This Is Bioethics. Udo Schüklenk
it is unlawful. Or a doctor being required to participate in a torture program in the context of an oppressive dictatorship. The American Medical Association says:In some cases, the law mandates unethical conduct. In general, when physicians believe a law is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal obligations.The fact that a physician charged with allegedly legal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.
1.22 As we know, working to change the law can take a long time, and does not help in immediately pressing cases. In some circumstances, it can require significant personal costs. The arguments for such legal change, as well as the arguments concerning choice of action in difficult circumstances, are the proper subject matter of ethics. The fact that an action is unlawful, or legally required, is clearly an important factor, but not the conclusive one, in considering its ethical justifiability.
1.2.1 Legal and Moral Rights
1.23 You will find that in many an ethics debate arguments for or against a particular solution are framed in the language of rights. While the topic of rights is enormous and multidimensional, it is worth pausing at this point to reflect on the difference between legal and moral rights. Let’s think of examples. Abortion is an obvious one. Does the (legal) prohibition of abortion by giving (legal) protection to the fetus violate a woman’s (moral) right to control her body? Are our (moral) autonomy rights violated in societies where assisted dying remains criminalized? Almost certainly you will be able to add your own examples here.
1.24 Of course, rights exist in law when they are backed by legislation, contract or precedent. Both legal and moral rights may be described as negative or positive. The negative ones are rights not to be interfered with or prevented from doing something, such as expressing publicly an opinion that might offend others.
1.25 While such a negative right may require social resources to protect it, positive rights are generally more expensive in that they require resources. A positive legal right could be your entitlement to access welfare payments in case you become unemployed. Such a legal right only exists in societies where such a right has been established.
1.26 What do these kinds of positive and negative legal rights have in common? One commonality is that the state or some other clearly identifiable institution is going to back them up. The state will enrol you in its welfare program in case you register with the unemployment benefits program on your becoming unemployed. Similarly, in the free speech case: the state will not only not interfere with your offense causing sermon, it might even have to deploy police to protect your legal right to say what you wish to say. Enforcement then is a crucial feature of legal rights, so is their codification in law.
1.27 When we turn to moral rights, these are not backed up by law, but by argument. Of course, an argument that someone has a moral right to something may be used to argue for a legal right. A context in which the difference between negative and positive rights becomes very clear is in the context of reproduction. Think of the right not to be involuntarily sterilized (negative right) versus the right to assisted reproduction (positive). These can be regarded as moral rights which may also be backed up by law (but historically have not been in all times and places, as we have seen). Moral rights such as these can be the conclusions of moral argument. For example, an argument that there are moral reasons to give you a certain social good, such as access to assisted reproduction, could conclude by using the language of rights, i.e., say that because of x, y and z, you have a right to it. It could, for instance, be argued on consequentialist grounds that it is good for society as a whole if individuals who cannot reproduce without technological have rights to access such assistance. On the other hand, there are certain moral views that take rights as the starting points, rather than the conclusions of moral argument. On such a view, however, it is negative rights that are typically regarded as starting points and prior to positive ones. For example, if we take as a starting point that humans are by nature autonomous beings, and that interference with an individual’s freedom needs to be justified, this might be expressed in terms of individuals having rights, period. It is not that they are given rights in order to promote some social good.
1.28 You may also want to look out for arguments which purport to show that other species have rights, and the different ways in which such rights are supported.
1.3 Ethical Relativism
1.29 Ethical relativist 17 arguments take various forms, but those most commonly found in bioethics go along these lines: We should not judge today terrible things that occurred in other cultures and societies many years ago. After all, perhaps what we consider unethical today was considered perfectly above board in another age. And in any case, even if we disagree with the views and practices held at the time, we surely have no ethical proof akin to scientific proof, that what occurred in the past is truly and objectively wrong.
1.30 Bernard Williams famously described this take on ethical relativism as ‘vulgar relativism’ (Williams 1974–1975). He thinks it is vulgar, because it is obviously flawed. Those who declare that it is normatively wrong to form a normative judgment on the goings‐on in a different cultural context and/or time in history would seem to form a normative judgment that, if they are correct, they would not be able to form. They hold the view ‘that “right” (can only be coherently understood as meaning) “right for a given society”; that “right for a given society” is to be understood in a functionalist sense; and that (therefore) it is wrong for people in one society to condemn, interfere with, etc., the values of another society’ (Williams 1972, 20). In Williams’ view this “is clearly inconsistent, since it makes a claim in its third proposition, about what is right and wrong in one's dealings with other societies, which uses a nonrelative sense of “right” not allowed for in the first proposition’ (Williams 1972, 21).
1.31 In some ways this issue seems also to be a bit of a red herring. The important question is not whether something that occurred in the past was morally good or bad, even though that could have a bearing on, for instance the reparations questions in the context of slavery. Rather the important question is whether today when we need to make a normative decision on whether we ought to do a certain thing or omit to do a certain thing, it would be morally right or morally wrong to do so (Williams 1974–1975). What people have done a long time ago realistically cannot assist us in answering that question. Our context today will be very different from the context potentially hundreds of years ago. Our knowledge base is different, our values will have evolved, our resource situation will be different, and so on, and so forth.
1.32 Ethical relativists tend to make two distinct claims: There is widespread disagreement on ethical questions, and this disagreement is not merely a matter of historical distance as ongoing controversies about the morality of abortion, marriage equality for same sex couples and assisted dying demonstrate. This claim is empirically uncontroversial, but the meaning of this disagreement for the possibility of ethics is still subject to controversy. After all, we cannot possibly sustain – without trying – a stance that maintains that it will be always impossible to make moral progress on these issues. The second claim is more far reaching, it suggests that there is no objective, universal and trans‐historical truth in an ethical judgment. Rather ethical judgments are a reflection of their times as it were.
1.33 What can be said with regard to these claims? For starters, it might well be true that we have no ethical proof comparable to the kind of proof you would come across in logic or physics. However, consider this: Even in the sciences, scientific paradigms (i.e. scientific truths that have been taken for granted, sometimes for centuries) are replaced radically or evolutionarily by other paradigms. After all, that is the story of science! Scientific truth then seems a more relative matter than most people are willing to concede. However, demonstrably progress is made. Change usually occurs when the old