generation to the next (PL 163–164); the values of equal political and civil liberty; fair equality of opportunity; the values of economic reciprocity; the social bases of mutual respect between citizen (PL 139); examples of political values those in the preamble of the United States Constitution, namely, a more perfect union, justice, domestic tranquility, a common defense, the general welfare, and the blessings of liberty for ourselves and our posterity (LP 144); political values, such as equal basic liberties, equality of opportunity, ideals concerning the distribution of income and taxation, as well as efficiency and effectively (LP 144); political values related to animals and nature are the good of preserving the natural order; to foster species of animals and plants for the sake of biological and medical knowledge; to protect the beauties of nature for purposes of public recreation and the pleasures of a deeper understanding of the world (PL 245). Finally, liberty of conscience (LP 151), freedom of association (LP 158), and the freedom of religion (LP 163), including the freedom to affirm no religion (LP 145) are political values. (This list is not a complete one.) The “transcendent values” of salvation and eternal life—the Visio Dei—are, however, not political values. See Chap. 7 for further discussion.
- 16.
Constitutional essentials include (a) “fundamental principles that specify the general structure of government and the political process: the powers of the legislature, executive and the judiciary; the scope of the majority rule” and (b) “equal basic rights and liberties of citizenship that legislative majority are to respect: such as the right to vote and to participate in politics, liberty of conscience, freedom of thought and association, as well as the protections of the rule of law” (PL 227), or “questions about what political rights and liberties, say, may reasonably be included in a written constitution, when assuming the constitution may be interpreted by a supreme court, or some similar body” (PL 442, n.7).
- 17.
Matters of basic justice include “principles regulating basic matters of distributive justice, such as freedom of movement [including free choice of occupation] and equality of opportunity, social and economic inequality, and the social bases of self-respect” (PL 228).
- 18.
See Note 1.
- 19.
McCarthy, Michael; Mary Homan; Michael Rozier, “There’s No Harm in Talking: Re-establishing the Relationship between Theological and Secular Bioethics,” The American Journal of Bioethics, 20 (2020): 12, 5–13, DOI: 10.1080/15265161.2020.1832611.
- 20.
See Hon-Lam Li, “Public Reason as The Way for Dialogue,” The American Journal of Bioethics, 20 (2020): 12, 29–31, DOI: 10.1080/15265161.2020.1832618.
- 21.
Dworkin et al. “Assisted Suicide: Philosophers’ Brief,” New York Review of Books, March 27, 1997.
- 22.
Rawls has relaxed this from justice-as-fairness to a family of liberalisms. Why? Although he still talks about the two principles of justice arrived at in the original position, reasoning behind the veil of ignorance has been replaced in PL by the principle of reciprocity and the public political culture (from which to arrive at a political conception of justice which people espoused to reasonable comprehensive doctrines would endorse). But the content of political conception of justice has to be less specific than the two principles of justice, since this depends on the public political culture. It is surely easier to argue for a family of liberalisms.
- 23.
The idea is that the poor will not accept extreme inequality that is allowed by libertarianism, and hence that the rich cannot believe in good faith that the poor can reasonably accept their terms of cooperation.
- 24.
Rawls believes that utilitarianism has other problems, and that a society grounded in utilitarianism would be unstable (without oppression). See Restatement, 126–130, 110, 115.
- 25.
I shall discuss more of this below.
- 26.
These include judges (particularly judges in appellant and supreme courts), and also legislators, chief executives, and other government officials, as well as candidates seeking public office.
- 27.
Aristotle considers these forms of life in Nichomachean Ethics, and concludes that a life of pure contemplation is the best form of life, whereas the life spent in seeking pleasure is the worst. Aristotle’s argument is unlikely to persuade one who is not already inclined toward leading a life of pure contemplation.
- 28.
Dreben explains that when Rawls uses the words “political conception of justice,” Rawls means liberal political conception of justice .
- 29.
Judith Thomson, “Abortion,” Boston Review, Summer 1995.
- 30.
The most important works where Nagel discusses the clash of the subjective and the objective are “What is it like to be a bat?” and “Subjective and Objective,” both in his Mortal Questions (New York: Cambridge University Press, 1979) as well as in The View from Nowhere (Oxford: Oxford University Press, 1986) and Equality and Partiality (Oxford: Oxford University Press, 1995).
- 31.
I think that one of Rawls’ central points can also be couched in terms of the clash between the subjective and the objective. Specifically, I have in mind Rawls’ ideas of the comprehensive doctrines (which are in the Nagelian sense subjective) and the political conception of justice reached via an overlapping consensus (which is objective or “impersonal”). Rawls holds that with respect to fundamental questions about constitutional essentials and matters of basic justice, “the political values expressed by its principles and ideals normally have sufficient weight to override all other values that may come in conflict with them” (PL 138).
- 32.
Nagel’s view is that qualia (e.g., our taste of chocolate, sight of a red rose, or hearing of Beethoven’s Fifth Symphony) is subjective but real, and this example serves as a counterexample to the idea that all knowledge is objective. See his “What Is It Like to Be a Bat” in his Mortal Questions, and his The View from Nowhere, chap. 2.
- 33.
I would like to think that my arguments on animal research and quasi-vegetarianism are grounded on reasons or reasonable arguments. See “Animal research, Non-vegetarianism, and the Moral Status of Animals—Understanding the Impasse of the Animal Rights Problem,” Journal of Medicine and Philosophy, vol. 27, No. 5 (2002), 589–615; “Toward Quasi-vegetarianism,” in Hon-Lam Li and Anthony Yeung, eds., New Essays in Applied Ethics (UK: Palgrave Macmillan, 2007), 64–90.
- 34.
Joseph Raz, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy & Public Affairs19, no. 1 (Winter, 1990): 3–46.
- 35.
Nagel actually refers to nuclear disarmament and capital punishment, not slavery. In personal conversation, Nagel said that his argument does not cover the case of slavery, which (unlike abortion, killing animals for food, and sexual ethics) is a public issue.
- 36.
Such issues include abortion, killing animals for food, sexual ethics, MAID, capital punishment, issues in reproductive technology, and just distribution of healthcare.
- 37.
For reasons to be explained, I think that Rawls’ approach is more defensible.
- 38.
- 39.
The classic paper is A. Williams, “Intergenerational Equity: An Exploration of the ‘Fair Innings’ Argument,” Health Economics 6, no. 2 (Mar-Apr 1997): 117–132. According to this argument, a younger person should be favored on grounds of fairness.
- 40.
After I wrote this, it has come to my attention that Steven Wall makes an analogous point in his “Is Public Justification Self-defeating?” American Philosophical Quarterly 39, no. 4 (October 2002): 385–394. Moreover, I have discussed consent—both hypothetical and actual— in “Contractualism and Punishment,” Criminal Justice Ethics 34, no. 2 (2015), esp. 184–188, DOI: 10.1080/0731129X.2015.1067959
- 41.
Thomas Nagel, “Rawls and Liberalism,” in Cambridge Companion to Rawls, 76.
- 42.
“Assisted Suicide: The Philosophers’ Brief (March 27, 1997),” The New York Review of Books. Henceforth, “Dworkin et al. 1997.”
- 43.
Scanlon’s contractualism is articulated and summarized in Hon-Lam Li, “Contractualism and the Death Penalty,” Criminal Justice Ethics 36, no. 2 (2017), 152–182, DOI: 10.1080/0731129X.2017.1358912. I have employed contractualist reasoning in this article as well as in the following articles: Hon-Lam Li, “Contractualism and Punishment,” Criminal Justice Ethics 34, no. 2 (2015), 177–209, DOI: 10.1080/0731129X.2015.1067959; Hon-Lam Li, Nancy S. Jecker & Roger Yat-Nork Chung, “Reopening Economies during the COVID-19 Pandemic: Reasoning about Value Tradeoffs,” The American Journal of Bioethics 20, no. 7 (2020), 136–138, DOI: 10.1080/15265161.2020.1779406; Hon-Lam Li, “What We Owe to Terminally Ill Patients: The Option of Physician-Assisted Suicide,” Asian Bioethics Review 8, no. 3 (September 2016), 224–243.
- 44.
Scanlon thinks that his contractualism could be used to social and political issues, such as criminal punishment and sentencing.
- 45.
Rawls refers to the principle of criterion first in A Theory of Justice (1971), but this principle plays a considerably more important role in Political Liberalism (1993) and “The Idea of Public Reason Revisited” (1997) included in The Law of Peoples (1999).
- 46.
See T. M. Scanlon, “Contractualism and Utilitarianism,” in Moral Discourse and Practice, ed. Stephen Darwall, et al., (Oxford University Press, 1997), 279–282, esp. 282.
- 47.
As Scanlon explains in WWO, a personal reason is a reason that concerns our claims in the broad sense. That is, if we are harmed or benefited by a principle, we have a personal reason to reject or favor it, but fairness also counts as a personal reason.
- 48.
Scanlon holds that a principle is a conclusion of a process of normative reasoning, and that there are an indefinite number of principles.
- 49.
See Zhuoyao Li, “The public conception of morality in John Rawls’ political liberalism,” Ethics and Global Politics. 9, no. 1 (2016), DOI: https://doi.org/10.3402/egp.v9.28679. However, according to Samuel Freeman, Rawls believes his comprehensive doctrines in Theory to be true. See Samuel Freeman, Rawls, 355–359.
- 50.
In a grant application submitted to Research Grants Council (Hong Kong) in October 2015, I already argued that there are important similarities between Rawls’ theory in PL and Scanlon’s contractualism, and that Scanlon’s contractualist theory can be used to flesh out Rawls’ idea of public reason. This happened before Zhuoyao Li’s paper was published.
- 51.
See T. M. Scanlon, Being Realistic about Reasons, 2013, esp. chaps. 1 and 2. On Scanlon’s view, a reason is just a consideration in favor of (or against) doing something (or omitting to do it). R is a reason for doing X if and only if there is a consideration in favor of doing X under the circumstances (WWO, 17–19). R may be a reason for doing X under circumstances C1, but may not be a reason for doing X under circumstances C2. Thus, Scanlon subscribes to moral contextualism, the plausible view that whether R is a reason for doing X depends on the context.
- 52.
Although I do not believe that Rawls’ idea of balancing various values is usually helpful, the current case in favor of allowing MAID is so obvious that, even without an argument, such balancing should point to an obvious conclusion. But I shall provide an argument in the next section of this chapter.
- 53.
This is a revised version of my argument in “What We Owe to Terminally Ill Patients—the Option of Physician-Assisted Suicide,” in Asian Bioethics Review 8, no. 3 (September 2016): 225–230.
- 54.
The term “passive euthanasia” is used mostly by philosophers. When physicians use the term “euthanasia,” they mean what philosophers refer to as “active euthanasia.” Physicians generally avoid the term “passive euthanasia” and prefer refusal, withdrawal, and foreseeable death, and so on.
- 55.
See Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990).
- 56.
F.M. Kamm makes this point in her “Four-Step Arguments for Physician-Assisted Suicide and Euthanasia,” in her Bioethical Prescriptions.
- 57.
See John Finnis, “A Philosophical Case against Euthanasia,” in Euthanasia Re-examined, ed. J. Keown, (Cambridge, UK: Cambridge University Press, 1997): 23–35. It is more correct to describe a physician who performs active euthanasia as intending her patient to die, than one who assists in suicide, because in most cases of MAID, patients who obtain lethal medication choose not to take it (Ganzini 2000; Ganzini 2001).
- 58.
Most versions have a requirement that the good effect (which the agent intends) be proportionately good enough compared with the bad effect (which he does not intend).
- 59.
See Judith Thomson, “Self-defense” and T. M. Scanlon, Moral Dimensions, chaps. 1–2.
- 60.
As Scanlon holds, the physician (who is the enemy of the patient) should, given his bad intention, himself regard his action as impermissible (Dimensions, 16). But it does not follow that his action is indeed impermissible. It only reveals a fault in him (Dimensions, 58).
- 61.
See Dimensions, chaps. 1–2.
- 62.
In other words, the case of murder is morally the worst, whereas the case of careless driving causing death is the least bad of the three cases.
- 63.
“It is not clear to me why people fail to take this seriously enough” (Judith Thomson, “Physician-Assisted Suicide: Two Arguments, Ethics 109, no. 3, (April 1999), 497–518 at 517). On her view, it is because they believe that if they do not accept DDE, then they must subscribe to utilitarianism. I think that her diagnosis is misplaced.
- 64.
After drafting this argument, I noticed that Judith Thomson also employs the same argument for MAID in Thomson, “Physician-Assisted Suicide,” op. cit., 514–518. However, as I tried to show, her case is less tenable than mine because of her (and Scanlon’s) failure to concede that intention may be relevant to the wrongfulness of an act itself.
- 65.
Letting Z happen passively could include either the case of foreseeing the death of some innocent person or the case of letting nature take its course.
- 66.
Consider these cases. Case 1: In the battlefield, soldier Ryan stepped on a mine. He was very badly hurt and will certainly die. Ryan begged comrade Frank to kill him and thereby relieve him of the pain. Frank shot Ryan. Case 2: Same as Case 1, except that Ryan begged comrade George to relieve him of his pain by shooting, but George refused and chose to let Ryan die. Ryan was left on the battlefield and died 24 hours later. Clearly, it is crueler to let Ryan die.
- 67.
Ronald Dworkin et al., “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, 44 (27 March 1997): 41–47.
- 68.
Ibid.
- 69.
Ibid.
- 70.
Div. of Medical Ethics (University of South Florida College of Med.). 2001. “Physician-Assisted Suicide: The Legal Slippery Slope,” Cancer Control 8 (1).
- 71.
See M. Battin, “Euthanasia: The Way We Do It, the Way They Do It: End-of-Life Practices in the Developed World,” Journal of Pain and Symptom Management 65, no. 5 (1991): 298–305.
- 72.
S. W. Smith, “Evidence for the Practical Slippery Slope in the Debate of Physician-Assisted Suicide and Euthanasia,” Medical Law Review 13, no. 1 (Spring 2005): 17–44.
- 73.
L. Ganzini, “Oregon Physicians’ Attitudes about and Experiences with End-of-Life Care since Passage of the Oregon Death with Dignity Act,” JAMA 285, no. 18 (2001):2363–2369.
- 74.
Ronald Dworkin, op. cit.
- 75.
See J. D. Arrars, “Physician-Assisted Suicide: A Tragic View,” Journal of Contemporary Health Law and Policy 13, no. 2 (1997): 361–389; E. J. Emmanuel, “What is the Great Benefit of Legalizing Euthanasia or Physician-Assisted Suicide?” Ethics 109, no. 3 (April 1999): 629–642, henceforth “Great Benefit;” Bonnie Steinbock, “The Case for Physician Assisted Suicide: Not (Yet) Proven,” Journal of Medical Ethics 31 (2005): 235–241.
- 76.
See E. J. Emmanuel, “Great Benefit.”
- 77.
Ronald Dworkin, “Assisted Suicide.”
- 78.
E. J. Emmanuel, “Great Benefit.”
- 79.
L. Ganzini, et al., “Physicians’ Experiences with the Oregon Death with Dignity Act,” New England Journal of Medicine 342 (2000): 562.
- 80.
Ibid., 563.
- 81.
See both ibid. (2000) and L. Ganzini (2001), “Oregon Physicians’ Attitudes about Experiences with End-of-Life Care since Passage of the Oregon Death with Dignity Act,” JAMA, 285 (18): 2363–2369.
- 82.
I agree with Kamm that some patients experiencing unbearable pain should be allowed to receive MAID, even if one’s illness is not terminal. See F. M. Kamm, Bioethical Prescriptions (New York: Oxford University Press, 2013).
- 83.
L. Ganzini, et al., “Physicians’ Experience with the Oregon Death with Dignity Act,” New England Journal of Medicine (2000), 342: 557–563.
- 84.
According to Samuel Freeman, “traditional utilitarianism is unreasonable as a political conception since it rejects the equality and priority of basic liberties” (Rawls, 396).
- 85.
Rawls holds that moral autonomy is not a political value (but is a doctrine), but political autonomy is a political value.
- 86.
Scanlon points out that the plausibility of normative utilitarianism is grounded in philosophical utilitarianism, the metaethical idea that the subject matter of morality is nothing but individual well-being. See his “Contractualism and Utilitarianism.”
- 87.
I thank Tom Nagel for supplying this example in support of my contention that political utilitarianism can be a political conception because it need not rely on any comprehensive doctrine. I am aware that Rawls would hold that utilitarianism cannot be public reason because utilitarianism could justify slavery or some very unequal socio-economic system that maximizes collective utility. See, for instance, LP 50, 65, 79, 174.
- 88.
To be sure, Rawls argues that utilitarianism is excluded by the criterion of reciprocity (LP 40). But his argument seems to me too brief, or else the criterion seems too heavy-duty.
- 89.
Emmanuel, “Great Benefit.”
- 90.
Ibid., 640.
- 91.
Emmanuel argues that the number of patients who would benefit from MAID is small, as if the numbers were all that matter.
- 92.
Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy & Public Affairs 16, no. 3 (1987): 215–240 at 237.
- 93.
T. M. Scanlon, “Some Main Points in Rawls’ Theory of Justice.”
- 94.
The case of the Bellows is a classic case of public reason clashing with nonpublic reason. The Bellows are members of Church of the First Born and practice faith-healing religiously. They believe that God will listen to their prayer. Given their religious belief, they have a nonpublic, religious reason to practice faith-healing. In other words, they have such a reason for not treating their sick children with modern medicine (and likewise when they themselves have fallen ill). Yet the state of Oregon has a public reason for demanding that parents take their sick children to receive medical treatment, namely, to avoid the preventable deaths that might otherwise result. According to The Oregonian (May 15, 2011), Oregon is the longtime home of the Followers of Christ church, a sect based in Oregon City whose members believe in treating sickness with prayer and oil rather than medicine. Getting glasses or dental care is sometimes considered acceptable. Seeking medical help for yourself or your sick child is not. This helps explain the church’s high child mortality rate, its long history of children dying from treatable conditions, and the rows of children’ headstones in the church cemetery.
- 95.
In “Engelhardt on the Family” (2013), International Journal of Chinese and Comparative Philosophy of Medicine, 153–160, I argue that the Conservatives who put forward their view on the family are in effect imposing their taste to those who are homosexuals and lesbians, as well as those who do not want to get married and those who want to get married but do not want to have children.
- 96.
As pointed out above, even if there is no consensus after discussion in terms of public reason, the majority’s view in the legislature (whose members are elected into their offices) will be legitimate.
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Li, HL. (2021). Rawlsian Political Liberalism, Public Reason, and Bioethics. In: Li, HL., Campbell, M. (eds) Public Reason and Bioethics. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-61170-5_1
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