The Tyranny of Principles

Author(s): Stephen Toulmin

Source: The Hastings Center Report, Vol. 11, No. 6 (Dec., 1981), pp. 31-39
Published by: The Hastings Center
Stable URL: http://www.jstor.org/stable/3560542
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 THE ETHICSOF DISCRETION
REGAINING
The Tyranny
by STEPHENTOULMIN
If thiswerea sermon(andperhapsit is), its textwouldbe
the quotationattributedto H. L. Menckenthathangs in the
staff lounge at The HastingsCenter:
For every humanproblem,thereis a solutionthatis simple,
neat,andwrong.'
Oversimplificationis a temptationto which moral philoso-
phers are not immune, despite all their admirableintellec-
tualcare andseriousness;and the abstractgeneralizationsof
theoreticalethics are, I shall argue,no substitutefor a sound
traditionin practicalethics.
These days, public debates about ethical issues oscillate
between, on the one hand, a narrowdogmatismthat con-
fines itself to unqualifiedgeneral assertionsdressed up as
"mattersof principle"and, on the other, a shallow relativ-
ism thatevades all firmstandsby suggestingthatwe choose
our "value systems" as freely as we choose our clothes.
Both approachessufferfrom the same excess of generality.
The rise of anthropologyand the other human sciences in
the early twentiethcenturyencourageda healthy sense of
social and cultural differences; but this was uncritically
takenas implyingan end to all objectivityin practicaleth-
ics. The subsequentreassertionof ethical objectivity has
led, in turn, to an insistence on the absolutenessof moral
principlesthat is not balancedby a feeling for the complex
problemsof discriminationthat arise when such principles
are applied to particularreal-life cases. So, the relativists
have tendedto overinterpretthe need for discriminationin
ethics, discretion in public administration,and equity in
law, as a license for generalpersonalsubjectivity.The ab-
solutistshave respondedby denying all real scope for per-
sonal judgment in ethics, insisting instead on strict
constructionin the law, on unfeeling consistencyin public
administration,and-above all-on the "inerrancy"of
moral principles.
I proposeto concentratemy attentionon this last phenom-
enon-the revival of a tyrannicalabsolutismin recent dis-
cussions aboutsocial and personalethics. I find it reflected
in attitudestowardpolitics, public affairs, and the adminis-
trationof justice, as much as towardquestionsof "ethics"
STEPHEN TOULMIN is professor, Committee on Social
Thoughtand departmentofphilosophy, Universityof Chicago.
This article is adaptedfrom a presentation at The Hastings
Center's General Meeting held on June 19, 1981. It was also
presented, in a somewhat different version, at Osgoode Hall
Law School and will be published in that version in the Os-
goode Hall LawJournal.
The Hastings Center
of Principles
in a narrowerand more personalsense. My main purpose
will be to ask: What is it about our present situationthat
inclines us to move in that direction?By way of reply, I
shall arguethat, in all large industrializedsocieties and cul-
tures-regardless of theireconomic and politicalsystems-
ethics, law, and public administrationhave recentlyunder-
gone similar historical transformations,so that all three
fields are exposedto the same kindsof pressures,face com-
mon difficulties,and sharein the same resultingpublicdis-
trust.And I shall try to show whatwe can learnaboutthose
sharedproblems,and aboutthe responsesthatthey call for,
by studyingthe commonorigins of our basic ethical, legal,
and political ideas. All my centralexamples will be con-
cernedwith the same generaltopic: the nature,scope, and
force of "rules" and "principles"in ethics and in law.
Threepersonalexperienceshelped to bringthese problems
into focus for me.
Three Personal Experiences
Human Subjects Research. For several years in the
mid-1970s, I worked as a staff member with the National
Commissionfor the Protectionof HumanSubjectsof Bio-
medical and BehavioralResearch, which was established
by the U.S. Congress, with the task of reportingand mak-
ing recommendationsaboutthe ethics of using humansub-
jects in medical and psychological research. Eleven
commissioners-five of them scientists, the remainingsix
lawyers, theologians, and other nonscientists-were in-
structedto make recommendationsaboutpublicly financed
human experimentation:in particular,to determineunder
what conditions subjects belonging to certain vulnerable
groups(such as young childrenandprisoners)could partici-
pate in such researchwithoutmoral objection.2
Before the Commissionbegan work, many onlookersas-
sumedthatits discussionswould degenerateinto a Babel of
rival opinions. One worldly commentatorremarkedin the
New England Journal of Medicine, "Now (I suppose) we
shall see mattersof eternalprincipledecidedby a six to five
vote."3 But things did not work out that way. In practice,
the commissionerswere never split along the line between
scientistsand nonscientists.In almostevery case they came
close to agreementeven aboutquite detailedrecommenda-
tions-at least for so long as their discussions proceeded
taxonomically,takingone difficultclass of cases at a time
and comparing it in detail with other clearer and easier
classes of cases.
Even when the Commission'srecommendationswere not
unanimous,the discussionsin no way resembledBabel:the
31
commissionerswere never in any doubt what it was that
they were not quite uncaniimousabout. Babel set in only
afterwards. When the eleven individual commissioners
asked themselves what "principles" underlay and sup-
posedly justified their adhesion to the consensus, each of
them answered in his or her own way: the Catholics ap-
pealed to Catholic principles, the humanists to humanist
principles,and so on. They could agree; they could agree
whatthey were agreeingabout;but, apparently,they could
not agree why they agreed about it.
This experience promptedme to wonder what this final
"appealto principles"really achieved. Certainlyit did not
add any weight or certitudeto the commissioners'specific
ethical recommendations,for example, about the kind of
consent proceduresrequiredin biomedical researchusing
five-year-oldchildren. They were, quite evidently, surer
about these shared, particularjudgments than they were
aboutthe discordantgeneralprincipleson which, in theory,
their practicaljudgmentswere based. If anything, the ap-
peal to principlesunderminedthe recommendationsby sug-
gesting to onlookers that there was more disharmonythan
ever showed up in the commissioners'actual discussions.
So, by the end of my tenure with the Commission I had
begun to suspectthatthe point of "appealingto principles"
was somethingquiteelse: not to give particularethicaljudg-
ments a more solid foundation,but ratherto squarethe col-
lective ethical conclusions of the Commission as a whole
with each individualcommissioner'sothernonethicalcom-
mitments. So (it seemed to me) the principlesof Catholic
ethics tell us more about Catholicismthan they do about
ethics, the principles of Jewish or humanist ethics more
aboutJudaismor humanismthanaboutethics. Such princi-
ples serve less as foundations,adding intellectualstrength
or force to particularmoral opinions, than they do as cor-
ridorsor curtainwalls linking the moralperceptionsof all
reflective human beings, with other, more general posi-
tions-theological, philosophical, ideological, or Welt-
anschaulich.
Abortion. The years of the NationalCommission'swork
were also years duringwhich the moralityof abortionbe-
came a matterof publiccontroversy.In fact, the U.S. Con-
gress establishedthe Commission in the backwash of the
SupremeCourt'srulingon the legality of abortion,follow-
ing a publicdisputeaboutresearchon the humanfetus. And
before long the public debateaboutabortionacquiredsome
of the same puzzling features as the proceedings of the
Commissionitself. On the one hand, there were those who
could discuss the moralityof abortiontemperatelyand with
discrimination,acknowledgingthat here, as in other ago-
nizing humansituations, conflicting considerationsare in-
volved and that a just, if sometimespainful, balancehas to
be struckbetween differentrightsand claims, interestsand
responsibilities.4That temperateapproachunderlaytradi-
tionalcommon law doctrinesaboutabortionbefore the first
32
statutoryrestrictionswere enactedin the yearsaround1825.
It was also the approachadopted by the U.S. Supreme
Courtin the classic case, Roe v. Wade; and, most impor-
tant, it was the approachclearlyspelled out by ThomasAq-
uinas, whose position was close to that of the common law
andthe SupremeCourt.(He acknowledgedthatthe balance
of moral considerationsnecessarilytilts in differentdirec-
tions at differentstages in a woman'spregnancy,with cru-
cial changes beginningaroundthe time of "quickening."5)
On the otherhand, much of the public rhetoricincreasingly
came to turn on "mattersof principle." As a result, the
abortiondebatebecame less temperate,less discriminating,
and above all less resolvable. Too often, in subsequent
years, the issue has boiled down to pure head-butting:an
embryo'sunqualified"rightto life" being pitted against a
woman'sequallyunqualified"rightto choose." Those who
have insistedon dealing with the issue at the level of high
theory thus guaranteethat the only possible practicalout-
come is deadlock.
Social WelfareBenefits. My perplexitiesabout the force
and value of "rules"and "principles"were furthersharp-
ened as the result of a television news magazineprogram
about a handicappedyoung woman who had difficulties
with the local Social Security office. Her Social Security
paymentswere not sufficientto cover her rent and food, so
she started an answering service, which she operated
throughthe telephoneat her bedside. The income from this
service-though itself less thana living wage-made all the
difference to her. When the local Social Security office
heardabout this extra income, however, they reducedher
benefitsaccordingly;in addition,they orderedher to repay
some of the money she had been receiving. (Apparently,
they regardedher as a case of "welfarefraud.")The televi-
sion reporteradded two final statements.Since the report
had been filmed, he told us, the young woman, in despair,
had takenher own life. To this he addedhis personalcom-
ment that "there should be a rule to preventthis kind of
thing from happening."
Notice that the reporterdid not say, "The local office
should be given discretionto waive, or at least bend, the
existing rules in hard cases." What he said was, "There
should be an additional rule to prevent such inequities in
the future."Justice, he evidently believed, can be ensured
only by establishingan adequatesystem of rules, and in-
justice can be preventedonly by adding more rules.
Hence, the questions that arise from these experiences:
Whatforce andfunctiondo rulesor principlestrulypossess,
eitherin law or in ethics?Whatsocial andhistoricalcircum-
stancesmakeit most naturalandappropriateto discuss legal
and ethical issues in the languageof "rules" and "princi-
ples"? Why are our own contemporarylegal and ethical
discussionsso preoccupiedwith rules and principles?And
to what extent would we do betterto look for justice and
moralityin other directions?
The Hastings Center Report, December 1981
 Rules in Roman Law
Far from playing an indispensablepart in either law or
ethics, "rules" have only a limited and conditionalrole.
The currentvogue for rules and principlesis the outcomeof
certainpowerful factors in recent social history;but these
factorshave always been balancedagainstcounterweights.
Justice has always requiredboth law and equity, while
moralityhas always demandedboth fairness and discrimi-
nation. When this essential duality is ignored, reliance on
unchallengeableprinciplescan generate,or become the in-
strumentof, its own subtle kind of tyranny.
My reading soon led me back to Peter Stein's Regulae
Juris, which traces the developmentof the concept of a
"rule" in Roman law from its beginnings to the modern
era.6His accountof the earliestphases of Roman law was
for me the most strikingpart. For the first three hundred
years of Roman history, the legal system made no explicit
use of the conceptof rules. The College of Pontiffsactedas
the city's judges, and individualpontiffs gave their adjudi-
cations on the cases submittedto them. But they were not
requiredto cite any general rules as justificationsfor their
decisions. Indeed,they were not requiredto give reasonsat
all. Their task was not to argue, but ratherto pontificate.
How was this possible?How can any system of law oper-
ate in the absence of rules, reasons, and all the associated
apparatusof bindingforce and precedent?Indeed, in such a
situationcan we say a truesystemof law exists at all? Those
questions require us to consider the historical and an-
thropologicalcircumstancesof early Rome. InitiallyRome
was a small and relatively homogeneous community,
whose members shared a correspondinglyhomogeneous
traditionof ideas aboutjustice and fairness, propertyand
propriety, a tradition having more in common with Sir
Henry Maine's ideas about traditional"customarylaw"
than with the "positive law" of John Austin'sProvince of
JurisprudenceDetermined.7 In any such community the
functionsof adjudicationtend to be morearbitralthanregu-
latory.Like laborarbitrators today, the judges will not be as
sharply bound by precedent as contemporaryhigh court
judges. So the disputes that the pontiffs adjudicatedwere
typically ones about which the traditionalconsensus was
ambiguous;the balance of rights and obligations between
the partiesrequiredthejudgmentcall of a trustedand disin-
terestedarbitrator.In these marginalcases all that the arbi-
trator may be able to say is, "Having taken all the
circumstancesinto account,I find that on this particularoc-
casion it would, all in all, be more reasonableto tilt the
scale to A ratherthanto B." This rulingwill rest, not on the
applicationof generallegal rules, but ratheron the exercise
of judicial discriminationin assessing the balance of par-
ticulars.Initially,"pontificating"did not mean laying down
the law in a dogmatic manner. Rather, it meant resolving
marginaldisputesby an equitablearbitration,and the pon-
tiffs had the trustof their fellow citizens in doing so.
The Hastings Center
This state of affairs did not last. Long before the first
Imperialcodification,Romanlaw began to develop the full
apparatusof "rules"with which we ourselves are familiar.
Stein suggests that five sets of factors contributedto this
new relianceon regulae.8 First, as the city grew, the case
load increasedbeyond what the pontiffs themselves could
manage. Juniorjudges, who did not possess the same im-
plicit trustas the pontiffs, were broughtin to resolve dis-
putes; so the consistency of their rulings had to be
"regularized."Second, with the rise of lawyeringas a pro-
fession, law schools were set up and regulae were articu-
latedfor the purposeof teachingthe law. Discretion,which
had restedearlieron the personalcharactersof the pontiffs
themselvesand which is not so easy to teach, began to be
displacedby formalrulesandmoreteachableargumentative
skills. Third, Rome acquiredan empire, and foreign peo-
ples came underthe city's authority.Their systems of cus-
tomary law had to be put into harmonywith the Roman
system, and this could be done only by establishinga con-
cordancebetween the "rules"of differentsystems. Fourth,
the empireitself developeda bureaucracy,which could not
operateexcept on the basis of rules. Finally, the intellectual
discussionof law was pursuedin the context of Greekphi-
losophy. Although Cicero, for example, was a practicing
attorney,he was also a philosophicalscholarwith a profes-
sionalinterestin the Stoic doctrineof the logos, or "univer-
sal reason."
What followed the resulting proliferationof rules and
laws is common knowledge. First, a functionaldifferentia-
tion grew up betweentwo kindsof issues. On the one hand,
therewere issues thatcould be decidedby applyinggeneral
rules or laws, on the basis of the maxim that like cases
shouldbe treatedalike. On the otherhand,therewere issues
thatcalled for discretion,with an eye to theparticular fea-
turesof each case, in accordancewith the maxim that sig-
nificantlydifferentcases should be treateddifferently.This
functionaldifferentiationbecame the ancestorof our own
distinctionbetween legal and equitablejurisdiction. Sec-
ond, the EmperorConstantinedecided as a matterof impe-
rial policy to bringequitablejurisdictionunderhis personal
controlby reservingthe equitablefunctionto his own per-
sonal court and chancellor.Out in the public arena,judges
were given the menial task of applying general rules with
only the minimum of discretion. Once legal proceedings
were exhausted, the aggrieved citizen could appeal to the
Emperoras parens patriae ("fatherof the fatherland")for
the benevolentexercise of clemency or equity. Politically,
this divisionof laborcertainlydid the Emperorno harm;but
it also sowed the firstseeds of public suspicionthatthe Law
is one thing, Justice another.9
Carriedover into the moder English-speakingworld, the
resulting division between courts of law and courts of
equity is familiar to readersof Charles Dickens. And al-
thoughduringthe twentiethcenturymost Anglo-American
jurisdictionshave merged legal and equitablefunctions in
33
the same courts,10it is still widely the case that equitable
remediescan be sought only in cases where legal remedies
are unavailableor unworkable-so that in this respect the
dead hand of Constantinestill rules us from the grave.
The Ethics of Strangers
Life in late-twentieth-century industrialsocieties clearly
has more in common with life in ImperialRome thanit has
with the Rome of Horatiusat the Bridge or with Mrs. Gas-
kell's Cranford. Our cities are vast, our populationsare
mixed and fragmented,our public administrationis bureau-
cratic, our jurisdictions (both domestic and foreign) are
manyandvaried.As a result,the moralconsensusandcivic
truston which the pontificateof early Rome dependedfor
its generalrespect and efficacy often appearto be no more
thana beguilingdream.The way we live now, people have
come to value uniformityabove responsiveness,to focus on
law at the expense of equity, and to confuse "the rule of
law" with a law of rules. Yet the balancebetween law and
equitystill needs to be struck,even if new ways need to be
foundthatanswerournew needs. Fromthis pointon, I shall
workmy way towardthe question:how, in our actualsitua-
tion, can that balance best be redressed?
In law, in ethics, and in public administrationalike, there
is nowadaysa similarpreoccupationwith generalprinciples
and a similardistrustof individualdiscretion.In the admin-
istrationof social services, the demandfor equalityof treat-
ment makes us unwilling to permit administratorsto
"temperthe wind to the shorn lamb"-that strikes us as
unfair,and thereforeunjust.1 (The equationof justice with
fairness is thus a two-edged sword.) In the professions, a
widespreadfear that professionalsare takingunfairadvan-
tage of theirfiduciarypositionshas contributedto the recent
wave of malpracticesuits. In the courts, judges are given
less and less room to exercise discretion,and many lawyers
view juries as no more trustworthythan judges; the more
they are both kept in line by clear rules, or so it seems, the
better.'2As for publicdiscussionsof ethics, the recognition
of genuinemoralcomplexities,conflicts, andtragedies,that
can be dealt with only on a case-by-case basis, is simply
unfashionable.Victory in public argumentgoes, rather,to
the person with the more imposing principle. Above all,
many people involved in the currentdebate seem to have
forgottenwhat the term "equity"actuallymeans. They as-
sume that it is just a literarysynonymfor "equality."'3So,
a demand for the uniform applicationof public policies
leads to a submergingof the discretionaryby the rigorous,
the equitableby the equal. Faced with judicial injustices,
we react like the television reporter, declaring, "There
oughtto be a law againstit," even where it would be more
appropriateto say, "In this particularcase, the law is mak-
ing an ass of itself." The same applies to the operationof
our bureaucracies,and to the emphasis on principles in
moraljudgments.
34
In all three fields, we need to be remindedthat equity
requiresnot the impositionof uniformityor equalityon all
relevantcases, but ratherreasonablenessor responsiveness
(epieikeia) in applyinggeneral rules to individualcases.14
Equity means doing justice with discretionaround, in the
intersticesof, and in areas of conflict between our laws,
rules, principles, and other general formulas. It means
being responsiveto the limits of all such formulas, to the
special circumstancesin which one can properlymake ex-
ceptions, and to the trade-offsrequiredwhere differentfor-
mulas conflict. The degree to which such marginal
judgmentscan be regularizedor routinizedremainslimited
today, just as it was in early Rome. Faced with the task of
balancing the equities of different parties, a judge today
may well be guidedby previousprecedents;but these prece-
dents only illuminatebroad maxims, they do not invoke
formalrules.15Likewise, professionalpracticemay be de-
scribedin cut-and-driedterms as a matterof "routineand
accepted"proceduresonly in the artificialcontextof a mal-
practicesuit. In the actualexercise of his profession, a sur-
geon, say, may sometimes simply have to use his or her
own best judgment in deciding how to proceed conscien-
tiously. Finally, in ethics, moralwisdom is exercisednot by
those who stick by a single principlecome what may, abso-
lutely and withoutexception, but ratherby those who un-
derstand that, in the long run, no principle-however
absolute-can avoid runningup againstanotherequallyab-
solute principle;and by those who have the experienceand
discriminationneeded to balanceconflictingconsiderations
in the most humaneway.16
By looking at the effects of changing social conditions
and modes of life on our ethical perceptions,I believe we
can best hit on the clues that will permitus to unravelthis
whole tangleof problems.A centuryago in Anna Karenina
Leo Tolstoy expresseda view which, thoughin my opinion
exaggerated,is none the less illuminating.Duringhis life-
time Tolstoy lived to see the abolitionof serfdom,the intro-
ductionof railways,the movementof populationaway from
the countryto the cities, and the consequentemergenceof
modemcity life; andhe continuedto have deep reservations
aboutthe possibilityof living a trulymorallife in a moder
city. As he saw matters,genuinely "moral"relationscan
exist only between people who live, work, and associate
together:inside a family, between intimatesand associates,
within a neighborhood.The naturallimit to any person's
moral universe, for Tolstoy, is the distancehe or she can
walk, or at most ride. By taking the train, a moral agent
leaves the sphereof trulymoralactionsfor a worldof stran-
gers, towardwhom he or she has few real obligationsand
with whom dealings can be only casual or commercial.
Whenever the moral pressuresand demands become too
strongto bear, Tolstoy has Anna go down to the railway
station and take a train somewhere, anywhere. The final
ironyof Tolstoy's own painfullife was thathe finallybroke
away from his home and family, only to die in the local
The Hastings Center Report, December 1981
stationmaster's office.17 Matters of state policy and the like,
in Tolstoy's eyes, lay quite outside the realm of ethics.
Throughthe figure of ConstantinLevin, he made clear his
skepticismaboutall attemptseitherto turnethics into a mat-
ter of theory or to make political reform an instrumentof
virtue.18
What Tolstoy rightly emphasizedis the sharpdifference
that exists between our moral relations with our families,
intimates,and immediateneighborsor associates, and our
moralrelationswith completestrangers.In dealingwith our
children, friends, and immediatecolleagues, we both ex-
pect to-and are expected to-make allowances for their
individualpersonalitiesand tastes, and we do our best to
time our actionsaccordingto our perceptionof theircurrent
moods and plans. In dealing with the bus driver, the sales
clerkin a departmentstore, the hotel barber,and othersuch
casual contacts, there may be no basis for making these
allowances,and so no chanceof doing so. In these transient
encounters,our moral obligations are limited and chiefly
negative-for example, to avoid acting offensively or vio-
lently. So, in the ethics of strangers,respectfor rules is all,
and the opportunitiesfor discretionare few. In the ethics of
intimacy,discretionis all, andthe relevanceof strictrulesis
minimal.19For Tolstoy, of course, only the ethics of inti-
macy was properlycalled "ethics"at all-that is why I de-
scribed his view as exaggerated. But in this respect the
ethics of JohnRawls is equally exaggerated,though in the
opposite direction. In our relations with casual acquaint-
ances and unidentifiedfellow citizens, absoluteimpartiality
may be a primemoraldemand;but among intimatesa cer-
tain discreet partialityis, surely, only equitable, and cer-
tainly not unethical. So a system of ethics that rests its
principleson "the veil of ignorance"may well be "fair,"
but it will also be-essentially-an ethics for relationsbe-
tween strangers.20
The Stresses of Lawsuits
Seeing how Tolstoy felt abouthis own time, what would
he have thoughtaboutthe life we lead today?The effects of
the railways, in blurringthe boundarybetween the moral
world of the immediatecommunityand the neutralworld
beyond, have been only multipliedby the privatecar, which
breaksthat boundarydown almost completely. Living in a
high-riseapartmentbuilding, takingthe car from its under-
groundgarageto the supermarketandback, the moder city
dweller may sometimes wonderwhetherhe has any neigh-
bors at all. For many of us, the sphere of intimacy has
shrunkto the nuclear family, and this has placed an im-
mense strainon family relations.Living in a world of com-
parativestrangers,we find ourselvesshorton civic trustand
increasinglyestrangedfrom our professionaladvisors. We
are less inclinedto give judges and bureaucratsroom to use
theirdiscretion,and moredeterminedto obtainequal (if not
always equitable)treatment.In a world of complete stran-
The Hastings Center
gers, indeed, equality would be about the only virtueleft.
Do not misunderstandmy position. I am not taking a
nostalgia trip back to the Good Old Days. The world of
neighborlinessand forced intimacy, of both geographical
and social immobility, had its vices as well as its virtues.
Jane Austen's caricatureof Lady Catherinede Burgh in
Pride and Prejudice remindsus that purchasingequity by
submittingto gross condescensioncan make its price too
dear:
Godblessthe Squireandhis relations,
andkeepus in ourproperstations.
Any biographyof Tolstoy remindsus thathis world, too,
hada darkerside. Those who are seducedby his admiration
for the moral wisdom of the newly emancipatedpeasantry
will find an antidote in FrederickDouglass's memoirs of
slave life on the Marylandshore. Nor am I deploringapart-
ment buildings and privatecars. People usually have rea-
sons for living as they do, and attackingmodernityin the
nameof the moralityof an earliertime is an act of despera-
tion, like buildingthe BerlinWall. No, my questionis only:
If we accept the moder world as it is-apartment build-
ings, privatecars, and all-how can we strike the central
balance between the ethics of intimatesand the ethics of
strangers,between uniformityof treatmentand administra-
tive discretion,and between equity and law, in ways that
answerour contemporaryneeds?
To begin with the law: currentpublicstereotypesfocus on
the shortcomingsof the adversaryprocess, but what first
needs to be explainedis just wherethe adversarysystemhas
gone astray, and in what fields of law we should be most
concerned to replace it. That should not be hard to do.
Given thatwe handleour moralrelationswith intimatesand
associates differentlyfrom our moral relationswith stran-
gers, is not some similardifferentiationappropriatebetween
ourlegal relationswith strangers,on the one hand, andwith
intimates, associates, and close family members on the
other?
Even in the United States, the homelandof the adversary
system, at least two types of disputes-labor-management
conflicts and the renegotiationof commercialcontracts-
aredealtwith by using arbitrationor conciliationratherthan
confrontation.21 That is no accident. In a criminalprosecu-
tion or a routinecivil damagesuit arisingout of a car colli-
sion, the partiesare normallycompletestrangersbeforethe
proceedingsandhave no stakein one another'sfuture,so no
harmis done if they walk out of the courtvowing never to
set eyes on each other again. By contrast,the partiesto a
laborgrievancewill normallywish to continueworkingto-
getherafterthe adjudication,while the disputantsin a com-
mercial arbitrationmay well retain or resume business
dealingswith one anotherdespitethe presentdisagreement.
In cases of these kinds, the psychological stresses of the
adversarysystem can be quite destructive:by the time an
enthusiasticlitigatingattorneyhas done his bit, furtherlabor
35

relations or commercial dealings may be psychologically
impossible. So in appraisingdifferent kinds of court pro-
ceedings, we need to considerhow particulartypes of judi-
cial episodes fit into the larger life histories of the
individualswho are parties to them, and what impact the
form of proceedingscan have on those life histories.
A lawsuit that pits the full power of the state against a
criminal defendant is one thing: in that context, Monroe
Freedmanmay be rightto underlinethe meritsof the adver-
sary mode, and the positive obligationsof zealous defense
advocacy.22A civil suit that pits colleagues, next-door
neighbors,or family membersagainsteach otheris another
thing: in that context resort to adversaryproceedingsmay
only make a bad situationworse. So, reasonablyenough,
the main locus of dissatisfactionwith the adversarysystem
is those areasof humanlife in which the psychologicalout-
comes are most damaging:family law, for example. By the
time that the father, mother, and children involved in a
custody dispute have all been zealously representedin
court, the bad feelings fromwhich the suit originallysprang
may well have become irremediable.It is just such areasas
family law thatothernations(such as West Germany)have
chosen to handle by arbitrationratherthan litigation, in
chambers ratherthan in open court, so providing much
more room for discretion.
I am suggesting, then, that a system of law consisting
wholly of rules would treatall the partiescoming before it
in the ways appropriateto strangers.By contrast,in legal
issues that arise between parties who wish to continue as
close associates on an intimate or familiar level, the de-
mands of equality and rule conformity lose their central
place. There, above all, the differencesbetweenthe desires,
personalities,hopes, capacities,andambitionsof the parties
mostneed to be takeninto account;and only an adjudicator
with authorityto interpretexisting rules, precedents, and
maximsin the light of, and in responseto, those differences
will be in a positionto respectthe equities of all the parties
involved.
Reviving the Friendly Society
In public administration,especially in the field of social
services, the crucial historicalchanges were more recent,
yet they appearmuch harderto reverse. Two centuriesago
most of what we now call the social services-then known,
collectively, as "charity"-were still dispensedthroughthe
churches.Local ministersof religionwere generallytrusted
to performthis duty equitablyand conscientiously;and in
decidingto give more to (say) Mrs. SmiththanMrs. Jones,
they were not strictlyanswerableto any supervisor,still less
bound by a book of rules. (As with the Squirearchy,of
course, this arrangementhad its own abuses:the Rev. Mr.
Collins could be as overbearingin his own way as Lady
Catherinede Burgh.) Even a hundredyears ago many such
charitablefunctionswere still carriedon by privateorgani-
36
I --_ - I I- I IL- I I
zations, like those in Britainwhich were charminglyknown
as "friendlysocieties." But by this time things were begin-
ning to change. A friendly clergymanis one thing, but a
friendlysociety is more of an anomaly:in due courseirreg-
ularitiesin the administrationof those organizations-like
those in some tradeunion pension funds today-provoked
governmentsupervision, and a Registrarof Friendly So-
cieties was appointedto keep an eye on them.
From that point on, the delivery of social services has
become ever more routinized, centralized, and subject to
bureaucraticroutine. It should not take horrorstories, like
thatof the handicappedyoung woman'sansweringservice,
to makeus thinkagainaboutthe whole projectof delivering
humanservicesthrougha bureaucracy:one only has to read
Max Weber.The imperativesof bureaucraticadministration
require determinate procedures and full accountability;
while a helping hand, whether known by the name of
"charity"or "social services," can be trulyequitableonly if
it is exercised with discretion, on the basis of substantive
andinformedjudgmentsaboutneed ratherthanformalrules
of entitlement.
What might be done, then, to counterthe rigors of bu-
reaucracyin this field? Or shouldlate-twentieth-century so-
cieties look for other ways of lending a collective hand to
those in need? In an exemplaryapologia for bureaucracy,
HerbertKaufmanof the Brookings Institutionhas put his
fingeron manyof the key points.23If we findpublic admin-
istration today complex, unresponsive, and procedure-
bound, he arguesthat this is almost entirelyour own fault.
These defects are directconsequencesof the demandsthat
we ourselveshave placed on our public servantsin a situa-
tion increasinglymarkedby diversity, democracy,and dis-
trust. Since we are unwilling to grant discretion to civil
servantsfor fear that it will be abused, we leave ourselves
with no measure for judging administrators'performance
otherthanequality. As Kaufmanremarks,"If people in one
regiondiscoverthatthey are treateddifferentlyfrompeople
in otherregionsunderthe same program,they are apt to be
resentfuland uncooperative."24
Hence there arises a "generalconcernfor uniformappli-
cationof policy," which can be guaranteedonly by making
the rulebookeven more inflexible. Yet is our demandfor
equality and uniformityreally so unqualifiedthat we are
determinedto purchaseit at any price? If we were certain
thatour own insistenceon absolutefairnessmadethe social
services dehumanizingand dehumanized, might we not
consideropting for other, more equitable procedureseven
though their outcomes might be less equal?
Alternatively,perhapswe should reconsiderthe whole-
sale nationalizationof charitythatbegan in the early twen-
tiethcentury.Plentyof uncorruptprivatepensionfundsstill
operatealongsidegovernmentalretirementandold-agepen-
sion schemes, anda few communallybased systemsof wel-
fare and charity remain trusted just because their
accountabilityis to a particularcommunity.Among the Is-
The Hastings Center Report, December 1981
 _ I
mailis, for instance, the world-wide branch of Islam of
which the Aga Khanis the head, tithingis still the rule, and
no promising high school graduatemisses the chance of
going to college merelybecausehe comes from a poorfam-
ily. Despite governmentalprograms,that is no longer true
of the United States. So perhapswe have let ourselvesbe-
come too skeptical too soon about the friendliness of
"friendlysocieties," and we shouldtake more seriouslythe
possibility of reviving social instrumentswith local roots,
which do not need to insist on rigidly rule-governedproce-
dures. That is of course a large "perhaps." The social
changesthatled to the nationalizationof charityare power-
ful and longstanding,and thus far they have shown little
sign of weakening. Given a choice, people may prefer to
continueputtingup with bureaucraticforms and procedures
that they can grumbleat with impunityif in this way they
can avoid puttingthemselvesat the mercyof social or com-
munal relationshipsthat they may find onerous.
Frail Hopes and Slender Foundations
In the field of ethics, all these difficultiesare magnified.
There I have one firm intellectual conviction, and one
somewhatfrailerhope on the social level.
In a 1932 poem RobertFrost wrote:
Don'tjoin too manygangs.Joinfew if any.
Jointhe UnitedStates,andjoin the family.
Butnot muchin between,unlessa college.25
Frost, in his curmudgeonlyway, capturesthat hostility
towardcommunalties and restraintswhich, since Tolstoy's
day, has continuedto undermineour "intermediateinstitu-
tions" or "mediatingstructures."Towardthe nuclearfam-
ily and the nation, people do indeed still feel some natural
loyalty; "butnot much in between, unless a college." Dur-
ing the last thirtyyears, even the nation-statehas lost much
of its mystique,leaving the familyexposed to stressesthatit
can hardlysupport.It is my frail social hope that we may
find some new ways of shapingother intermediateinstitu-
tions toward which we can develop a fuller loyalty and
commitment:associations larger than the nuclear family,
but not so large that they defeat in advancethe initial pre-
sumptionthatour fellow membersare trustworthy.For it is
only in that context, I suspect, that the ethics of discretion
and intimacycan regainthe groundit has lost to the ethics
of rules and strangers.
Wheremight we look for the beginningsof such associa-
tions?Traditionallytheir loci were determinedby religious
andethnic ties, and these are still sometimesused construc-
tively to extend the range of people's moral sympathies
beyond the immediatehousehold. But we scarcely need to
look as far as Ulsteror Lebanonto see the otherside of that
particularcoin. Membershipin schools and colleges has
some of the same power, as Frost grudgingly admits,
thoughit is a power thattends to operateexclusively rather
thangenerously.The greatethicalhope of the Marxistswas
The Hastings Center
that "working-classsolidarity"would, in effect, create a
vast and cohesive extended family within which the dis-
possessed would find release from psychologicalas well as
from politicaland economic oppression.But by now, alas,
the evidence of history seems to show that awareness of
shared injuries sets different groups against one another
quiteas often as it unitesthem. For some of us, the bondsof
professionalassociationare as powerfulas any. The physi-
cians of Tarrytownor the attorneysof Hyde Parkprobably
have a close understandingof, feeling for, and even trustin
one another;and despite all other reservationsabout my
fellow academics, I do still have a certainimplicit trustin
theirprofessionalresponsibilityand integrity.So each year,
withoutany serious anxiety, I vote for colleagues whom I
have nevereven met to serve on the boardsthatmanagemy
pension funds. If it were proved that those elected repre-
sentativeshad been milkingthe premiumsand saltingthem
away in a Swiss bank, that revelationwould shake up my
moral universe more radicallythan any dishonestyamong
public figureson the nationallevel.
True, these are frailhopes andprovideonly slenderfoun-
dationsto build on. Yet, in the realm of ethics, frail hopes
and slender foundationsmay be what we should learn to
live with as muchbetterthannothing.And thatbringsme to
the intellectualpoint about which I am much more confi-
dent. If the cult of absoluteprinciplesis so attractivetoday,
thatis a sign thatwe still findit impossibleto breakwith the
"questfor certainty"that John Dewey tried so hardto dis-
credit.26Not that we needed Dewey to point out the short-
comings of absolutism.Aristotle himself had insisted that
there are no "essences" in the realm of ethics, and so no
basis for any rigorous"theory"of ethics. Practicalreason-
ing in ethics, as elsewhere, is a matter of judgment, of
weighing different considerations against one another,
nevera matterof formaltheoreticaldeductionfrom strictor
self-evidentaxioms. It is a task less for the clever arguer
than for the anthropos megalopsychos, the "large-spirited
human being."27
It was not for nothing,then, thatthe membersof the Na-
tional Commission for the Protectionof Human Subjects
were able to agreeaboutthe ethicalissues forjust so long as
they discussedthose issues taxonomically.In doing so they
wererevivingthe older, Aristotelianproceduresof the casu-
ists and rabbinicalscholars, who understoodall along that
in ethics, as in law, the best we can achieve in practiceis for
good-hearted,clear-headedpeople to triangulatetheir way
across the complex terrainof morallife and problems. So,
starting from the paradigmaticcases that we do under-
stand-what in the simplestsituationsharmis, and fairness,
and cruelty, and generosity-we must simply work our
way, one step at a time, to the more complex and perplex-
ing cases in which extremelydelicatebalancesmay have to
be struck.For example, we mustdecide on just whatcondi-
tions, if any, it wouldbe acceptableto injecta samplegroup
of five-year-oldchildrenwith an experimentalvaccine from
37
 Y
which countless other childrenshould benefit even though
the risks fall on those few individualsalone. Ethicalargu-
mentationthus makesmost effective progressif we thinkof
the "commonmorality"in the same way as we thinkabout
the common law:28if, for instance, we develop our percep-
tion of moral issues by the same kind of progressivetri-
angulationthat has extendedcommon law doctrinesof tort
into the areas, first of negligence and later of strict lia-
bility.29
Meanwhile, we must remainon guardagainstthe moral
enthusiasts.In theirdeterminationto nail theirprinciplesto
the mast, they succeed only in blinding themselves to the
equities embodied in real-life situations and problems.
Their willingness to legislate morality threatensto trans-
form the most painful and intimatemoral quandariesinto
adversarialconfrontationsbetween strangers.To take one
example, by reintroducinguncompromisinglegal restraints
to enjoin all proceduresof abortionwhatever,they are pit-
ting a woman against her own newly implantedzygote in
some ghastly parody of a landlord-tenantdispute. This
harshinflexibilitysets the presentday moralenthusiastsin
sharpcontrastto Aristotle'santhropoimegalopsychoi, and
recalls Tolstoy's portraitof Alexei Karenin'sassociate, the
Countess Ivanovna, who in theory was a supporterof all
fashionablegood causes but in practice was ready to act
harshlyand unforgivingly.
When Pascal attackedthe Jesuit casuists for being too
ready to make allowances in favor of penitentswho were
rich or highborn,he no doubt had a point.30But when he
used this point as a reasonfor completelyrejectingthe case
method in ethics, he set the bad example that is so often
followed today:assumingthatwe must withdrawdiscretion
entirely when it is abused and impose rigid rules in its
place, insteadof inquiringhow we could adjustmattersso
thatnecessarydiscretionwould continueto be exercised in
an equitableand discriminatingmanner.I vote withouthes-
itationagainstPascal and for the Jesuits and the Talmudic
scholars.We do not need to go as far as Tolstoy and claim
that an ethics modeled on law ratherthan on equity is no
ethics at all. But we do need to recognize that a morality
based entirelyon general rules and principlesis tyrannical
and disproportioned,and that only those who make equi-
table allowances for subtle individualdifferences have a
properfeeling for the deeperdemandsof ethics. In practice
the casuists may occasionally have been lax; but they
graspedthe essential, Aristotelianpoint about appliedeth-
ics: it cannotget along on a diet of generalprinciplesalone.
It requiresa detailedtaxonomyof particular,detailedtypes
of cases and situations. So, even in practice, the faults of
the casuists-such as they were-were faults on the right
side.
REFERENCES
'PresidentJimmy Carterused this quotation in a speech and attrib-
uted it to H. L. Mencken. However, the Humanities Section of the
38
Enoch PrattLibraryin Baltimorehas been unableto locate it in Menck-
en's works.
2The work of the U.S. National Commission for the Protectionof
Human Subjects of Biomedical and Behavioral Research will be dis-
cussed more fully in a paperto be publishedin a forthcomingHastings
Centervolume on the "closure"of technical and scientific discussions.
3So, at any rate, currentlegend reports. On the other hand, having
workedthroughthe files of the Journal for 1974-75 withoutfindingany
articleor editorialon the subject, I am inclined to suspect that this may
have been a casual remarkby the late Dr. FranzIngelfinger,the distin-
guished editor of the periodical.
4Daniel Callahan,Abortion:Law, Choice and Morality (New York:
Macmillan, 1970);JohnT. Noonan, Jr., ed., The Moralityof Abortion:
Legal and HistoricalPerspectives (Cambridge,Mass.: HarvardUniver-
sity Press, 1970).
5ThomasAquinas, CommentariumLibro Tertio Sententiarum,D.3,
Q.5, A.2, Solutio.
6PeterStein, Regulae Juris (Edinburgh:EdinburghUniversity Press,
1966), pp. 4-10.
7Lloyd A. Fallers, Law without Precedent (Chicago: University of
Chicago Press, 1969): see also the classical discussion by Sir Henry
Maine in Lectures on the Early History of Institutions(1914).
8Stein, pp. 26ff, 80-82, 124-27.
9Forthe subsequentinfluenceof this division on the Anglo-American
legal tradition, see (e.g.) John H. Baker, An Introductionto English
Legal History (Toronto and London: Butterworths,1979).,
'?Politicallyspeaking, of course, the decline of monarchicalsover-
eignty made the formal division of law from equity less functional;so it
is no surprisethat the nineteenthcentury saw its abolition both in the
constitutionalmonarchyof Englandand also in the republicanUnited
States.
1John Rawls, A Theoryof Justice (Cambridge,Mass.: HarvardUni-
versity Press, 1971)is only the most recent systematicexposition of this
position, which has become something of a philosophical com-
monplace,at any rate since Kantraisedthe issue of "universalizability"
in the late eighteenthcentury.
'2See, e.g., Kenneth C. Davis, Discretionary Justice (Urbana, Ill.,
Univ. of Illinois Press, 1969); Ralph A. Newman, Equity and Law
(Dobbs Ferry, NY: Oceana, 1961);and particularlyRalph A. Newman,
ed., Equity in the World'sLegal Systems (Brussels: Bruylant, 1973).
'3This seems to be true even of so perceptive an author as Herbert
Kaufman, in his ingenious tract, Red Tape: its Origins, Uses and
Abuses (Washington, D.C.: Brookings Institution, 1977), pp. 76-77:
"Quite apartfrom protective attitudestoward specific programs, gen-
eral concern for uniform applicationof policy militates against whole-
sale devolution. Not that uniformity automatically assures equity or
equality of treatment...."
14Thelocus classicus for the discussion of the notion of epieikeia (or
"equity") is Aristotle's Nicomachean Ethics, esp. 1136b30-1137b32.
See also Max Hamburger'suseful discussion in Morals and Law: the
Growth of Aristotle's Legal Theory (New Haven: Yale University
Press, 1951).
'Henry L. McClintock,Handbookof the Principles of Equity, 2nd
ed. (St. Paul, Minn.: West, 1948) pp. 52-54; John N. Pomeroy, A
Treatise on Equity Jurisprudence (San Francisco: Bancroft Whitney,
1918-19),secs 360-63.
'6HenceAristotle'semphasis on the need for a person of sound ethi-
cal judgment to be an anthroposmegalopsychos.
'7This image of the steam locomotive had a powerful hold on
Tolstoy's imagination:it recurs, for example, in Warand Peace, where
he comparesthe ineluctable processes of history to the movements of
the pistons and cranksof a railway engine, as a way of discreditingthe
assumptionthat "world historical figures" like Napoleon can exercise
any effective freedom of action in the political realm.
'8This is the central theme of the closing book of Anna, in which
Tolstoy documentshis own disillusion with social and political ethics
throughthe characterof ConstantinLevin.
19Noticehow Aristotle treats the notion of philia as complementary
to thatof "equity." As he sees, the natureof the moral claims thatarise
within any situationdepend on how closely the parties are related:in-
deed, it might be betterto translatephilia by some such term as "rela-
tionship" instead of the customarytranslation,"friendship,"since his
argumentis intendedto be analytical ratherthan edifying.
The Hastings Center Report, December 1981
 I

2?Rawls,Theory of Justice.
21InUnited States labor law practice, arbitratorsare guided by the
published decisions of previous arbitrations,but not bound by them,
since their own decisions normally turn on an estimate of the exact
personal and group relations between the workers and managers in-
volved in the particular dispute. Indeed, in Switzerland-here, as
elsewhere, an extreme case-the results of labor arbitrationsare not
even published, on the groundthatthey are a "purelyprivatematter"as
between the immediate parties.
22MonroeFreedman,Lawyers' Ethics in an AdversarySystem (Indi-
anapolis: Bobbs Merrill, 1975). In this connection, currentChinese at-
tempts to turn criminal proceedings into a species of chummy
conciliationbetween the defendantand his fellow citizens can too easily
serve to conceal tyrannybehind a mask of paternalisticgoodwill.
23Kaufman,Red Tape.
24Ibid., p. 77.
25RobertFrost, "Build Soil-a Political Pastoral," in CompletePo-
ems of RobertFrost (New York: Holt, Rinehart& Winston, 1949), pp.
421-32, at p. 430.
26JohnDewey, The Questfor Certainty (New York: Putnam, 1929).
27Aristotle's"large spirited person"-commonly but wrongly trans-
lated as "great souled man," ignoring the care with which the Greeks
differentiatedbetweenanthropoi (humanbeings) and andres (men)-is
the final hero of the Nicomachean Ethics: the key feature of such a
person was, for him, the ability to act on behalf of a friend from an
understandingof that friend's own needs, wishes, and interests.
28Weare indebtedto Alan Donagan for reintroducingthe idea of the
"common morality"into philosophical ethics, in his book, The Theory
of Morality (Chicago: University of Chicago Press, 1977).
29EdwardH. Levi, Introductionto Legal Reasoning (Chicago: Uni-
versity of Chicago Press, 1948).
30Pascal'sLettresProvinciales were originally publishedin 1656-57,
duringthe trial of his friend Antoine Arnauld, whose Jansenistassocia-
tions made him a target for the Jesuits. Pascal's journalistic success
with these letters did a great deal, by itself, to bring the traditionof
"case reasoning" in ethics into discredit: so much so that the art of
casuistics has subsequentlybeen known by the name of "casuistry"-a
word which the OxfordEnglish Dictionary first records as having been
used by Alexander Pope in 1725, and whose very form, as the diction-
ary makes clear, is dyslogistic. (It belongs to the same family of Eng-
lish words as "popery," "wizardry"and "sophistry,"all of which refer
to the disreputable employment of the arts in question.)

EditorialPolicy and Manuscript Review

Myke Bayles Michael M. Kaback

The Report's manuscript pol- Westminster Institute for Ethics and Harbor-UCLAMedical Center
icy, stated on page one of Human Values Robert J. Levine
every issue, is simple enough: James Boylan Yale University School of Medicine
manuscripts must be "typed, University of Massachusetts-Amherst Alan Mazur
double-spaced, and accom-
panied by a self-addressed Gary Burke Syracuse University
stamped envelope." Actually University of Colorado Vanessa Merton
there is more to the process Thomas Chalmers New York University Law School
than that. All manuscripts, un- Mt. Sinai Medical Center Kai Neilsen
solicited and solicited, are Jessica Davis University of Calgary
acknowledged when they are North Shore University Hospital Martin Pernick
received. They are then circu- Gerald Dworkin University of Michigan
lated through our review University of Illinois at Chicago Mark Ptashne
system, which has both internal Circle Harvard University
and external reviewers. At all Harold Edgar Leon Robertson
stages of review, manuscripts Columbia University School of Law Yale University-Institution for So-
are read with the author's Lee Ehrman cial and Policy Studies
name deleted. The review proc- State University of New York, Kenneth J. Ryan
ess takes approximately eight Purchase Boston Hospital for Women
weeks. John C. Fletcher Robert Schwartz
Having informed potential National Institutes of Health University of New Mexico Law
authors of our review process, Loren R. Graham School
we would also like to thank Massachusetts Instituteof Technology Margaret O'Brien Steinfels
our colleagues at The Hastings T. John Gribble Christianity & Crisis
Center (Ronald Bayer, Daniel
University of New Mexico School Stephen Toulmin
Callahan, Arthur Caplan, of Medicine University of Chicago
Willard Gaylin, Bruce Jennings, Clifford Grobstein Donald Warwick
and Thomas Murray) as well as
University of California, San Diego Harvard Institute for International
our outside reviewers for the Development
time and careful attention they Jeanne Guillemin
Boston College Michael Weiss
gave to the manuscripts we Albert R. Jonsen Harvard Medical School
sent them. During 1980 these
University of California, San Francisco Howard Ziff
readers included: School of Medicine University of Massachusetts-Amherst

The Hastings Center 39