Fried, Charles

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 Introduction: The Need for a Philosophical Anthropology  (Article begins on next page)The Harvard community has made this article openly available.Please share how this access benefits you. Your story matters.Citation Charles Fried, Introduction: The Need for a PhilosophicalAnthropology, 48 Ind. L. J. 527 (1973).Published Version http://www.repository.law.indiana.edu/ilj/vol48/iss4/1/Accessed February 16, 2015 6:28:47 PM ESTCitable Link http://nrs.harvard.edu/urn-3:HUL.InstRepos:13548821Terms of Use This article was downloaded from Harvard University's DASHrepository, and is made available under the terms and conditionsapplicable to Other Posted Material, as set forth athttp://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAAIndiana Law JournalVolume 48|Issue 4 Article 17-1-1973Introduction: The Need for a PhilosophicalAnthropologyCharles FriedHarvard University School of LawFollow this and additional works at:http://www.repository.law.indiana.edu/iljPart of theAnthropology Commons, and theLaw CommonsThis Article is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized administrator of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationFried, Charles (1973) "Introduction: The Need for a Philosophical Anthropology,"Indiana Law Journal: Vol. 48: Iss. 4, Article 1.Available at:http://www.repository.law.indiana.edu/ilj/vol48/iss4/1INDIANA  LAW  JOURNALVolume  48  SUMMER  1973  Number  4INTRODUCTION:  THE  NEED  FOR  A  PHILOSOPHICALANTHROPOLOGYCHARLES  FRIEDtThe purpose  of this article  is to set out the difficulties  that beset theattempts to resolve the  full range  of questions  raised by  genetic  counsel-ing  and  other  techniques  growing  out of  the  "new  biology."-  Perhapsthe  rights  and  obligations  involved  in  genetic  counseling  (as  opposedto  some kind of  therapy or other intervention)  seem  relatively straight-forward.  Some  see  the practice,  indeed  the  profession,  of  giving  adviceabout  genetic  disorders  as  related  to  the  practice  of  doing  somethingabout  such  disorders.  Today  that  means  avoiding  conception,  perhapsdeciding not to  marry,  or preventing  the  birth of  a fetus  at risk.  Butit could  mean other  things.  It  could  mean  state intervention  to  preventthe  birth  of  genetically  defective  individuals.  And,  through  the  exten-sion  of the  techniques  of prenatal  analysis-amniocentesis-it  could leadto parental choice  of the sex of the children  they would allow to be born.So here,  as  everywhere  in this  area,  we  are  right in the  middle of thewhole  congeries  of  ethical  and  political  problems  raised  by  the  newbiology.In  general  it is my belief that very little truly illuminating or, there-fore,  useful  has  been  written  by  way  of  solution,  although  much  hasbeen  produced  to  show  the  implications  of  the  existing  and  potentialtechniques  of the new  biology.  What  I would  like to  do  is  to indicatethe  general  categories  of  ethical  questions  that  these  possibilities  raise.These  categories  are  frequently  ignored,  to  the  added  confusion  of  anoften confused subject.t  Professor of Law, Harvard University  School of Law.1.  This  paper  was  originally  presented  at the  Symposium  sponsored  by  the  JohnE.  Fogarty  International  Center  for  Advanced  Study  in  the  Health  Sciences  and  theInstitute  of  Society,  Ethics  and  Life  Sciences,  at  Warrenton,  Virginia,  October,  1971.The  paper  was  delivered  in  response  to  a  presentation  by  Lord  Charles  Kilbrandon.Both papers are reprinted in ETHICAL  ISSUES  IN  HUMANT  GENEriCs:  GENETIC  COUNSE-ING  AND  THE  Usa  OF  GENETIC  KNOWLEDGE  (B.  Berkeley,  D. Callahan,  T.  Condliffe,M.  Harris & B. Hilton eds.  1973).INDIANA  LAW  JOURNALDISTRIBUTIVE  JUSTICEThe  definition  of  distributive  justice  given  by  Aristotle  is  one  Ihave  in mind  for this  first  category.  Distributive  justice  relates  to thedistribution  of undoubted  goods  in  circumstances  of  scarcity.  Thus  (1)what  constitutes  a  value  is  not  in  dispute.  All  would  choose  the  goodsinvolved.  And  (2)  the  problem  therefore  arises  out  of  the  scarcity,because  there  is  not  enough  to  go around.  Thus  the  issues  are  easier,because  we do not have to worry in this instance  about what our  defini-tion of values is, only how we distribute them.Applied to the area of our concern,  the problem  is who is  to benefitfrom scarce medical resources.  This is hardly a new question.  It obtainsas  well  in  respect  to  housing,  education,  or  money  in  general.  Onespecial  feature  is  the  immediacy  and  sharpness  of  some  of  the  distri-butive  choices.  Who gets  access  to an artificial  kidney  or  who  gets  theorgan  transplant  determines  directly  and  immediately  who  shall  liveor  die.  Whether  the  choice  should  be  made  in  terms  of  deserts-theworthier  person  or  need-or  on  some  random  and  thus  equal  basis,poses  the  traditional  dilemma  of  distributive  justice.  And,  of  course,to  pass the  buck  to boards  of  clergymen,  citizens  or whoever,  is  not toresolve  the  issue,  only to  leave  it  to others  to resolve.  More  about  thisinstitutionalized  evasion  of  intellectual  responsibility  will  be  discussedlater.At  a more  remote  and  probably  more  practical  level  are  questionsrelating  to  the  allocation  of resources  between  the  fancy  techniques  ofmodem  medicine  and  the  new  biology  and  humbler  measures  like  vac-cination,  improved diets  and the  like.  Who are  the beneficiaries  of  eachkind  of  expenditure?  Are  we  not  perhaps  fooling  ourselves  when  wesay  that  future  generations  in  large  numbers  will  benefit  by  today'sexotic research?  Is it not more the case  that some things are of greaterinterest to the scientist?  Or worse  still, is it not possible that those whomake  the  distributional  decision  know  that  the  humbler  measures  ofpublic  health  will  not  benefit  them,  while  they  and  their  loved  oneswill be the beneficiaries of wonder cures?On  this  question  we  need  not  only  understand  what  our  distribu-tional  norm  is, but we also need  to work  out  who, in fact,  the benefici-aries  of alternative  choices  may  be.  Vague  references  to the welfare  offuture  generations  certainly  are not enough.  Applied to genetic  counsel-ing, for instance,  we need to know who  the beneficiaries  of  the servicesprovided  are,  what  good  is  done,  and  what  the  alternative  uses  ofresources  might be-for instance,  improved family  planning  informationgenerally.PHILOSOPHICAL ANTHROPOLOGYTHE  PROBLEM  OF  RIGHTSThe  problem  of  rights-rights  of  individuals  against  each  other,against  the  collectivity,  even  against  the  public  good-is  a  modemproblem.  The  modern  liberal  or  individualistic  concept  of  personalitypresupposes  a concept  of  rights  which  the  individual  can  claim  againstthe  socially  defined  good.  This  concept  of  right  is  heavily  involvedin  the issues  which concern  us here.  Even  as  to the special  question  ofgenetic  counseling,  we  ask  whether  a  person  has  the  right  to  certainkinds  of  information,  such  as  the  right  to  have  his  case  treated  con-fidentially,  the  right  to  an  abortion,  or,  conversely,  the  right to  marryand  have children.  From  a  different  angle,  we ask  whether  there  is aright  to  be  born,  once  conceived.  In  other  areas  of  the  new  biology,there has been  talk of the right to  die, the right to be genetically unique,and  the  right  to  be  the  product  of  normal  sexual  intercourse  andpregnancy.Two  things  are  striking  about  such  assertions  of  right.  First,rights are  usually  asserted,  so  it  follows  that their  possessor  can waivetheir  assertion.  This is a corollary of the  concept of rights  as  belongingto  the  individual.  Second,  if  they are  worth  anything,  the  rights  mustbe  assertable  as  against  the  claims  of the  collectivity.  And  this  is  howthey  are  characteristically  used.  The right to marry  and  have  childrenneed  only be  asserted  if  society  is  claiming  that  the  common  good,  foreugenic  reasons,  requires that  certain persons  not reproduce.  The  rightto confidentiality  is  asserted  in the face  of  a public  need  to know.  Andthe  mother's  right to  an  abortion  is  asserted  against  the  unborn  child'sright  to  live.  This  last  claim  of  right  must  be  made  on  behalf  of  theunborn  child,  and  for  that  reason  some  have  thought  it  an  invalidclaim.  It is  made  as  well  against  the  possible  claim  of the  public  goodthat unwanted children represent a public liability.What we are far  from having is  a comprehensive  theory  of rights,much  less  a unified  theory  which  shows  how  rights  and the  notion  ofthe  public  good  are functions  of  some  over-all  scheme.  It  is,  however,a  subject  that  is  occupying  the  thought  of  some  of  the  best  modemphilosophers.  And, although  there  are  no breakthroughs  in  philosophyin the same sense as there are in science,  we can expect increasing under-standing.THE  FRANKENSTEIN  PROBLEMThe issues  which the  new  biology  has  raised  more  strikingly  thanany  others  have  not  been  the  foregoing,  since  they  have  always  beenclearly present in much that we do as  individuals  and  as a society.  TheINDIANA  LAW JOURNALstriking  problem  is that  raised  by  our  growing  capacity  to  affect  whowe  will  become,  to affect  what  the  nature  of  man  will  be.  Both  dis-tributive justice and the  question  of rights  proceed  from the assumptionthat  we  know what  we  want,  and  the  question  is  which  of our  valueswill  be realized.  But eugenics,  whether  as  a result  of genetic  counselingor of more  arcane  methods,  as  well  as  chemical  and electrical  interven-tion  with mental  processes,  may  allow  us  to determine  what  wants  weor our children will have.These  capacities  raise  different  questions.  If  we  can  ensure  thatwe or some future person will have certain values,  a particular  constella-tion  of  appetites  and  preferences,  how  shall  we  choose?  We  are  cutadrift  completely  from the notion that we  must try to realize  the desiresof  existing  and  future  beings.  We  must  decide  instead  what  thosedesires should be.This requires  a deeper  conception  of value,  of the good.  Educationis the  social  process most  nearly akin  to the Frankensteinian  possibiltiesof the  new biology.  But  even there we  have  always  been able  to finesse-if  we wished-the deep problems, by assuming an innate human naturewhose potentialities education was designed  to bring to realization.  Herewe  can  manipulate  human  nature  itself.  But  for that we  need unavoid-ably  a  normative  concept  of  human  nature.  And,  of  course,  to changenothing is to assume that the status  quo is itself normative-an implausi-ble  suggestion  in light of the  evidence  of anthropology  that man's  intel-ligence,  capacities  and  temperament  have  themselves  been  subject  toevolutionary forces throughout the millenia.THE  RESPONSESWhat  I have  seen of the  attempts  to  deal  with  these  problems  hasbeen  only  occasionally  encouraging.  Perhaps  the  patent  need  to  arriveat  what  I  shall  call  a  philosophical  anthropology,  i.e.,  a  normativeconcept  of  human  nature,  has  naturally  suggested  the  intervention  oftheologians.  Professor  Paul  Ramsey  of Princeton  has certainly  graspedthis  kind  of  problem,2  although  I  must  confess  I  have  failed  to  graspthe structure of his analyses and solutions.The dominant current  of secular Anglo-American  ethical  philosophyis, I  believe,  a  mixture  of  utilitarianism  and  Kantian  humanism.  Bothof these  provide  only  limited  help  in  solving the  Frankenstein  problem.The  deeper  philosophy,  that  derived  from  Kant,  places  a  primaryemphasis  on respect for  man's  rationality  and  autonomy.  This  rational2.  P. RAMSEY,  FABRICATED MAN  (1970).PHILOSOPHICAL  ANTHROPOLOGYfreedom,  freedom  even  from  determination  by  one's  own  psychologicaldrives,  is  for  Kant  the  defining  feature  of man's  nature.  Clearly  thisis a normative concept of human nature.Unfortunately,  the  applicability  of  the Kantian  ethic to these issuesis  problematic.  Since  morals  are  autonomous  from  man's  contingentnature-his  psychological  makeup-it  would  seem  that  the  content  ofthat contingent  nature  is  of  no interest  to moral  philosophy.  Perhaps,however,  if we  could  get a better  understanding  than  we now have-orthan  that  which  Kant gives  us--of freedom  of  choice  and  its  precondi-tions,  we  might  discover  what  developments  of  the  person  are  mostconducive to moral freedom.The  distinguished  French  biochemist,  Jacques  Monod,  has  takenwhat  seems to  me  to be  the other  leg  on which  Kantian  ethics  stand-rationality-and  fashioned from it a criterion for value.  In this "Ethiquede  la  Connaissance,"  he  proposes  as  distinctly  human  whatever  en-chances  man's  capacity  to  understand,  truly  and  objectively,  the  struc-ture  of  the  universe.'  My  difficulty  with  this  standard  is  that  it  isincomplete.  It gives no way of evaluating the relations persons may haveto  each  other  or the  kinds  of feelings  they  might  have,  except  as  theseaffect their capacity to obtain scientific knowledge.Clearly the  development  of  intellectually  satisfactory  and  satisfyingvalue  criteria  for  the  development  of  man's  future  is  a  remote  andarduous  task.  It may involve  the development  of related  epistemologicaland  metaphysical  structures.  All  this  is  a  daunting  prospect:  no  im-mediate  results,  no  resolutions  approved  by  international  congresses.Partly  out  of the  anti-intellectualism  of  modern  science  and  scientists-many  of  whom  are  both unconcerned  with  and  impatient  of  the  greatphilosophical traditions-and  partly out  of  an impatient  desire  to  attainsome  results,  to  reach  some  conclusions,  there  has  grown  up  what  Iwould call a cult  of second-orderism.  Rather than try to  develop systemsof thought  about these  questions  of value,  thought  is  channeled  into thefashioning  of  institutions  in which  these  value  choices  would  be  made.In  the  corrupt  version  of  this,  which  I  shall  call  conferencism,  groupsof  distinguished  persons  state  their  strongly  held  views,  and  then  theeffort  is  expended  in  maneuvering  for  a  group  consensus.  Of  course,reasons for the strongly held views are only  sketchily presented, if at all,and the  task of dissecting the reasoning behind and  the  evidence  for theviews is quite out of order.A more valid version of second-orderism  is the design of institutional3.  J. MONOD,  LE HASA"D  ET LA  NECESSITE  191-95  (1970).INDIANA LAW  JOURNALstructures  such that  wide sectors  of the public  might  be involved  in  thedecisions  that  affect  their  future  and  that  of  coming  generations.  Isay  this  is  more  valid  because  there are  well-established  norms  that  af--firm the value  of wide  public  involvement  in the future  of the common-weal.  But this  only  takes  us part  of  the  way.  Although  the  power  ofdecision  should  be  widely  shared,  this  says  nothing  at  all  about  thevalidity  of  the  decision  reached.  It is  a mindless  fallacy  to  pass  fromthe proposition that the majority should rule to the proposition that whatthe majority rules  is right.  We  still have the responsibility,  as  responsi-ble  men  of intellect,  to  conclude  what  we think  is  right on  the merits,and  to  try to  persuade  our  fellow  citizens  in  the  appropriate  councils.Thus,  as in the  example  of genetic  counseling,  what the  rights  andobligations  are  to  be  should  in  the  end  be  established  by  democraticinstitutions, but surely those  institutions must be informed  by the under-standing of specialists.  The development  of that understanding, however,is a task for arduous,  patient effort,  and it is  no more  easily or  casuallyattained than are the scientific  discoveries which opened up these issues.

Introduction: The Need for a Philosophical Anthropology

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Introduction: The Need for a Philosophical Anthropology

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