The complexity of circumstances and the interpretivity of the language that labels ethical and legal principles combine to impose responsibility on decision-makers who are confronted by dilemmas (issues about which reasonable and unreasonable people disagree and which have no securely established ‘right answer’). For example, is ‘best interests’ or ‘significant harm’ the proper test for potentially overriding parental decisions about their children’s care? And what, if anything, turns on the difference between those two formulations of an essentially consequentialist concept when set against more deontological conceptions of: parental duties and rights; the private realm; and sanctity of life?
The resurgence (over the last four decades) of interest in virtue ethics — and, more recently, in emotion, empathy and imagination — highlights the role, attitudes and behaviour of decision-makers, whether they be judges or, for example, doctors. Ex hypothesi, their decisions cannot secure majority acceptance by dint only of their decisions’ substantive outcomes. Similarly, decision-makers’ choices and interpretations of justificatory principles will not always convince those whose interests the decisions do not favour. Nevertheless, through ‘virtuous’ processes of (factual) investigation and (normative) consideration — individual and collective open-mindedness — decisions can attract a measure of legitimacy.
Given that principles are essentially contested concepts that often overlap and conflict ─ and that there are deep tensions between rule-based and consequentialist justifications — we look for virtuous judging and virtuous doctoring. Arguably, such virtue consists in processes that — case-by-case — bring imagination to bear. This is not merely the sympathy — or Daniel Kahneman’s ‘fast thinking’ — that comes upon us from ‘being in the same boat’. Rather, it is Kahneman’s ‘slow thinking’ — empathic, effortful reflection that entails ‘imagination’ — ‘the ability to compound things and to resolve them by imagination, to build and to destroy’ (William Fullbeke, 1600)
