Medical Use of Human Beings

Respect as a Basis for Critique of Discourse, Law and Practice

Austen Garwood-Gowers

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317064893
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Whilst activities like transplantation and medical research have typically been considered on a discrete basis, they are also actually part of a broader phenomenon of medical means being employed to make use of human beings. This book is the first ever systematic critique of such medical use of the human being as a whole. It is divided into two parts. The first part considers what constitutes an appropriate normative lens through which to view such medical use and its constraint. It makes a reasoned ethical and human-rights-based case for preferring respect for human worth over any of the main alternative approaches that have been drawn on in specific contexts and outlines what this preference practically implies. The second part uses this respect-based lens to critique use discourse, law and practice. Drawing on three contrasting case study areas of warfare-related medical use, transplantation and human tissue research, this book exposes both the context-specific and thematic nature of shortfalls in respect.

Overall this book provides a compelling analysis of how medical use ought to be constrained and a compelling critique of the excesses of discourse, practice and governance. It is recommended to academics, students, policymakers and professionals whose work is focused on or intersects with the medical sector and anyone else with an interest in medicine and its limits.

Part I
The case for respect in the context of medical use of the human being

1 The ethical case for respect as a basis for constraint

1.1. Introduction

Respect is not just a principle or concept but also an attitude (Downie & Telfer, 1969) of unconditional positive regard for whoever and whatever possesses worth. However, for millennia there has been a contestation of whether worth is possessed by all aspects of reality and reality as a whole or is possessed only or more heavily by certain aspects of reality – such as human beings or only a subset of them who satisfy ‘qualifying’ criteria. In Western discourse what amount to tussles over this have often been played out through the discourses relating to personhood and dignity – with the application of the former being necessarily narrow and the latter often interpreted as being so but at least capable of being broader. Having critically explored how these terms have been used in Sections 1.2 and 1.3 of this chapter, I go on to make the case that worth applies broadly to all aspects of reality and reality as a whole in part four and in part five link this to my understanding of the nature and purpose of reality and key related streams of holistic thought.

The business end of this chapter is its sixth part where I work through the practical implications of this broader, holistically grounded, understanding of worth for constraint of medical use of the human being. I suggest that in order to protect rather than degrade human worth medical use must be:

• (1) productive in terms of the ends it pursues and
• (2) compatible with various norms in terms of the means by which it pursues them, specifically the four norms of
  • (a) protecting all members of the species as of equal inherent value;
  • (b) protecting human nature and form;
  • (c) protecting the species and its members from instrumentalization; and
  • (d) appropriately accounting for relevant non-absolute principles, such as autonomy and beneficence.

1.2. The concept of personhood and its relationship to worth

Palazzani posits that in Western culture at least, the word person suggests on a common sense level ‘a subject worthy of respect and protection’ (2008, 89). It is thus not surprising that the question of who is a person is met by a wide range of distinct answers both philosophically and legally. However, most of these answers can be categorized into whether they reflect what is known as ‘personalism,’ its diametric opposite ‘personism’ or a relational approach to personhood.

Personalism refers to those approaches which only describe and use such things as the characteristics, potentials and abilities of human beings to indicate the notion that human beings individually and as a species have inherent worth or value and evoke the importance of protecting that. It has especially been used in this fashion by philosophies influenced by Christianity and metaphysics (Palazzani, 2008, 89). Bioethius thus talked of rationalis naturae individua substantia (Liber de Persona et Duabus Naturis chapter 3) which Aquinas reformulated as individuo subsistens in rationali natura, meaning that the person is simply the individual substance of rational nature (Summa Theologiae I, q. 29, a. 3). As Palazzani points out ‘individual substance is the distinct subject which exists in itself, not inherent to anything else, or which belongs only to itself’ (2008, 95).

Personism refers to those approaches which run directly counter to personalism by treating personhood as particular to those within (and potentially also beyond) the species who meet whatever are deemed to be the qualifying criteria of the particular version of it being espoused. Over the course of history one finds many instances of wholly arbitrary factors such as colour, ethnicity, sex and social class being used as qualifying criteria and thereby to ground distinctions in quality of social and legal treatment. Whilst that is now widely decried, there are various other more subtle forms of discrimination that continue to be entertained in respectable discourse and sometimes even in the construction of law. In particular, a significant amount of discourse resorts to functionalism – which is essentially the idea that human beings can be valued relative to their possession of certain functional abilities. The most obvious manifestations of this are the fact that the dead and the not yet born are not treated as full persons in many jurisdictions – and are subject to differences in treatment that generally extend to treating them as mere means in the context of medical use. However, it also frequently takes the form of a much more broadly disenfranchising emphasis on agency. Downie and Telfer, for example, argue that to qualify as being a person one must have a rational will which they suggest entails having,

in the first place, the ability to choose for oneself, and, more extensively, to formulate purposes, plans and policies of one’s own. A second and closely connected element is the ability to carry out decisions, plans or policies without undue reliance on the help of others.

(1969, 20)

Variations on this theme include the requirement for: self-consciousness (Tooley, 1983; McMahon, 2002); self-consciousness and rationality (Buchanan, 2009, 324); being more specifically able to value one’s own existence (Harris, 1985); and being able to manifest intellectual activity, freedom, moral sense and self-determination (Engelhardt, 1996). Whilst most functionalist thinkers specify a threshold of capacities that must be met, the capacities in question tend to be obtained by degrees and one could therefore be a personist and protect rights relative to that. Alan Gewirth’s work, for example, fits into this category.

These approaches are invariably used to question whether even born living members of the human community should be classed as persons where they have significantly reduced capacities. However, one can argue that they are even more exclusive than this when taken to their logical conclusion. Measured against rationality or agency, for example, we are all non-persons not only prior to birth but for some time after it, at which point if we do not have severe impairment of our mental abilities we will qualify as persons but only up to the point of death or some other kind of prior permanent loss of mental capacity and arguably not during periods of temporary loss of our abilities such as due to illness, intoxication, unconsciousness and even sleep.

It may also be argued that, whilst judging between individuals is necessary in many contexts, in only a limited number of these will doing so principally or solely by reference to abilities be appropriate. In most, other factors will be at least as if not more important.

If, for example, one is choosing a friend wisely one ought perhaps to centre heavily on character traits (Vehmas, 1999, 114). Furthermore, whilst it may be necessary to judge between individuals in specific circumstances that does not make it necessary, relevant or even possible to judge between them in a more overall worth based sense. Indeed, to the contrary, it may be argued that with the very nature of our worth being inherent it is impossible to do so.

Functionalist approaches and personism as a whole can also be criticized for lack of ethical and political perspective. Expressing and building our humanity by communing with and showing compassion for ourselves and others is of principal importance for our survival, let alone ability to thrive as essentially spiritual beings. The intellectual and emotional process of categorizing our differences can be a useful one when contained in a framework of recognition of our common humanity. However, it is a dangerous process when used to promote inequalities in treatment. To see this one only needs to reference one of the more extreme manifestations of such promotion – namely eugenics which in certain forms has had at its core the ‘evaluative logic’ that ‘(s)ome human life was of more value – to the state, the nation, the race, future generations – than other human life’ (Bashford & Levine, 2010, 3–4). Capacity based approaches to personhood clearly cannot be viewed as a harmless backwater of academic and social discourse but reflect and can be reflected in real world shortfalls in the universality of protection of dignity and rights.

As already noted there is also a third broad type of approach to personhood which is to treat it as being relational in character. The basic premise posited for doing so is that the moral value or worth of humans ‘is not found in their individual capabilities or in their membership of the human species, but rather in their relationships’ (Foster & Herring, 2017, 35). Central to this approach is a recognition of the fact of human vulnerability and the importance of an ethics of care. Nonetheless, it is possible to have these without reducing our notion of ourselves to our relationships. The starting point for doing so that is advocated later in this chapter is to consider ourselves as being both distinct aspects of reality and fundamentally interconnected with other aspects of reality and reality as a whole. Our worth in this view cannot be reduced to the value of our relationships but stems from the simple fact that we are an aspect of reality. The nature and purpose of individual aspects of reality and of the whole is what provides clues as to how we might ideally live and as part of that shapes how we might handle medical use.

1.3. Dignity as a proxy for worth

The concept of dignity was first used in Western discourse in the ancient Graeco-Roman world. The word dignitas sums up the variant meanings that were given to it with respect to human beings. It means wholeness or nobility in Latin, but as Milbank notes (2013, 193), it also etymologically close to decus which as well as meaning ‘ornament’ means ‘honourable reward,’ decorum meaning socially acceptable ethical style and ultimately the Greek dokein meaning ‘to show,’ doxa meaning ‘shining manifestation’ and axia, meaning ‘fundamental worth’ or ‘first principle’ (hence the term ‘axiom’). Decus, decorum and even dokein reflect the emphasis placed on recognition and standing in the community. The standing of an individual might be influenced by factors particular to them such as their merit, inherited status, connections, ability to use patronage and ability to instil fear in others. However, it was also linked to the idea that human beings as a whole should be able to hold their heads up in the company of others and be properly acknowledged by them.

This civic dignity entailed, ‘having one’s claim recognized by others, having their respect, having some measure of control over one’s life, having a say in decisions and having responsibility for one’s choices’ (Ober, 2014, 53). At the state level a good example of it in action was the city-state of Athens following the Athenian Revolution of 508 bc. Through that revolution, the community had ‘took for itself, jointly and severally, the high standing once reserved for the few members of an elite of birth and wealth’ (Ober, 2014, 58). It was by no means a perfect democracy in as much as the liberties and protections afforded under it did not result in the abolition of slavery or wholly extend to women. However, its political and legal culture did bring and reflect an increased emphasis on liberty and equality, helping to maintain conditions in which citizens were able to go about their public and private business without threats to their sense of self and reputation (Demosthenes, 1990). These ideals embodied the notion that human beings as a whole have axia – a worth that may be described as fundamental and inherent or intrinsic. This was later explicitly advanced in the third century bc within the Stoic tradition and then in the first century bc via Cicero’s use of the term dignitas humana to describe what he saw as the special place of human beings in the universal order (Cicero, 1913, 6, 106).

Specific use of an inherent worth based account of dignity then became more prominent and explicit within Western formal thought in the Middle Ages. Medieval attempts to interpret human worth relied on biblical sources and works from antiquity along with their interpretations in Arabic and Jewish texts (Imbach, 2014, 64). The former centred on the notion that man was made in the Image of God (Genesis 1:26 and Wisdom 2:23) whilst the latter used the Aristotelian notion of human beings as rational, social and political animals. Many leading thinkers of the time understood the former in a way that accounted for the latter. For example, Hugo of Saint Victor (c.1096–1141) emphasized imago according to ratio (Da sacramentis I, 6, 2); Bernard of Clairvaux (1090–1153) argued that free will was the essential quality designating humans as being in the image of God (De gratia et libero arbitrio, IX, 28); and Dante Alighieri (1265–1321) later described it as the greatest gift of the divine goodness (Paradiso V, 19–24) being the basis for responsibility and morality (Purgatorio XVIII, 64–66). However, one can contend that it is not freedom to choose per se that makes human life special but the fact that we have a teleology that we can link its exercise to. I might, for example, have the freedom to get drunk every night, but I also have the freedom to get drunk less often or not at all – and the latter options might, at least in the long term, better fit the purpose for which I exist. One of the themes that has cropped up repeatedly over the course of known written human history is the idea that one might thereby help to cultivate a good life by the pursuit of knowledge. In theology this is often linked to one’s knowledge of God. For example, some early Christians such as St Augustine (354–430) saw pursuit of the former as the means to achieve the latter (Soliloquai II, 1, 1). This theme was taken up during the Middle Ages by Anselm of Canterbury (1033–1109, Monologian v. 66) and by Thomas Aquinas who suggested that the rational nature of human beings enabled them to imitate God through self-knowledge and self-love (Summa Theologiae I, q. 93, Art. 4) and provided them with a basis for their dignity (De veritate, q.25, Art. 6 ad 2).

The emphasis on rationality in such writings should generally not be taken to refer to the isolated use of discursive reason, which is analytic and reductionist in character, but the use of this in service of holistic and integrative reasoning which was known in ancient Greece as intellectus. According to this understanding the highest form of dignity, as later stressed by Giovanni Pico della Mirandola (1486) in his Oration on the Dignity of Man (trans Borghesis, 2012), consists of dedicating one’s life to what essentially amounts to a co-creative at-one-ness with God. This is ultimately a state of being rather than simply a state of thinking – indeed, seeing the world purely through the lens of discursive reason can actually detract from it. Following on from the Socratic tradition, many medieval thinkers emphasized the idea that reality is not fundamentally separated from oneself but rather something one can come to understand through reflection on what one is and what one is not. Some thinkers suggested that the fruits of such self-examination will be awareness of the nullity and misery of human life. For example, Lotario dei Conti di Segni, who became Pope Innocent III, contrasted the inherent worth of human beings derived from their divine nature with what he viewed as wretched actual condition. However, equally others such as William of St Thierry (1080/85–1148) and Hugo of Saint Victor (c.1110–1173) considered it to be like discovering a rich new world of depth and beauty. It is, of course, a journey that is not the same for any two of us, but from my own experience I would conclude that whilst it might feel at certain points as described by the former it is ultimately more akin to the latter.

Despite its richness, medieval discourse concerning dignity suffered from a number of problems. One of these was a tendency to ignore dignity in favour of (hoped for) general deterrence in thinking about criminal punishment, which extended to the death penalty. Another was that it did not fully embrace equality for all. Formal thought about dignity was almost exclusively male and in some ways highly misogynistic in its content. It included, for example, the ‘reactualization of the Aristotelian notion of the woman as a failed man’ (Imbach, 2014, 70). Equally, slavery was not properly opposed and actually defended by some leading thinkers, including Thomas Aquinas who believed that it could be deduced from natural law (Summa Theologiae II, q. 57, Art. 3 ad 2).

By contrast, the theme of universal equality appears to have gained ground in formal...

Table of contents

• Cover
• Half Title
• Series Title
• Title
• Copyright
• Contents
• List of figures
• List of table
• Abbreviations
• Introduction: The context to me writing this book
• PART I The case for respect in the context of medical use of the human being
• PART II Shortfalls in constraint - three areas viewed through the lens of respect
• Conclusion
• Index