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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 of Principles


by STEPHENTOULMIN

in a narrowerand more personalsense. My main purpose


will be to ask: What is it about our present situationthat
If thiswerea sermon(andperhapsit is), its textwouldbe inclines us to move in that direction?By way of reply, I
the quotationattributedto H. L. Menckenthathangs in the shall arguethat, in all large industrializedsocieties and cul-
staff lounge at The HastingsCenter: tures-regardless of theireconomic and politicalsystems-
For every humanproblem,thereis a solutionthatis simple, ethics, law, and public administrationhave recentlyunder-
neat,andwrong.' gone similar historical transformations,so that all three
fields are exposedto the same kindsof pressures,face com-
Oversimplificationis a temptationto which moral philoso- mon difficulties,and sharein the same resultingpublicdis-
phers are not immune, despite all their admirableintellec- trust.And I shall try to show whatwe can learnaboutthose
tualcare andseriousness;and the abstractgeneralizationsof
theoreticalethics are, I shall argue,no substitutefor a sound sharedproblems,and aboutthe responsesthatthey call for,
traditionin practicalethics. by studyingthe commonorigins of our basic ethical, legal,
These days, public debates about ethical issues oscillate and political ideas. All my centralexamples will be con-
cernedwith the same generaltopic: the nature,scope, and
between, on the one hand, a narrowdogmatismthat con-
fines itself to unqualifiedgeneral assertionsdressed up as force of "rules" and "principles"in ethics and in law.
"mattersof principle"and, on the other, a shallow relativ- Threepersonalexperienceshelped to bringthese problems
ism thatevades all firmstandsby suggestingthatwe choose into focus for me.
our "value systems" as freely as we choose our clothes.
Both approachessufferfrom the same excess of generality. Three Personal Experiences
The rise of anthropologyand the other human sciences in Human Subjects Research. For several years in the
the early twentiethcenturyencourageda healthy sense of
mid-1970s, I worked as a staff member with the National
social and cultural differences; but this was uncritically Commissionfor the Protectionof HumanSubjectsof Bio-
takenas implyingan end to all objectivityin practicaleth- medical and BehavioralResearch, which was established
ics. The subsequentreassertionof ethical objectivity has
by the U.S. Congress, with the task of reportingand mak-
led, in turn, to an insistence on the absolutenessof moral
ing recommendationsaboutthe ethics of using humansub-
principlesthat is not balancedby a feeling for the complex jects in medical and psychological research. Eleven
problemsof discriminationthat arise when such principles commissioners-five of them scientists, the remainingsix
are applied to particularreal-life cases. So, the relativists
have tendedto overinterpretthe need for discriminationin lawyers, theologians, and other nonscientists-were in-
structedto make recommendationsaboutpublicly financed
ethics, discretion in public administration,and equity in human experimentation:in particular,to determineunder
law, as a license for generalpersonalsubjectivity.The ab- what conditions subjects belonging to certain vulnerable
solutistshave respondedby denying all real scope for per-
sonal judgment in ethics, insisting instead on strict groups(such as young childrenandprisoners)could partici-
constructionin the law, on unfeeling consistencyin public pate in such researchwithoutmoral objection.2
Before the Commissionbegan work, many onlookersas-
administration,and-above all-on the "inerrancy"of sumedthatits discussionswould degenerateinto a Babel of
moral principles. rival opinions. One worldly commentatorremarkedin the
I proposeto concentratemy attentionon this last phenom-
New England Journal of Medicine, "Now (I suppose) we
enon-the revival of a tyrannicalabsolutismin recent dis- shall see mattersof eternalprincipledecidedby a six to five
cussions aboutsocial and personalethics. I find it reflected vote."3 But things did not work out that way. In practice,
in attitudestowardpolitics, public affairs, and the adminis-
the commissionerswere never split along the line between
trationof justice, as much as towardquestionsof "ethics" scientistsand nonscientists.In almostevery case they came
close to agreementeven aboutquite detailedrecommenda-
STEPHEN TOULMIN is professor, Committee on Social
tions-at least for so long as their discussions proceeded
Thoughtand departmentofphilosophy, Universityof Chicago.
This article is adaptedfrom a presentation at The Hastings taxonomically,takingone difficultclass of cases at a time
Center's General Meeting held on June 19, 1981. It was also and comparing it in detail with other clearer and easier
presented, in a somewhat different version, at Osgoode Hall
classes of cases.
Law School and will be published in that version in the Os- Even when the Commission'srecommendationswere not
goode Hall LawJournal. unanimous,the discussionsin no way resembledBabel:the

The Hastings Center 31


commissionerswere never in any doubt what it was that statutoryrestrictionswere enactedin the yearsaround1825.
they were not quite uncaniimousabout. Babel set in only It was also the approachadopted by the U.S. Supreme
afterwards. When the eleven individual commissioners Courtin the classic case, Roe v. Wade; and, most impor-
asked themselves what "principles" underlay and sup- tant, it was the approachclearlyspelled out by ThomasAq-
posedly justified their adhesion to the consensus, each of uinas, whose position was close to that of the common law
them answered in his or her own way: the Catholics ap- andthe SupremeCourt.(He acknowledgedthatthe balance
pealed to Catholic principles, the humanists to humanist of moral considerationsnecessarilytilts in differentdirec-
principles,and so on. They could agree; they could agree tions at differentstages in a woman'spregnancy,with cru-
whatthey were agreeingabout;but, apparently,they could cial changes beginningaroundthe time of "quickening."5)
not agree why they agreed about it. On the otherhand, much of the public rhetoricincreasingly
This experience promptedme to wonder what this final came to turn on "mattersof principle." As a result, the
"appealto principles"really achieved. Certainlyit did not abortiondebatebecame less temperate,less discriminating,
add any weight or certitudeto the commissioners'specific and above all less resolvable. Too often, in subsequent
ethical recommendations,for example, about the kind of years, the issue has boiled down to pure head-butting:an
consent proceduresrequiredin biomedical researchusing embryo'sunqualified"rightto life" being pitted against a
five-year-oldchildren. They were, quite evidently, surer woman'sequallyunqualified"rightto choose." Those who
about these shared, particularjudgments than they were have insistedon dealing with the issue at the level of high
aboutthe discordantgeneralprincipleson which, in theory, theory thus guaranteethat the only possible practicalout-
their practicaljudgmentswere based. If anything, the ap- come is deadlock.
peal to principlesunderminedthe recommendationsby sug-
gesting to onlookers that there was more disharmonythan Social WelfareBenefits. My perplexitiesabout the force
ever showed up in the commissioners'actual discussions. and value of "rules"and "principles"were furthersharp-
So, by the end of my tenure with the Commission I had ened as the result of a television news magazineprogram
begun to suspectthatthe point of "appealingto principles" about a handicappedyoung woman who had difficulties
was somethingquiteelse: not to give particularethicaljudg- with the local Social Security office. Her Social Security
ments a more solid foundation,but ratherto squarethe col-
lective ethical conclusions of the Commission as a whole paymentswere not sufficientto cover her rent and food, so
she started an answering service, which she operated
with each individualcommissioner'sothernonethicalcom-
mitments. So (it seemed to me) the principlesof Catholic throughthe telephoneat her bedside. The income from this
ethics tell us more about Catholicismthan they do about service-though itself less thana living wage-made all the
difference to her. When the local Social Security office
ethics, the principles of Jewish or humanist ethics more heardabout this extra income, however, they reducedher
aboutJudaismor humanismthanaboutethics. Such princi- benefitsaccordingly;in addition,they orderedher to repay
ples serve less as foundations,adding intellectualstrength some of the money she had been receiving. (Apparently,
or force to particularmoral opinions, than they do as cor-
ridorsor curtainwalls linking the moralperceptionsof all they regardedher as a case of "welfarefraud.")The televi-
sion reporteradded two final statements.Since the report
reflective human beings, with other, more general posi- had been filmed, he told us, the young woman, in despair,
tions-theological, philosophical, ideological, or Welt- had takenher own life. To this he addedhis personalcom-
anschaulich. ment that "there should be a rule to preventthis kind of
thing from happening."
Abortion. The years of the NationalCommission'swork Notice that the reporterdid not say, "The local office
were also years duringwhich the moralityof abortionbe- should be given discretionto waive, or at least bend, the
came a matterof publiccontroversy.In fact, the U.S. Con- existing rules in hard cases." What he said was, "There
gress establishedthe Commission in the backwash of the should be an additional rule to prevent such inequities in
SupremeCourt'srulingon the legality of abortion,follow- the future."Justice, he evidently believed, can be ensured
ing a publicdisputeaboutresearchon the humanfetus. And only by establishingan adequatesystem of rules, and in-
before long the public debateaboutabortionacquiredsome justice can be preventedonly by adding more rules.
of the same puzzling features as the proceedings of the Hence, the questions that arise from these experiences:
Commissionitself. On the one hand, there were those who Whatforce andfunctiondo rulesor principlestrulypossess,
could discuss the moralityof abortiontemperatelyand with eitherin law or in ethics?Whatsocial andhistoricalcircum-
discrimination,acknowledgingthat here, as in other ago- stancesmakeit most naturalandappropriateto discuss legal
nizing humansituations, conflicting considerationsare in- and ethical issues in the languageof "rules" and "princi-
volved and that a just, if sometimespainful, balancehas to ples"? Why are our own contemporarylegal and ethical
be struckbetween differentrightsand claims, interestsand discussionsso preoccupiedwith rules and principles?And
responsibilities.4That temperateapproachunderlaytradi- to what extent would we do betterto look for justice and
tionalcommon law doctrinesaboutabortionbefore the first moralityin other directions?

32 The Hastings Center Report, December 1981


Rules in Roman Law This state of affairs did not last. Long before the first
Imperialcodification,Romanlaw began to develop the full
Far from playing an indispensablepart in either law or apparatusof "rules"with which we ourselves are familiar.
ethics, "rules" have only a limited and conditionalrole. Stein suggests that five sets of factors contributedto this
The currentvogue for rules and principlesis the outcomeof new relianceon regulae.8 First, as the city grew, the case
certainpowerful factors in recent social history;but these load increasedbeyond what the pontiffs themselves could
factorshave always been balancedagainstcounterweights. manage. Juniorjudges, who did not possess the same im-
Justice has always requiredboth law and equity, while plicit trustas the pontiffs, were broughtin to resolve dis-
moralityhas always demandedboth fairness and discrimi- putes; so the consistency of their rulings had to be
nation. When this essential duality is ignored, reliance on "regularized."Second, with the rise of lawyeringas a pro-
unchallengeableprinciplescan generate,or become the in- fession, law schools were set up and regulae were articu-
strumentof, its own subtle kind of tyranny. latedfor the purposeof teachingthe law. Discretion,which
had restedearlieron the personalcharactersof the pontiffs
My reading soon led me back to Peter Stein's Regulae
Juris, which traces the developmentof the concept of a themselvesand which is not so easy to teach, began to be
"rule" in Roman law from its beginnings to the modern displacedby formalrulesandmoreteachableargumentative
era.6His accountof the earliestphases of Roman law was skills. Third, Rome acquiredan empire, and foreign peo-
for me the most strikingpart. For the first three hundred ples came underthe city's authority.Their systems of cus-
years of Roman history, the legal system made no explicit tomary law had to be put into harmonywith the Roman
use of the conceptof rules. The College of Pontiffsactedas system, and this could be done only by establishinga con-
the city's judges, and individualpontiffs gave their adjudi- cordancebetween the "rules"of differentsystems. Fourth,
cations on the cases submittedto them. But they were not the empireitself developeda bureaucracy,which could not
requiredto cite any general rules as justificationsfor their operateexcept on the basis of rules. Finally, the intellectual
decisions. Indeed,they were not requiredto give reasonsat discussionof law was pursuedin the context of Greekphi-
all. Their task was not to argue, but ratherto pontificate. losophy. Although Cicero, for example, was a practicing
How was this possible?How can any system of law oper- attorney,he was also a philosophicalscholarwith a profes-
ate in the absence of rules, reasons, and all the associated sionalinterestin the Stoic doctrineof the logos, or "univer-
sal reason."
apparatusof bindingforce and precedent?Indeed, in such a
situationcan we say a truesystemof law exists at all? Those What followed the resulting proliferationof rules and
questions require us to consider the historical and an- laws is common knowledge. First, a functionaldifferentia-
thropologicalcircumstancesof early Rome. InitiallyRome tion grew up betweentwo kindsof issues. On the one hand,
was a small and relatively homogeneous community, therewere issues thatcould be decidedby applyinggeneral
whose members shared a correspondinglyhomogeneous rules or laws, on the basis of the maxim that like cases
traditionof ideas aboutjustice and fairness, propertyand shouldbe treatedalike. On the otherhand,therewere issues
propriety, a tradition having more in common with Sir thatcalled for discretion,with an eye to theparticular fea-
Henry Maine's ideas about traditional"customarylaw" turesof each case, in accordancewith the maxim that sig-
than with the "positive law" of John Austin'sProvince of nificantlydifferentcases should be treateddifferently.This
JurisprudenceDetermined.7 In any such community the functionaldifferentiationbecame the ancestorof our own
functionsof adjudicationtend to be morearbitralthanregu- distinctionbetween legal and equitablejurisdiction. Sec-
latory.Like laborarbitrators today, the judges will not be as ond, the EmperorConstantinedecided as a matterof impe-
sharply bound by precedent as contemporaryhigh court rial policy to bringequitablejurisdictionunderhis personal
judges. So the disputes that the pontiffs adjudicatedwere controlby reservingthe equitablefunctionto his own per-
typically ones about which the traditionalconsensus was sonal court and chancellor.Out in the public arena,judges
ambiguous;the balance of rights and obligations between were given the menial task of applying general rules with
the partiesrequiredthejudgmentcall of a trustedand disin- only the minimum of discretion. Once legal proceedings
terestedarbitrator.In these marginalcases all that the arbi- were exhausted, the aggrieved citizen could appeal to the
trator may be able to say is, "Having taken all the Emperoras parens patriae ("fatherof the fatherland")for
circumstancesinto account,I find that on this particularoc- the benevolentexercise of clemency or equity. Politically,
casion it would, all in all, be more reasonableto tilt the this divisionof laborcertainlydid the Emperorno harm;but
scale to A ratherthanto B." This rulingwill rest, not on the it also sowed the firstseeds of public suspicionthatthe Law
applicationof generallegal rules, but ratheron the exercise is one thing, Justice another.9
of judicial discriminationin assessing the balance of par- Carriedover into the moder English-speakingworld, the
ticulars.Initially,"pontificating"did not mean laying down resulting division between courts of law and courts of
the law in a dogmatic manner. Rather, it meant resolving equity is familiar to readersof Charles Dickens. And al-
marginaldisputesby an equitablearbitration,and the pon- thoughduringthe twentiethcenturymost Anglo-American
tiffs had the trustof their fellow citizens in doing so. jurisdictionshave merged legal and equitablefunctions in

The Hastings Center 33


the same courts,10it is still widely the case that equitable In all three fields, we need to be remindedthat equity
remediescan be sought only in cases where legal remedies requiresnot the impositionof uniformityor equalityon all
are unavailableor unworkable-so that in this respect the relevantcases, but ratherreasonablenessor responsiveness
dead hand of Constantinestill rules us from the grave. (epieikeia) in applyinggeneral rules to individualcases.14
Equity means doing justice with discretionaround, in the
intersticesof, and in areas of conflict between our laws,
The Ethics of Strangers
rules, principles, and other general formulas. It means
Life in late-twentieth-century industrialsocieties clearly being responsiveto the limits of all such formulas, to the
has more in common with life in ImperialRome thanit has special circumstancesin which one can properlymake ex-
with the Rome of Horatiusat the Bridge or with Mrs. Gas- ceptions, and to the trade-offsrequiredwhere differentfor-
kell's Cranford. Our cities are vast, our populationsare mulas conflict. The degree to which such marginal
mixed and fragmented,our public administrationis bureau- judgmentscan be regularizedor routinizedremainslimited
cratic, our jurisdictions (both domestic and foreign) are today, just as it was in early Rome. Faced with the task of
manyandvaried.As a result,the moralconsensusandcivic balancing the equities of different parties, a judge today
truston which the pontificateof early Rome dependedfor may well be guidedby previousprecedents;but these prece-
its generalrespect and efficacy often appearto be no more dents only illuminatebroad maxims, they do not invoke
thana beguilingdream.The way we live now, people have formalrules.15Likewise, professionalpracticemay be de-
come to value uniformityabove responsiveness,to focus on scribedin cut-and-driedterms as a matterof "routineand
law at the expense of equity, and to confuse "the rule of accepted"proceduresonly in the artificialcontextof a mal-
law" with a law of rules. Yet the balancebetween law and practicesuit. In the actualexercise of his profession, a sur-
equitystill needs to be struck,even if new ways need to be geon, say, may sometimes simply have to use his or her
foundthatanswerournew needs. Fromthis pointon, I shall own best judgment in deciding how to proceed conscien-
workmy way towardthe question:how, in our actualsitua- tiously. Finally, in ethics, moralwisdom is exercisednot by
tion, can that balance best be redressed? those who stick by a single principlecome what may, abso-
In law, in ethics, and in public administrationalike, there lutely and withoutexception, but ratherby those who un-
is nowadaysa similarpreoccupationwith generalprinciples derstand that, in the long run, no principle-however
and a similardistrustof individualdiscretion.In the admin- absolute-can avoid runningup againstanotherequallyab-
istrationof social services, the demandfor equalityof treat- solute principle;and by those who have the experienceand
ment makes us unwilling to permit administratorsto discriminationneeded to balanceconflictingconsiderations
"temperthe wind to the shorn lamb"-that strikes us as in the most humaneway.16
unfair,and thereforeunjust.1 (The equationof justice with By looking at the effects of changing social conditions
fairness is thus a two-edged sword.) In the professions, a and modes of life on our ethical perceptions,I believe we
widespreadfear that professionalsare takingunfairadvan- can best hit on the clues that will permitus to unravelthis
tage of theirfiduciarypositionshas contributedto the recent whole tangleof problems.A centuryago in Anna Karenina
wave of malpracticesuits. In the courts, judges are given Leo Tolstoy expresseda view which, thoughin my opinion
less and less room to exercise discretion,and many lawyers exaggerated,is none the less illuminating.Duringhis life-
view juries as no more trustworthythan judges; the more time Tolstoy lived to see the abolitionof serfdom,the intro-
they are both kept in line by clear rules, or so it seems, the ductionof railways,the movementof populationaway from
better.'2As for publicdiscussionsof ethics, the recognition the countryto the cities, and the consequentemergenceof
of genuinemoralcomplexities,conflicts, andtragedies,that modemcity life; andhe continuedto have deep reservations
can be dealt with only on a case-by-case basis, is simply aboutthe possibilityof living a trulymorallife in a moder
unfashionable.Victory in public argumentgoes, rather,to city. As he saw matters,genuinely "moral"relationscan
the person with the more imposing principle. Above all, exist only between people who live, work, and associate
many people involved in the currentdebate seem to have together:inside a family, between intimatesand associates,
forgottenwhat the term "equity"actuallymeans. They as- within a neighborhood.The naturallimit to any person's
sume that it is just a literarysynonymfor "equality."'3So, moral universe, for Tolstoy, is the distancehe or she can
a demand for the uniform applicationof public policies walk, or at most ride. By taking the train, a moral agent
leads to a submergingof the discretionaryby the rigorous, leaves the sphereof trulymoralactionsfor a worldof stran-
the equitableby the equal. Faced with judicial injustices, gers, towardwhom he or she has few real obligationsand
we react like the television reporter, declaring, "There with whom dealings can be only casual or commercial.
oughtto be a law againstit," even where it would be more Whenever the moral pressuresand demands become too
appropriateto say, "In this particularcase, the law is mak- strongto bear, Tolstoy has Anna go down to the railway
ing an ass of itself." The same applies to the operationof station and take a train somewhere, anywhere. The final
our bureaucracies,and to the emphasis on principles in ironyof Tolstoy's own painfullife was thathe finallybroke
moraljudgments. away from his home and family, only to die in the local

34 The Hastings Center Report, December 1981


stationmaster's office.17 Matters of state policy and the like, gers, indeed, equality would be about the only virtueleft.
in Tolstoy's eyes, lay quite outside the realm of ethics. Do not misunderstandmy position. I am not taking a
Throughthe figure of ConstantinLevin, he made clear his nostalgia trip back to the Good Old Days. The world of
skepticismaboutall attemptseitherto turnethics into a mat- neighborlinessand forced intimacy, of both geographical
ter of theory or to make political reform an instrumentof and social immobility, had its vices as well as its virtues.
virtue.18 Jane Austen's caricatureof Lady Catherinede Burgh in
What Tolstoy rightly emphasizedis the sharpdifference Pride and Prejudice remindsus that purchasingequity by
that exists between our moral relations with our families, submittingto gross condescensioncan make its price too
intimates,and immediateneighborsor associates, and our dear:
moralrelationswith completestrangers.In dealingwith our
Godblessthe Squireandhis relations,
children, friends, and immediatecolleagues, we both ex- andkeepus in ourproperstations.
pect to-and are expected to-make allowances for their
individualpersonalitiesand tastes, and we do our best to Any biographyof Tolstoy remindsus thathis world, too,
time our actionsaccordingto our perceptionof theircurrent hada darkerside. Those who are seducedby his admiration
moods and plans. In dealing with the bus driver, the sales for the moral wisdom of the newly emancipatedpeasantry
clerkin a departmentstore, the hotel barber,and othersuch will find an antidote in FrederickDouglass's memoirs of
casual contacts, there may be no basis for making these slave life on the Marylandshore. Nor am I deploringapart-
allowances,and so no chanceof doing so. In these transient ment buildings and privatecars. People usually have rea-
encounters,our moral obligations are limited and chiefly sons for living as they do, and attackingmodernityin the
negative-for example, to avoid acting offensively or vio- nameof the moralityof an earliertime is an act of despera-
lently. So, in the ethics of strangers,respectfor rules is all, tion, like buildingthe BerlinWall. No, my questionis only:
and the opportunitiesfor discretionare few. In the ethics of If we accept the moder world as it is-apartment build-
intimacy,discretionis all, andthe relevanceof strictrulesis ings, privatecars, and all-how can we strike the central
minimal.19For Tolstoy, of course, only the ethics of inti- balance between the ethics of intimatesand the ethics of
macy was properlycalled "ethics"at all-that is why I de- strangers,between uniformityof treatmentand administra-
scribed his view as exaggerated. But in this respect the tive discretion,and between equity and law, in ways that
ethics of JohnRawls is equally exaggerated,though in the answerour contemporaryneeds?
opposite direction. In our relations with casual acquaint- To begin with the law: currentpublicstereotypesfocus on
ances and unidentifiedfellow citizens, absoluteimpartiality the shortcomingsof the adversaryprocess, but what first
may be a primemoraldemand;but among intimatesa cer- needs to be explainedis just wherethe adversarysystemhas
tain discreet partialityis, surely, only equitable, and cer- gone astray, and in what fields of law we should be most
tainly not unethical. So a system of ethics that rests its concerned to replace it. That should not be hard to do.
principleson "the veil of ignorance"may well be "fair," Given thatwe handleour moralrelationswith intimatesand
but it will also be-essentially-an ethics for relationsbe- associates differentlyfrom our moral relationswith stran-
tween strangers.20 gers, is not some similardifferentiationappropriatebetween
ourlegal relationswith strangers,on the one hand, andwith
The Stresses of Lawsuits intimates, associates, and close family members on the
other?
Seeing how Tolstoy felt abouthis own time, what would Even in the United States, the homelandof the adversary
he have thoughtaboutthe life we lead today?The effects of system, at least two types of disputes-labor-management
the railways, in blurringthe boundarybetween the moral conflicts and the renegotiationof commercialcontracts-
world of the immediatecommunityand the neutralworld aredealtwith by using arbitrationor conciliationratherthan
beyond, have been only multipliedby the privatecar, which confrontation.21 That is no accident. In a criminalprosecu-
breaksthat boundarydown almost completely. Living in a tion or a routinecivil damagesuit arisingout of a car colli-
high-riseapartmentbuilding, takingthe car from its under- sion, the partiesare normallycompletestrangersbeforethe
groundgarageto the supermarketandback, the moder city proceedingsandhave no stakein one another'sfuture,so no
dweller may sometimes wonderwhetherhe has any neigh- harmis done if they walk out of the courtvowing never to
bors at all. For many of us, the sphere of intimacy has set eyes on each other again. By contrast,the partiesto a
shrunkto the nuclear family, and this has placed an im- laborgrievancewill normallywish to continueworkingto-
mense strainon family relations.Living in a world of com- getherafterthe adjudication,while the disputantsin a com-
parativestrangers,we find ourselvesshorton civic trustand mercial arbitrationmay well retain or resume business
increasinglyestrangedfrom our professionaladvisors. We dealingswith one anotherdespitethe presentdisagreement.
are less inclinedto give judges and bureaucratsroom to use In cases of these kinds, the psychological stresses of the
theirdiscretion,and moredeterminedto obtainequal (if not adversarysystem can be quite destructive:by the time an
always equitable)treatment.In a world of complete stran- enthusiasticlitigatingattorneyhas done his bit, furtherlabor

The Hastings Center 35


I --_ - I I- I IL- I I

relations or commercial dealings may be psychologically zations, like those in Britainwhich were charminglyknown
impossible. So in appraisingdifferent kinds of court pro- as "friendlysocieties." But by this time things were begin-
ceedings, we need to considerhow particulartypes of judi- ning to change. A friendly clergymanis one thing, but a
cial episodes fit into the larger life histories of the friendlysociety is more of an anomaly:in due courseirreg-
individualswho are parties to them, and what impact the ularitiesin the administrationof those organizations-like
form of proceedingscan have on those life histories. those in some tradeunion pension funds today-provoked
A lawsuit that pits the full power of the state against a governmentsupervision, and a Registrarof Friendly So-
criminal defendant is one thing: in that context, Monroe cieties was appointedto keep an eye on them.
Freedmanmay be rightto underlinethe meritsof the adver- From that point on, the delivery of social services has
sary mode, and the positive obligationsof zealous defense become ever more routinized, centralized, and subject to
advocacy.22A civil suit that pits colleagues, next-door bureaucraticroutine. It should not take horrorstories, like
neighbors,or family membersagainsteach otheris another thatof the handicappedyoung woman'sansweringservice,
thing: in that context resort to adversaryproceedingsmay to makeus thinkagainaboutthe whole projectof delivering
only make a bad situationworse. So, reasonablyenough, humanservicesthrougha bureaucracy:one only has to read
the main locus of dissatisfactionwith the adversarysystem Max Weber.The imperativesof bureaucraticadministration
is those areasof humanlife in which the psychologicalout- require determinate procedures and full accountability;
comes are most damaging:family law, for example. By the while a helping hand, whether known by the name of
time that the father, mother, and children involved in a "charity"or "social services," can be trulyequitableonly if
custody dispute have all been zealously representedin it is exercised with discretion, on the basis of substantive
court, the bad feelings fromwhich the suit originallysprang andinformedjudgmentsaboutneed ratherthanformalrules
may well have become irremediable.It is just such areasas of entitlement.
family law thatothernations(such as West Germany)have What might be done, then, to counterthe rigors of bu-
chosen to handle by arbitrationratherthan litigation, in reaucracyin this field? Or shouldlate-twentieth-century so-
chambers ratherthan in open court, so providing much cieties look for other ways of lending a collective hand to
more room for discretion. those in need? In an exemplaryapologia for bureaucracy,
I am suggesting, then, that a system of law consisting HerbertKaufmanof the Brookings Institutionhas put his
wholly of rules would treatall the partiescoming before it fingeron manyof the key points.23If we findpublic admin-
in the ways appropriateto strangers.By contrast,in legal istration today complex, unresponsive, and procedure-
issues that arise between parties who wish to continue as bound, he arguesthat this is almost entirelyour own fault.
close associates on an intimate or familiar level, the de- These defects are directconsequencesof the demandsthat
mands of equality and rule conformity lose their central we ourselveshave placed on our public servantsin a situa-
place. There, above all, the differencesbetweenthe desires, tion increasinglymarkedby diversity, democracy,and dis-
personalities,hopes, capacities,andambitionsof the parties trust. Since we are unwilling to grant discretion to civil
mostneed to be takeninto account;and only an adjudicator servantsfor fear that it will be abused, we leave ourselves
with authorityto interpretexisting rules, precedents, and with no measure for judging administrators'performance
maximsin the light of, and in responseto, those differences otherthanequality. As Kaufmanremarks,"If people in one
will be in a positionto respectthe equities of all the parties regiondiscoverthatthey are treateddifferentlyfrompeople
involved. in otherregionsunderthe same program,they are apt to be
resentfuland uncooperative."24
Hence there arises a "generalconcernfor uniformappli-
Reviving the Friendly Society
cationof policy," which can be guaranteedonly by making
In public administration,especially in the field of social the rulebookeven more inflexible. Yet is our demandfor
services, the crucial historicalchanges were more recent, equality and uniformityreally so unqualifiedthat we are
yet they appearmuch harderto reverse. Two centuriesago determinedto purchaseit at any price? If we were certain
most of what we now call the social services-then known, thatour own insistenceon absolutefairnessmadethe social
collectively, as "charity"-were still dispensedthroughthe services dehumanizingand dehumanized, might we not
churches.Local ministersof religionwere generallytrusted consideropting for other, more equitable procedureseven
to performthis duty equitablyand conscientiously;and in though their outcomes might be less equal?
decidingto give more to (say) Mrs. SmiththanMrs. Jones, Alternatively,perhapswe should reconsiderthe whole-
they were not strictlyanswerableto any supervisor,still less sale nationalizationof charitythatbegan in the early twen-
bound by a book of rules. (As with the Squirearchy,of tiethcentury.Plentyof uncorruptprivatepensionfundsstill
course, this arrangementhad its own abuses:the Rev. Mr. operatealongsidegovernmentalretirementandold-agepen-
Collins could be as overbearingin his own way as Lady sion schemes, anda few communallybased systemsof wel-
Catherinede Burgh.) Even a hundredyears ago many such fare and charity remain trusted just because their
charitablefunctionswere still carriedon by privateorgani- accountabilityis to a particularcommunity.Among the Is-

36 The Hastings Center Report, December 1981


_ I

mailis, for instance, the world-wide branch of Islam of that "working-classsolidarity"would, in effect, create a
which the Aga Khanis the head, tithingis still the rule, and vast and cohesive extended family within which the dis-
no promising high school graduatemisses the chance of possessed would find release from psychologicalas well as
going to college merelybecausehe comes from a poorfam- from politicaland economic oppression.But by now, alas,
ily. Despite governmentalprograms,that is no longer true the evidence of history seems to show that awareness of
of the United States. So perhapswe have let ourselvesbe- shared injuries sets different groups against one another
come too skeptical too soon about the friendliness of quiteas often as it unitesthem. For some of us, the bondsof
"friendlysocieties," and we shouldtake more seriouslythe professionalassociationare as powerfulas any. The physi-
possibility of reviving social instrumentswith local roots, cians of Tarrytownor the attorneysof Hyde Parkprobably
which do not need to insist on rigidly rule-governedproce- have a close understandingof, feeling for, and even trustin
dures. That is of course a large "perhaps." The social one another;and despite all other reservationsabout my
changesthatled to the nationalizationof charityare power- fellow academics, I do still have a certainimplicit trustin
ful and longstanding,and thus far they have shown little theirprofessionalresponsibilityand integrity.So each year,
sign of weakening. Given a choice, people may prefer to withoutany serious anxiety, I vote for colleagues whom I
continueputtingup with bureaucraticforms and procedures have nevereven met to serve on the boardsthatmanagemy
that they can grumbleat with impunityif in this way they pension funds. If it were proved that those elected repre-
can avoid puttingthemselvesat the mercyof social or com- sentativeshad been milkingthe premiumsand saltingthem
munal relationshipsthat they may find onerous. away in a Swiss bank, that revelationwould shake up my
moral universe more radicallythan any dishonestyamong
Frail Hopes and Slender Foundations public figureson the nationallevel.
True, these are frailhopes andprovideonly slenderfoun-
In the field of ethics, all these difficultiesare magnified. dationsto build on. Yet, in the realm of ethics, frail hopes
There I have one firm intellectual conviction, and one and slender foundationsmay be what we should learn to
somewhatfrailerhope on the social level. live with as muchbetterthannothing.And thatbringsme to
In a 1932 poem RobertFrost wrote: the intellectualpoint about which I am much more confi-
Don'tjoin too manygangs.Joinfew if any. dent. If the cult of absoluteprinciplesis so attractivetoday,
Jointhe UnitedStates,andjoin the family. thatis a sign thatwe still findit impossibleto breakwith the
Butnot muchin between,unlessa college.25
"questfor certainty"that John Dewey tried so hardto dis-
Frost, in his curmudgeonlyway, capturesthat hostility credit.26Not that we needed Dewey to point out the short-
towardcommunalties and restraintswhich, since Tolstoy's comings of absolutism.Aristotle himself had insisted that
day, has continuedto undermineour "intermediateinstitu- there are no "essences" in the realm of ethics, and so no
tions" or "mediatingstructures."Towardthe nuclearfam- basis for any rigorous"theory"of ethics. Practicalreason-
ily and the nation, people do indeed still feel some natural ing in ethics, as elsewhere, is a matter of judgment, of
loyalty; "butnot much in between, unless a college." Dur- weighing different considerations against one another,
ing the last thirtyyears, even the nation-statehas lost much nevera matterof formaltheoreticaldeductionfrom strictor
of its mystique,leaving the familyexposed to stressesthatit self-evidentaxioms. It is a task less for the clever arguer
can hardlysupport.It is my frail social hope that we may than for the anthropos megalopsychos, the "large-spirited
find some new ways of shapingother intermediateinstitu- human being."27
tions toward which we can develop a fuller loyalty and It was not for nothing,then, thatthe membersof the Na-
commitment:associations larger than the nuclear family, tional Commission for the Protectionof Human Subjects
but not so large that they defeat in advancethe initial pre- were able to agreeaboutthe ethicalissues forjust so long as
sumptionthatour fellow membersare trustworthy.For it is they discussedthose issues taxonomically.In doing so they
only in that context, I suspect, that the ethics of discretion wererevivingthe older, Aristotelianproceduresof the casu-
and intimacycan regainthe groundit has lost to the ethics ists and rabbinicalscholars, who understoodall along that
of rules and strangers. in ethics, as in law, the best we can achieve in practiceis for
Wheremight we look for the beginningsof such associa- good-hearted,clear-headedpeople to triangulatetheir way
tions?Traditionallytheir loci were determinedby religious across the complex terrainof morallife and problems. So,
andethnic ties, and these are still sometimesused construc- starting from the paradigmaticcases that we do under-
tively to extend the range of people's moral sympathies stand-what in the simplestsituationsharmis, and fairness,
beyond the immediatehousehold. But we scarcely need to and cruelty, and generosity-we must simply work our
look as far as Ulsteror Lebanonto see the otherside of that way, one step at a time, to the more complex and perplex-
particularcoin. Membershipin schools and colleges has ing cases in which extremelydelicatebalancesmay have to
some of the same power, as Frost grudgingly admits, be struck.For example, we mustdecide on just whatcondi-
thoughit is a power thattends to operateexclusively rather tions, if any, it wouldbe acceptableto injecta samplegroup
thangenerously.The greatethicalhope of the Marxistswas of five-year-oldchildrenwith an experimentalvaccine from

The Hastings Center 37


Y

which countless other childrenshould benefit even though Enoch PrattLibraryin Baltimorehas been unableto locate it in Menck-
the risks fall on those few individualsalone. Ethicalargu- en's works.
2The work of the U.S. National Commission for the Protectionof
mentationthus makesmost effective progressif we thinkof Human Subjects of Biomedical and Behavioral Research will be dis-
the "commonmorality"in the same way as we thinkabout cussed more fully in a paperto be publishedin a forthcomingHastings
the common law:28if, for instance, we develop our percep- Centervolume on the "closure"of technical and scientific discussions.
3So, at any rate, currentlegend reports. On the other hand, having
tion of moral issues by the same kind of progressivetri- workedthroughthe files of the Journal for 1974-75 withoutfindingany
angulationthat has extendedcommon law doctrinesof tort articleor editorialon the subject, I am inclined to suspect that this may
into the areas, first of negligence and later of strict lia- have been a casual remarkby the late Dr. FranzIngelfinger,the distin-
guished editor of the periodical.
bility.29 4Daniel Callahan,Abortion:Law, Choice and Morality (New York:
Meanwhile, we must remainon guardagainstthe moral Macmillan, 1970);JohnT. Noonan, Jr., ed., The Moralityof Abortion:
enthusiasts.In theirdeterminationto nail theirprinciplesto Legal and HistoricalPerspectives (Cambridge,Mass.: HarvardUniver-
sity Press, 1970).
the mast, they succeed only in blinding themselves to the 5ThomasAquinas, CommentariumLibro Tertio Sententiarum,D.3,
equities embodied in real-life situations and problems. Q.5, A.2, Solutio.
6PeterStein, Regulae Juris (Edinburgh:EdinburghUniversity Press,
Their willingness to legislate morality threatensto trans- 1966), pp. 4-10.
form the most painful and intimatemoral quandariesinto 7Lloyd A. Fallers, Law without Precedent (Chicago: University of
adversarialconfrontationsbetween strangers.To take one Chicago Press, 1969): see also the classical discussion by Sir Henry
Maine in Lectures on the Early History of Institutions(1914).
example, by reintroducinguncompromisinglegal restraints 8Stein, pp. 26ff, 80-82, 124-27.
to enjoin all proceduresof abortionwhatever,they are pit- 9Forthe subsequentinfluenceof this division on the Anglo-American
ting a woman against her own newly implantedzygote in legal tradition, see (e.g.) John H. Baker, An Introductionto English
some ghastly parody of a landlord-tenantdispute. This Legal History (Toronto and London: Butterworths,1979).,
'?Politicallyspeaking, of course, the decline of monarchicalsover-
harshinflexibilitysets the presentday moralenthusiastsin eignty made the formal division of law from equity less functional;so it
is no surprisethat the nineteenthcentury saw its abolition both in the
sharpcontrastto Aristotle'santhropoimegalopsychoi, and constitutionalmonarchyof Englandand also in the republicanUnited
recalls Tolstoy's portraitof Alexei Karenin'sassociate, the States.
Countess Ivanovna, who in theory was a supporterof all 1John Rawls, A Theoryof Justice (Cambridge,Mass.: HarvardUni-
fashionablegood causes but in practice was ready to act versity Press, 1971)is only the most recent systematicexposition of this
position, which has become something of a philosophical com-
harshlyand unforgivingly. monplace,at any rate since Kantraisedthe issue of "universalizability"
When Pascal attackedthe Jesuit casuists for being too in the late eighteenthcentury.
ready to make allowances in favor of penitentswho were '2See, e.g., Kenneth C. Davis, Discretionary Justice (Urbana, Ill.,
Univ. of Illinois Press, 1969); Ralph A. Newman, Equity and Law
rich or highborn,he no doubt had a point.30But when he (Dobbs Ferry, NY: Oceana, 1961);and particularlyRalph A. Newman,
used this point as a reasonfor completelyrejectingthe case ed., Equity in the World'sLegal Systems (Brussels: Bruylant, 1973).
method in ethics, he set the bad example that is so often '3This seems to be true even of so perceptive an author as Herbert
followed today:assumingthatwe must withdrawdiscretion Kaufman, in his ingenious tract, Red Tape: its Origins, Uses and
Abuses (Washington, D.C.: Brookings Institution, 1977), pp. 76-77:
entirely when it is abused and impose rigid rules in its "Quite apartfrom protective attitudestoward specific programs, gen-
place, insteadof inquiringhow we could adjustmattersso eral concern for uniform applicationof policy militates against whole-
sale devolution. Not that uniformity automatically assures equity or
thatnecessarydiscretionwould continueto be exercised in
equality of treatment...."
an equitableand discriminatingmanner.I vote withouthes- 14Thelocus classicus for the discussion of the notion of epieikeia (or
itationagainstPascal and for the Jesuits and the Talmudic "equity") is Aristotle's Nicomachean Ethics, esp. 1136b30-1137b32.
See also Max Hamburger'suseful discussion in Morals and Law: the
scholars.We do not need to go as far as Tolstoy and claim Growth of Aristotle's Legal Theory (New Haven: Yale University
that an ethics modeled on law ratherthan on equity is no Press, 1951).
ethics at all. But we do need to recognize that a morality 'Henry L. McClintock,Handbookof the Principles of Equity, 2nd
ed. (St. Paul, Minn.: West, 1948) pp. 52-54; John N. Pomeroy, A
based entirelyon general rules and principlesis tyrannical Treatise on Equity Jurisprudence (San Francisco: Bancroft Whitney,
and disproportioned,and that only those who make equi- 1918-19),secs 360-63.
table allowances for subtle individualdifferences have a '6HenceAristotle'semphasis on the need for a person of sound ethi-
cal judgment to be an anthroposmegalopsychos.
properfeeling for the deeperdemandsof ethics. In practice '7This image of the steam locomotive had a powerful hold on
the casuists may occasionally have been lax; but they Tolstoy's imagination:it recurs, for example, in Warand Peace, where
he comparesthe ineluctable processes of history to the movements of
graspedthe essential, Aristotelianpoint about appliedeth- the pistons and cranksof a railway engine, as a way of discreditingthe
ics: it cannotget along on a diet of generalprinciplesalone.
assumptionthat "world historical figures" like Napoleon can exercise
It requiresa detailedtaxonomyof particular,detailedtypes any effective freedom of action in the political realm.
of cases and situations. So, even in practice, the faults of '8This is the central theme of the closing book of Anna, in which
the casuists-such as they were-were faults on the right Tolstoy documentshis own disillusion with social and political ethics
throughthe characterof ConstantinLevin.
side. 19Noticehow Aristotle treats the notion of philia as complementary
to thatof "equity." As he sees, the natureof the moral claims thatarise
REFERENCES within any situationdepend on how closely the parties are related:in-
deed, it might be betterto translatephilia by some such term as "rela-
'PresidentJimmy Carterused this quotation in a speech and attrib- tionship" instead of the customarytranslation,"friendship,"since his
uted it to H. L. Mencken. However, the Humanities Section of the argumentis intendedto be analytical ratherthan edifying.

38 The Hastings Center Report, December 1981


I

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