A Pluralist Ethical Decision-Making Procedure
Valentin Muresan
Research Centre in Applied Ethics
Faculty of Philosophy, ...
ii) In case (b) we apply distinct tests and obtain provisional distinct verdicts; could we
make these verdicts converge ...
deliberation. They provide an explicit map for the detailed analysis of a case and not a final
To give some ...
As for the ethical matrix it was recognized from the very beginning that, by itself, it does
not lead to any result but ...
objectivity, convergence and rational grounding to our ethical assessments. The methodological
pluralism does not exclud...
method explains the convergence of results. Finally, the third explanation, to which the author
subscribes, is that the ...
method used to discover in facts the supposed ethical difficulties raised by a novel
biotechnology, but one focused on a...
system of moral rules for this professional field etc.). For example, T. Beauchamp remembers the
influence the idea of i...
The specific example is the International Declaration on Human Genetic Data - a new moral
regulation pretending a univer...
last word in the social and political approval of the Declaration belong to a political group that
represented all stak...
discussion and can identify the moral problem within facts. This drafting group (GR) will
propose the first draft (P1) ...
In contrast to the UNESCO procedure described above, this scheme distinguishes
between GR and GPDE (groups with differe...
is often denied, it seems to me essential to enhance its credibility by a mature development of its
procedures as that ...
exchanges” (Manual of Ethical Delphi) . What this method can provide is a map of the opinions
the experts have on the e...
10) The experts will receive the preliminary form of the final report and will
submit it to their own judgment. The rep...
As a matter of fact, it is easy to see that the broad ethical decision, which we have
called the social approval of the...
makes the ethical assessment report. Obviously, each member of the Delphi panel may remain a
partisan of his theory or ...
It is also necessary to work in the direction of creating a variety of ethical tools if we
want ethics be taken serious...
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Muresan, Valentin - A Pluralist Ethical Decision-Making Procedure


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Muresan, Valentin - A Pluralist Ethical Decision-Making Procedure

  1. 1. 1 A Pluralist Ethical Decision-Making Procedure Valentin Muresan Research Centre in Applied Ethics Faculty of Philosophy, University of Bucharest Decisions about the moral value of an action, rule or public policy cannot be reduced to the mere verdict resulting from the application of the traditional “tests” based on the major ethical theories, despite the fact that handbooks still unanimously support this view. The history of ethical tests is rather a land of surprises than that of predictability. You would expect, for instance, that several people which adopt the same moral doctrine do this for seeing the things in the same way, including the moral assessment of actions. We all believe that just this is the reason why they embrace the same moral creed. Therefore it seems strange to find that several Parliament members, which are all active supporters of the Christian morality, assess the legalization of prostitution in opposite ways. On the other hand, it is also strange that two people who adopt different ethical theories - precisely because they offer distinct explanations of the moral phenomena - usually assess actions in the same manner. When you have in front of you a utilitarian and a Kantian or a follower of the Christian ethics and one of the Muslim ethics, it is somehow queer to see them judging a situation in the same way in most cases despite the fact they are declaring themselves as supporters of opposite ethical beliefs. Are they really opposite? The general statement is this: the use of tests based on distinct, even opposite theories, such as utilitarianism and Kantianism, results sometimes in distinct assessments, but in most cases in convergent assessments (Kantian and utilitarian moral duties are, ultimately, the same). On the other hand, if we adopt dogmatically a single theory and apply the same test repeatedly to the same action we usually get the same assessments, but also some divergent ones (see the cases of divergent utilitarian assessments of the same case given as example in the textbooks). This picture brings with it several lessons: 1) using a single test does not ensure the uniqueness of the ethical verdict, as is commonly expected, and using several tests does not entail the verdicts dispersion; 2) we may have (a) two distinct, even opposite, tests (e.g. the utilitarian and the Kantian) leading to the same verdict, but also (b) two different tests resulting in two distinct verdicts. 3) As we may have (c) a single test (used at different times or by different persons) that leads to different verdicts, but also (d) a single test leading to a single verdict. Given this situation, we have to clarify three questions: i) In cases (c) and (a), what factors occur during a single test application that split the verdicts? And, in case we apply two distinct tests, what factors generate the surprising convergence of verdicts?
  2. 2. 2 ii) In case (b) we apply distinct tests and obtain provisional distinct verdicts; could we make these verdicts converge in a non-contingent way? In general, how could we proceed methodically so that a pluralist group of ethical decision-makers, including experts with different ethical principles and options, reach the same outcome (a commonly agreed verdict, even though each of them preserve their initial distinct ethical beliefs). Or, on the contrary, is a pluralistic group of ethical decision-making doomed to never reach a unique verdict? iii) In case (b), suppose we have made the verdicts of the pluralist panel converge; how do we take the final decision that imposes and puts in a dominant position the new moral rule? Is the mere verdict of the specialized ethical panel enough or do we need a final political agreement in the name of society at large? The first question concerns certain characteristics of the tests themselves or of the mental processes taking place tacitly during the testing procedure and making us get different verdicts by applying the same test to the same case, or the same verdict by applying different tests, respectively. The second question refers to the possibility of supplementing a pluralist test that is usually expected to give divergent verdicts, with an ingredient that ensures, in a methodic way, the less dispersion of assessments possible, without making the evaluators change their initially divergent moral beliefs. And the third question concerns something that happens in the period after the reach of the technical moral agreement: what should we do for the new rule, recommended by the ethical experts, be recognized as a moral rule by all those covered by it, e.g. all employees in a company or the whole society? How can we impose it with the autonomous consent of those who have to comply with the rule? Let’s start with the first question. How is it possible that the same test (case c), when applied by different individuals or by the same individual at different times, lead to different verdicts? And how is it possible that different tests, based on competing theories, lead to the same verdict in most cases (case a)? For instance, how is it possible to evaluate the same case by a consequentialist method and get sometimes a result, sometimes another? Or how is it possible that a utilitarian and a Kantian, who try to convince us that morality means different things, get in most cases the same results in the assessment process? Are the ethical decision-making procedures so week or even simply wrong? My answer is the following. If ethical decision-making procedures would be algorithms, they ensured the verdict uniqueness and thus the overall internal consistency of moral assessments. But there's no algorithmic ethical test. It is acknowledged that ethical decision- making procedures are not conclusive in the sense that any verdict is merely probable and therefore revisable. This is so because during the single test procedure a number of factors undermine the uniqueness of the verdict or, in the event of two tests, generate a spontaneous convergence of verdicts. Among them we may mention the probable character of the consequences, the unavoidably subjective selection of the relevant consequences, the subjective selection of the decision procedure from a class of methods of the same type (e.g. there are several utilitarian procedures), the fact that the test rely on probabilistic judgments of analogy, the various weights attributed to different ethical principles by different evaluators, the subjective meaning of the phrase "to degrade the humanity in man” in Kant’s test etc. Ethical tests consist less in applying some rigid rules, then in establishing some milestones to guide
  3. 3. 3 deliberation. They provide an explicit map for the detailed analysis of a case and not a final conclusion. To give some concrete examples. Kant's test may result, whether applied by different persons, in a variety of verdicts regarding the establishment of a new duty primarily because it is based on analogies, so on probable reasoning, which opens the door to different assessments made by different evaluators. Second, the test result depends on the criterion: do not destroy or degrade the humanity in man; or, by "humanity" we mean the rational being of man, and by "destruction" the killing of man but also some medical experiments aimed to alter his consciousness etc.; the "degradation" is also reached through lies, censorship, flattery etc. The empirical identification of all these very different situations in a given case is always undermined by the evaluator’s subjectivity, it is not a process governed by fixed rules. This is the reason why D. Ross proposed the test of humanity should be finally supplimented by intuition. Moreover, Kant himself is aware that the application of his test requires a certain capacity of moral judgment that may be improved and has to be “sharpened by experience" (G.Pref.8). As regards the principle of utility, one is aware that it is not an algorithm. Only in the most elementary cases we may speak of the "deduction" of a certain particular case from a universal principle. For example, if we have the moral rule "Lying is morally prohibited" and we have data that the minor premise “Salaries will increase by 100% is a lie” is certainly true, then the conclusion which necessarily follows is: “The promise salaries will increase by 100% is morally prohibited". But only in few occasions we may be sure that the minor premise is true. If I say, for example, "The promise to increase the salaries is a lie” I cannot be sure of its truth because this is a vague promise and there are some chances the politicians keep their promise. Most cases are of this latter kind. But the conclusion is only probable and it depends on how the assessor approximates the chances of the minor premise. Here there is enough room for variation. But what should we do when we have to prove the major premise without being able to deduce it from another similar premise? In this case we have no other way than to appeal to the principle of utility itself. But applying this first principle is not an algorithmic procedure either, it is only an rough assessment guide which is influenced by many subjective factors: the criterion of morality is the maximization of good, but “good” may be understood in different ways (pleasure, preference satisfaction, etc.); the idea of maximization may also be understood differently (total amount, balance, mean etc.); we can calculate the value of actual consequences or that of the foreseeable ones and in each case the assessment usually differ; we commonly calculate the probability of consequences and this is an amount very much relative to the evaluator’s cognitive limits; the selection of the relevant consequences is relative to our epistemic limits as well as to our ideological, political and religious commitments1 . Assessments also vary because different people attach different amounts of value to the same consequences depending on their various background beliefs. And we know that the agreement on the kind of "punishment" proper to various moral rules is not mainly a question of the amount of good produced by observing the rule, but of the qualitative assessment of the social importance (“weight”) of the utilities covered by the rule in the broad axiological context of that society – and that is a historical variable. Decision for all these variables is not based on fixed rules, but on the "practical wisdom” which is agent-relative. 1 For a doctor which is a non-believer the consequence of making a blod transfusion is something good, i.e. to save a life; for the pacient, which is a Iehova Witness member, the same transfusion is an evil because it is prohibited by his God.
  4. 4. 4 As for the ethical matrix it was recognized from the very beginning that, by itself, it does not lead to any result but only helps us to do that. To reach the decision, its creator Ben Mepham says, it must be complemented with a balancing of the "weight" attached by various stakeholders to the ethical impact the observance/breach of some ethical principles, identifying areas of disagreement and insisting on their resolution, using as a guide a numerical scale concerning the "perceived ethical impact" inside an ethics committee; in addition, he points out that the matrix is "only one" of the possible ingredients of the moral assessment process and suggests the search of some other instruments of this kind.2 Since the use of a single test or test-type does not ensure the uniqueness of the ethical verdict and therefore the coherency of the moral judgment, my suggestion is that the use of several tests is the only and the most desirable solution. The ethical pluralism seems to be the single viable strategy of moral evaluation. It is a doctrine which claims that "there are several explanations of morality, not one, and that they may be in a state of conflict. [...] Each of them also gives a partial truth of the matter and each approach also provides a check on the other. We do not look at the conflicts between these branches as bad, at least not always. [...] Chance to discover the mistakes sooner is enhanced when each branch is critically scrutinizing the other. [...] Ethical pluralism has as a model a healthy government in which diversity, disagreement, compromise and consensus are signs of vitality."3 Here are some additional reasons for suggesting that a kind of methodological pluralism is preferable in ethics. First, there are several evaluation frameworks and to choose but one means to open the way to those who accuse the choice of being arbitrary. Secondly, an attempt to reduce the multiplicity of tests to one by unifying the background theories (e.g. R. M. Hare's unification project) proved to be a failure as long as the new unified theory is only one of several attempts to theoretical unification. Thirdly, the general strategy currently embraced nowadays to forget the great theories and create pragmatic “assessment frameworks”, based on the "common morality" did not ensure the desired methodological unity because these "frames" (e.g. ethical matrix, principlism, moral casuistry, etc.) became more and more numerous, even more numerous than the theories. Finally, even if, by an act of magic, we may remain with a single ethical theory and a single test, and they were unanimously accepted, this ideal methodological monism, as we have seen, does not assure the assessment coherency in applied ethics. The methodological pluralism seems to be unavoidable in a world in which it is not possible to have a single ethical method. Therefore, to the question "What ethical decision-framework could choose a student who writes an essay on the moral evaluation of pornography so that he is not immediately challenged from a different theoretical or methodological position ... as good as the first?" the most plausible answer is that there is no such a framework. In the field of morality there is not an impersonal, “objective point of view” except, perhaps, the point of view of "God's eye", but this is not accessible to us. We live in a society which is characterized not only by the pluralism of moral values but also by the pluralism of doctrines and assessment methods and we must accommodate to the reality of such an irreducible pluralism. Moreover, we must use this situation, which defines the democratic societies, to find a way to ensure a maximum of 2 Ben Mepham, „A Framework for the Ethical Analysis of Novel Food: the ethical matrix”, Journal of Agricultural and Environmental Ethics, (12), 2000, p. 175. 3 I. Hinman, Contemporary Moral Issues, Prentice-Hall, 1999.
  5. 5. 5 objectivity, convergence and rational grounding to our ethical assessments. The methodological pluralism does not exclude convergence of results. Let’s stop for a moment to this latter aspect. At a first glance, things seem to stay the other way round. The plurality of methods is supposed to induce such a dispersion of verdicts that pluralism seems to be disqualified as a possible method of ethical decision-making. The methodological monism looks as a more fitted approach to provide coherent verdicts. My main question is: could we proceed in such a way that different verdicts, based on different ethical tests, are however made to converge (case b)? In other words, how can we set up a pluralistic group of ethical decision-making, in which each member uses distinct moral principles and distinct assessment procedures but reach in the last instance a single common verdict? Obviously, we are not interested here in a spontaneous convergence of opinions, but in one which is methodically guided by a given procedure that becomes part of the test. In a study devoted to the analysis of the status of applied ethics today, Alasdair MacIntyre tackles the assessments convergence problem starting from the obviousness of the "disagreement" in fact between the moral philosophers as concerns the genuine moral theory; this contrasts with the hope in a universal rational agreement nurtured by all supporters of what he calls "the dominant conception of morality" (Kantianism, utilitarianism, contractarianism and their various combinations).4 This irreducible pluralism of moral theories, views and methods has poor chances to be eliminated. Contrary to the view that the plurality of methods entails the plurality of assessments, it is proved that people having distinct ethical views may easily reach the same solution when they are put together to solve a practical problem. MacIntyre gives as an example the story of The National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research which proved that the disagreement in principles (in the theories or ethical views adopted by the members of the team), instead of generating a similar disagreement in assessment, is compatible to a practical agreement which was quite easily reached. The Belmont Commission is a good example of a pluralistic group of ethical decision- making, including people with various ethical involvments which, instead of spending their time in an unended dispute around the good moral theory, rapidly arrived at a convergence of their viewpoints and to the agreement of a common report. How could we explain this surprise? MacIntyre sees three possible explanations of the commissioners easy agreement. The first is that the adoption of rival moral principles may, surprisingly, lead to the same assessments in the field of applied ethics. I see nothing new in this statement; the question is how such a thing is possible? We could use this occasion to wonder whether the so called gap between the traditional rival theories (and the distinct explanations they give to the moral phenomenon) is so big as one says, since their assessment outcomes are rather similar than conflicting. The second explanation is that the members of the above mentioned assessment group did not actually apply thereown principles (or theories, or ethical views): as a matter of fact they did not judge following the principles they claimed to adopt, but had in view typical cases – without being aware of this change. They were casuists without knowing this. The implicit use of the same 4 A. MacIntyre, „Does Applied Ethics Rest on a Mistake?” in A. Cortina et alia (eds.), Public Reason and Applied Ethics, Ashgate, 2008. The „dominant conception of morality” is the view that the rules of morality are such as every rational agent would accept them. In this sense, „applied ethics” is concerned with the application of these universal principles to concrete cases that belong to particular social spheres, the usual expectation being that the disagreements between principles automatically mirror in the disagreements between the verdicts of applied ethics assessments (p. 50).
  6. 6. 6 method explains the convergence of results. Finally, the third explanation, to which the author subscribes, is that the works of the commission were presented in a false light by claiming that the deliberation process was completely rational; in fact, all deliberation and decision making inside the commission were „a social non-rational agreement”. The irrational ingredient enter the scene in the following manner: the ethical principles are „indeterminate” in the sense that they cannot take into account all the circumstances in which they may be applied; this fact opens the way to new circumstances in the future that are different or even opposed to the previous ones, and which obligate us to take a decision only after we weighted these new circumstances; but weighting the circumstances and reasons is only a „metaphor” for which there are not any rules. Therefore, the assessment process is not a (completely) rational one.5 The convergent final verdict is the consequence of these reciprocal psychological influences. The first is not an explanation, but a finding: we know that competing ethical principles can sometimes give birth to identical assessments. The second explanation is not very strong: the uniqueness of the method does not entail the uniqueness of assessments. The third explanation seems to explain better the first two cases: ethical assessment is not an entirely rational process. The explanations and the example given by MacIntyre rather suggest a situation where the assessments convergence is something that occurs spontaneously or quasi-spontaneously (question (i)). But we would like to know how is it possible to methodically determine such a kind of convergence inside a pluralist assessment committee. The most plausible answer would probably be that the members of the committee have to use their practical wisdom, their ability to discuss and negotiate, various forms of irrational persuasion to convince their interlocutors, to refine the methods used and adopt new methods, to use various forms of “qualitative judgment”, to “weight the reasons” and to use tactics of "mutual psychological influence" for finally reaching a partial agreement. And all these things after the strictly technical ethical tests were applied by each evaluator and some provisional verdicts were obtained. The testing process would, therefore, include several stages. The fronetic elements above must fill the procedural gap between the plurality of tests applied by the team and the single verdict reached at the end. To introduce these fronetic elements – which are not guided by rules – means to try to reduce the verdicts dispersion caused by our independent evaluators who use different methods. It is natural to consider this fronetic supplementary element as a part of the pluralist test and not a mere adjuvant used occasionally. I shall propose in the following pages to fill the procedural gap by using a tool which makes opinions cohere, and which was initially a non-ethical one, the Delphi method. It will be of course, a modified “ethical Delphi”. In its standard form6 the test does not include any moral theory or method. In our case it is just a methodological ethical Delphi, the members of the panel are all of them experts in ethical decision-making procedures. In the standard ethical Delphi “it is not possible to directly deduce from the data analysis the ethical acceptability, or otherwise, of any proposed biotechnology” (Ethical Delphi Manual, p. 10), while in our case the purpose is just the ethical assessment of a decision or policy. It is not a 5 A. MacIntyre, „Does Applied Ethics...”, p. 51-2, 59. 6 See Ethical Tools website.
  7. 7. 7 method used to discover in facts the supposed ethical difficulties raised by a novel biotechnology, but one focused on a pluralist and professional assessment of the moral acceptability of an already formulated public policy. Finally, there is a third situation on which I would still insist. Suppose we succeeded in assessing a policy by using several ethical tests and making the evaluators’ opinions convergent. Now, how should we proceed to socially impose the new policy? Is its social recognition and acceptance determined only by the rational criteria included in the ethical tests or shall we add something more? My suggestion is that the social imposition of a new moral rule, with all the force of a prescription that is "dominant" in comparison with other types of prescriptions, is done following a further assessment process on multiple criteria (not only on moral criteria), e.g. political, economic, religious, strategic etc. The decision to adopt a complex policy having a moral content is never merely ethical and the extra-ethical criteria can often prevail. Moral decision does not come to an end with the implementation of the ethical tests developed by the moral philosophers (and taught in seminars) - even if we add the fronetic supplement suggested above to fill the gap between the pluralist test and the unique final verdict - but also needs a political supplement. For actual moral decisions do not take place in an ideal, purified, social space, in which the moral rules should not be influenced by any political, economic, geostrategic interests etc.; this simplifying mentality is specific to the academic practice regarding the ethical decision making. But the real ethical decisions are taken inside the society, which is an area where there is a competition between various interests, major or minor, some of them local or selfish, some others more basic and covering the whole of humanity. Moral rules protect certain broad fundamental interests - having a historical variability - and restrict our behavior so as to ensure the interests satisfaction of all those concerned in a neutral and impartial way. In these circumstances, it is impossible to adopt a new moral rule (e.g. the ethical principles of biomedical research, a new European policy, a new code of ethics) which is not dependent, more or less, on the economic, legal, political, religious interests of that social community. Moral rules exist in a social context and depend on it. My suggestion is that, beyond the technical moral decision (based on the standard ethical methods and on practical wisdom - which remains the basic decision and gives the "official" reason to the final verdict), the final verdict itself is a "political" one (i.e. a multicriterial and only partially rational one). This hypothesis appears to be consistent with the facts. For example, let us remember that the Belmont Report was a political initiative and its elaboration was an institutionalized process that lasted four years. To apply the principle of utility (or any other traditional ethical test) you do not need four years! What has happened during all that time? A pluralistic and interdisciplinary committee has held numerous discussions on the text, attended public hearings, and has made constant efforts to achieve consistency with other similar reports or the legislation already existing. The adoption of the final formula was based not only on ethical reasons but also on grounds of taste ("it’s too philosophical"), of practicality or for personal, irrational reasons (“let’s not take all these from the beginning"). All committee members remember the influence of the political climate of the times upon them (the civil rights movement, the public scandals concerning the bio-medical research that pressed the policymakers to develop for the first time a
  8. 8. 8 system of moral rules for this professional field etc.). For example, T. Beauchamp remembers the influence the idea of individualism, central to the American politics, had in the adoption of the principle of autonomy; therefore the committee worked "in context", it was "part of the American culture" with its dominant values. The appointment of a Catholic as the head of the committee was suspected by some other members as a political maneuver to impose conservative solutions to the issues raised (such as the human status of fetuses); this entails that the political and ideological pressures on the committee decisions actually existed. Therefore, the establishment of the new moral rule was ultimately a political decision determined by rational arguments - ethical and non-ethical - and irrational factors related to personal feelings or random "humane" reactions. These elements must be included too in the general scheme of an ethical decision making process. But before doing that, I shall highlight a commonly overlooked idea: simple ethical issues are solved easily and usually they do not form the subject of public controversy, nor are they given as examples in applied ethics courses. Undisputable moral facts (e.g. an action which observes a moral norm) and those that are obviously immoral (because they breach the norm) do not excite the public curiosity. Most part of the moral judgments are of this kind. Instead, undecided problems, the complex, unusual or dilemmatic ones, provoke scandal and lead to discussions that take time, exciting our passions and moral imagination. They are more provoking and usually involve the team work, combined with an institutional organization of ethical decision making. Ethics committees are the most adequate framework for discussing and rediscussing the ethical rules once adopted. This process is endless. However, there is a strong tendency in the juridical and political community to only mention the ethical standards but to ignore them in fact, as in the case of Parliaments, where the professional ethical assessment (that is a necessary condition for adopting a law) is usually lacking or is only simulated using criteria of the common morality. Moreover, despite the skepticism expressed by some philosophers, we must recognize that applied ethics in recent decades has taken the path of institutionalization outside the borders of academic philosophy. In the past, teachers and students in applied ethics used to assess as seminar topics certain typical examples of actions and rules, often super simplified, a virtual procedure that does not entail any moral responsibility in relation to actual institutions or socio- professional groups. It's a kind of intellectual cabinet game, which is not representative for what moral decision really means in the real social life. However, even in this case the teamwork is preferable, at least for the chance given to the critical debate of all points of view. What to say of the situations where the ethical decisions we have to take are very important in terms of their social impact, such as the large scale acceptability of the use of a biotechnology obtained from genetically modified organisms which allegedly may have harmful effects on the health of millions of people. In this case, to play the academic game is risky. What are the moral philosophers ready to propose us to be able to face this political challenge? I shall start to shape a new pluralistic procedure of ethical decision-making from the analysis of the case of the setting up by UNESCO, at the global level, of a public policy having a substantial ethical content, trying to capture the actual structure of the process of ethical decision making (which may be transferred afterwards at the level of firms or other kind of institutions).
  9. 9. 9 The specific example is the International Declaration on Human Genetic Data - a new moral regulation pretending a universal (planetary) validity. The scheme synthesized from this example can also be found in the adoption of other public policies, national or international. The beginning of the setting up of this new moral rule is marked by the presence of a widespread feeling of insecurity and uncertainty concerning the protection of some fundamental human interests - such as the violation of human rights and freedoms, and ultimately of human dignity – by the morally misuse of human genetic data. Therefore, a new need is perceived at the level of almost all the countries in the world: to have a new rule on this issue which is able to block the potential abuses and to "protect human dignity" before the possible aggressions coming from an immoral use of genetic technologies, i.e. from an improper handling of the human genome that could endanger the identity and the physical integrity of present and future generations. Everyone accepts that this is a case of moral regulation, but nobody knows what form should it take to be able to serve the divergent interests of the citizens of all states, those of scientists and physicians, the religious organizations or the NGOs in a manner consistent with other related regulations that have already been adopted. The initiative to launch an international project to regulate the use of genetic data belonged to the UNESCO Director General. He required in May 2001 the International Bioethics Committee (IBC) to draft the new regulation. The document was finalized three years later, in May 2003, when some voices claimed that the process was a little bit too fast. IBC set up a “drafting group” composed of experts; this was an interdisciplinary and pluralist group. It deserves to be noted that the organizers believe that the best place to take ethical decisions is an ethical committees which is “independent, multidisciplinary and pluralist” (Art. 6)7 . In this case, the panel of experts was formed by 4 law experts, 3 in genetics, 3 in bioethics 2 in moral philosophy, 1 in anthropology and 1 in chemistry. The group moderators were N. Questiaux and P. Robinson of France and Jamaica, respectively. All logistical support was of course granted. The panel first established the moral foundations of the new regulation (the principle of dignity, which is fundamental; then the principles of equality, solidarity and responsibility, as well as some form of welfare, precautionary and vulnerability principles.) (See the Preamble to the Declaration). The group worked in a typical principlist manner (see Art.1), the criterion of moral acceptability being the "internal consistency" with the moral principles accepted and the "external consistency" with other moral rules concerning human rights. It was also steadily pursued the consistency with the international and national law, by broadening sometimes the meaning of confidentiality and consent so that they cannot be imposed unless the legislation of the countries allows it etc.8 The experts group proposed a number of general philosophical options concerning the human nature, freedom, responsibility (opposed to the biologist reductionism, for example) in the light of which the document was conceived. The first draft of the document issued in November 2002 and it was sent to IBC to be analyzed. Overall, there were seven meetings of the experts group. But the experts group had not the last word. The 7 International Declaration on Human Genetic Data, UNESCO, 16 October 2003. 8 Meeting of Government Experts Responsible for Finalizing the Draft International Declaration on Human Genetic DAta, Final Report, 21 July 2003.
  10. 10. 10 last word in the social and political approval of the Declaration belong to a political group that represented all stakeholders. To capture the positions of all parties in the document, the draft was submitted to a public debate. The public character of a moral regulation and the requirement of being accepted by society at large (not to be imposed in a paternalistic way) seem to be – in the eyes of those who organized the decision process – a necessary condition of its morality. This reminds us of Kant. The document stresses that: "States should endeavour to involve society at large in the decision-making process concerning broad policies for the collection, processing, use and storage of human genetic data." (Article 6). In this way, through a public debate, it was possible to evince and eventually to capture in the document the variety of interests, from the level of states to that of individual researchers or NGOs. The pluralism of this approach was also underlined: “This decision-making process, which may benefit from international experience, should ensure the free expression of various viewpoints” (Art. 6). The steps of this exercise of democratic transparency were completed by an international consultation through questionnaire, plus a special meeting; a public hearing in which a variety of organizations and individual people were free to express their views as well as an assessment of the UNESCO Executive Board followed; during all these meetings the “weight” of the document was established: it will be a “declaration", so it has no legal force but only a moral influence; then the document has been reviewed by a "working group" of the UNESCO Commission. Finally, after going through all these filters in the process of social approval, the adoption by the UNESCO General Conference followed, in October 16, 2003. It was essentially a political decision, i.e. one that acknowledged that - in addition to the ethical requirements - the new rule must "meet the needs and interests of the states" which are not only moral but also "economic and commercial" (Preamble), bio-medical and legal. The Conference has shown "a spirit of tolerance" and get a unanimous approval of the “declaration” by applause. Being a moral rule, it has to be sanctioned by our feeling of remorse or by the attitudes of the public in case of disobedience. These motivational feelings must be educated in the future – an objective that the Declaration provides in art. 24 as a further task of all Member States. What is now the general scheme of the process of ethical decision-making suggested by this example? Suppose, in principle, that we are confronting not a normal situation, but an "extraordinary" one, i.e. we want to introduce a new rule in a code of conduct (a rule that is disputed by others), or we want to resolve a moral dilemma which raises questions to the members of a corporation, or we want to adopt a new public policy on a controversial issue starting from several public concerns and complaints. The deployment diagram of the process of moral decision-making seems to have the following plausible form. First, because this is a sensible social issue the moral acceptability of which should be judged, there will be an applicant institution (S), e.g. the government, the parliament, a university, a company etc. that asks the assessment. It is natural that this requirement is done on a contractual basis. The applicant claims a mature and responsible answer to the question: is it morally acceptable or not a particular public policy designed to address the issue of the e.g. genetic data that caused frustration in our society? To this end, S has to appoint, first, an interdisciplinary group of specialists representing the interests of the applicant, which are well aware of the issue under
  11. 11. 11 discussion and can identify the moral problem within facts. This drafting group (GR) will propose the first draft (P1) of the new public policy. This draft is then subjected to an extensive and lengthy process of public debate (PD). It's not just a democratic exercise, but a necessary condition for the moral acceptability of the project which has to meet two requirements: i) the requirement of publicity (the new moral policy must be public) and ii) the requirement of autonomy (the new moral regulation has to be self-imposed by the subjects, not imposed from outside). Both are conditions inspired by the Kantian theory of morality. The suggestions for improving the text which were collected from the general public are then selectively inserted in the text by GR. What this group has also to do is to check the compatibility (CV) of the new regulation with the laws or public policies already adopted. The condition of consistency with the existing moral values is another necessary requirement imposed on the project to be morally acceptable. The outcome of this process is an improved version of the draft (P2). Only under this improved form (P2) it is natural to deliver the project text to a pluralistic group of ethical decision-making (GPDE), a group designed to give a moral verdict about P2, included in a moral evaluation report (RM) which will finally be sent to the applicant. At this level, other independent assessments (OA) may take place: economic, medical, etc. by expert teams. It is a nonsense to give GPDE a raw version of the project because this is not a group that make amendments to the draft, but a group that assesses the project. Either the evaluation report is negative or positive, S is the only one who decides whether the process goes on or not. For instance, we may have a moral assessment rejecting the legalization of prostitution, but the applicant decides however to continue the debate of the law in the Parliament and there - on other criteria: economic, political, etc. - one may decide the adoption of the law. To “go on” means that P2 (together with RM) is transferred to a group of political decision (GDP), a group meant to represent the whole society (or the whole organization) and which is able to give a final verdict. This group, composed of politicians or other public representatives, will inevitably judge by multiple criteria (moral, economic, religious, political, strategic, etc.), rational or irrational, and will accept or reject P2 together with the RM. It will also establish the weight of this new regulation (is it a law or only a political directive?) - what kind of penalties shall we associate to the new rule and what educational plan shall we adopt to internalize the new regulation (ethics training programs). The final rejection of the project (which may occur also on extra-moral reasons) means to delay its implementation by S. Schematically, things look like this: compatibility improve the project Yes S GR P1 DP VC P2 GPDE RM GDP negative/positive ethical verdict. S decides to go on No rejected project: delay OA
  12. 12. 12 In contrast to the UNESCO procedure described above, this scheme distinguishes between GR and GPDE (groups with different functions and powers), the kernel of the pluralistic decision procedure being represented by GPDE (which does not exist in the procedure used by UNESCO). But GPDE is not a provider of final moral verdicts. Its activity aims at applying some moral tests to a given case. Its main objectives are to identify the divergence and convergence of several expert moral assessments and identify the roots of their incoherency; to provide a professional basis for the final ethical decision-making which is a “political” one; to provide a map of the moral problem under discussion for the use of the laymen and politicians who will take the final decision; in general, to encourage sistematic and professional ethical thinking in the moral assessment of our main practical issues. One may object that the presence of GDP suggests that, in my view, whether a rule is moral or not depends on its approval or rejection by society and not by an objective ethical test. Or, this means to fall into the vulnerable doctrine of cultural relativism: all moral rules are dependent on the social context in which they are established. In reality, both things happen: the moral character of a new rule is established by GPDE, not by GDP. And the members of GPDE may use universal principles (I find it is an error to ignore the universal moral principles in the building process of ethical codes - as usually happens). GDP does not establish the morality of the new rule, but only decides whether the society recognizes as such the moral regulation established by the GPDE experts. This suggests that a new moral rule or policy acquires its authority ultimately from a kind of social consensus (agreement) and not only from technical ethical reasons e.g. the “maximization of utility” or/and the “respect for human dignity” etc. Does this scheme contain a mix of ethical and non-ethical procedures, the latter risking to alter the moral substance of the project? Let’s see. Despite what appears to be the case, the first phases of the project (that may be considered as non-ethical) have an obvious connection with ethics: identifying and formulating a moral problem, establishing the conditions of publicity and autonomy in the adoption of a new rule, the promotion of the condition of coherency with the previously adopted moral rules. Then, what follows is also an ethical step: the application of some typical ethical tests (GPDE) and the writing of a moral report (RM) which gives a resolution on the moral acceptability of the new rule or policy. Finally, at the level of GDP a new evaluation occurs, using ethical and non-ethical criteria, but the presence of the non-ethical criteria does not affect the moral nature of P2. To an analogy: in the research field of the so called “policy of science” or “finalization of science” we may decide the future way of the scientific research using not only epistemic, but also moral, religious, military or political criteria without making the research less scientific thereby. This means that GDP should not be seen as a group of ethical assessment, but as a group meant to socially approve and impose a new moral rule, being guided by moral and non-moral criteria. I conclude by saying that the specificity of the adoption of a new ethical code or of a new moral public policy (but not of its moral assessment) is that it is always done on non-moral criteria too. It may also be objected that the procedure is too complicated. In fact, it's not more complicated than the procedure used for the adoption of any important juridical law. And I think the ethical decision-making procedures need to be detached from their handbook simplicity if we believe in their social utility. In nowadays circumstances, when the usefulneess of applied ethics
  13. 13. 13 is often denied, it seems to me essential to enhance its credibility by a mature development of its procedures as that described above. The procedure of methodological pluralism that I am proposing here asks us to recognize all the tests derived from the great theories and all decision-making methods independent of theories and give them an equal chance in the evaluation process, i.e. use them inside a pluralistic ethical decision-making group (GPDE) composed of experts who know well the investigated field and are also able to handle a moral decision method or know how to apply a general ethical doctrine, a moral gestalt (e.g. the Christian one). So an important step in such a process is the formation of a panel of experts which know well the facts and are able to apply one of the following ethical decision-making methods: - Hare's utilitarian method (or other utilitarian procedures); -the principlist method; -the ethical matrix; -moral casuistry; -the Christian ethics; -other ethical decision-making methods (the Kantian one, the ethics of care, the virtue ethics etc.). In each exercise of this kind it is necessary to have a monitor or coordinator with experience and moral insight, and a meta-procedure at the level of the panel such as that described by the ethical Delphi. This involves to coordinate the activities of the experts panel so that each solution is adjusted to be consistent with that of the others and finally allow the monitor to reach a synthesis of the views expressed in the group under the form of a conclusive statistical judgment. Crucial at this stage is the capacity of assessors to obtain information about the preferences of all "stakeholders", about the estimates regarding the consequences of the action assessed. The interaction of the panelists will seek the clarification of their philosophical, religious or political commitments, so that all evaluators will judge the same facts, as far as possible. At this stage no uniformity of method and opinion is desirable. Rather, the moral pluralism should be encouraged. The moral verdict (RM), even if provisionally, has to be prepared by the monitor M, which relies on the outcome of the panel (the statistical trend of opinions in the panel), on other moral considerations, on his own moral flair, on his power of persuasion etc. Here the fronetic supplement in evaluation is obvious. It explains why the members of the group can reach a common result although they remain supporters of their initial divergent moral beliefs and principles. How could we systematically coordinate such a heterogeneous decision group characterized by divergent ethical views? Some would probably say that this process takes place spontaneously, as the case of the Belmont Committee shows. But none of us is sure of that, therefore it may be preferable to control the process. We can do this by making the assessment team work under the procedure called the ethical Delphi - a method that helps the group members to reduce the dispersion of their assessments and ultimately to propose a final (provisional) solution. It would be useful to briefly say what is this method (see its manual on the Ethical Tools website). It is an "iterative participatory process between experts for exchanging views and arguments on ethical issues. The method is structured around the notion of a virtual committee where the exchange of ideas is conducted remotely through a series of opinion
  14. 14. 14 exchanges” (Manual of Ethical Delphi) . What this method can provide is a map of the opinions the experts have on the ethical dimension of the use of a new biotechnology, for example, but it cannot provide definitive judgments. More specifically, it helps to identify convergences and divergences in the experts points of view, encourage ethical reflection and provide a rational basis for making ethical decisions. Practically, the pluralistic group of ethical decision-making could be structured by this procedure as a virtual group, having a latent existence and becoming functional on demand. The essence of this technique (which has no intrinsic moral content) consists in sending by e-mail a series of questionnaires to a preselected group of anonymous experts, questionnaires that require a step by step resolution of a complex ethical issue. Sending questionnaires step by step will enable participants to know the answers of others and adjust their own responses, not necessarily to reach a consensus. The method allows the convergence of the outcomes resulted from the application of several distinct ethical decision-making methods, based on distinct philosophies of morals, without putting the experts under the influence of external power relations and personal influences that may interfere in the discussion. The experts are anonymous and do not work in the same place. The steps for applying this technique – to the problem of the moral acceptability of a new biotechnology, for instance - are the following: 1) The setting up of a small "monitoring team" (1-2 persons) for the application of the Delphi method to a moral problem. It will direct the whole evaluation process. It is preferable to use for this task persons having experience in the field. 2) Selection of a virtual “panel of experts" (4-8 persons), independent and anonymous, which have a good knowledge of the field but mainly a good mastering of some methods of moral decision-making (principlism, utilitarianism, Christian morality, Kantianism, ethical matrix etc.). The plurality of the ethical approaches will be assured. 3) The first Delphi questionnaire is sent to the panel of experts (for testing the terminology, eliminating ambiguities, establishing the stakeholders, choosing the relevant ethical principles). 4) Analysis of the first round of answers and reciprocal adjustment of the experts’ opinions (the answers of the first round are synthesized by the monitoring team and are then returned to the panel members who are required to give them the final shape). 5) Proposal and testing of the second questionnaire (e.g. the consequences of adopting/not adopting the new biotechnology). Some other specialists in the field may be consulted. 6) Analysis of the second round of answers and their adjustment. 7) Proposal and testing of a third questionnaire (e.g. the moral assessment of the case using the method proper to each member of the panel of experts). 8) Evaluation of answers and mutual adjustments. 9) Preparation of a preliminary report by the monitoring team (or a special review team) to present the findings of the exercise.
  15. 15. 15 10) The experts will receive the preliminary form of the final report and will submit it to their own judgment. The report will receive its final form. The various methods of ethical decision-making mentioned above provide a strictly moral evaluation of the new rule or policy, regarded from different moral perspectives. None of them is conclusive. To reach a consensus does not mean to reach the correct result. This method which is meant to generate the convergence of opinions, in conjunction with the set of moral tests, only helps us to assure a clearer structure of the debate and to offer the political team a solid ground for discussion. It identifies those topics that the group of "experts" consider important for the subject examined. The results of a Delphi procedure may support the policy makers to enhance their moral creativity and capacity for ethical decision-making when faced with complex moral issues in situations of incomplete or disputed information. This evaluation process of the same act using several methods produces a strictly ethical verdict signed by the monitoring group; this moral decision also based on the team members’ practical wisdom, being finalized in a report submitted to those who commissioned the evaluation. This report is most often decisive for the final choice. If the result of the report is negative, it is unlikely that we will be tempted to continue the assessment process: we reject that rule or public policy. But this kind of reaction is never entirely certain! It is the prerogative of the applicant (S). He can decide to continue the process even if the technical ethical verdict is negative. It is known, in this respect, that the prostitution is rejected by Kant's tests, as by the utilitarian ones; however, the prostitution is legally permitted in many countries (given some other reasons). By invoking distinct reasons and, on this basis, furthering the evaluation process, one may arrive at a result that is the opposite of that given by the purely ethical test. Moreover, a moral rule is a rule imposed by society (pace Mill); however not imposed from outside, but self-imposed (pace Kant). To be self-imposed it must be known and publicly discussed. An earlier step in the decision process is just this public debate. It can be done through conferences, press releases, manuals, consensus conferences etc. The democratic accreditation of the new rule is not a political fad, but a necessary condition of its morality. Moral rules are public rules and a necessary condition of the existence of an ethical code is to be public. Therefore, to complete an ethical decision-making process we need to set up a second group, often consisting (not of experts, but) of politicians, representatives of the public opinion, laymen etc.; this second group is meant to take the final decision concerning the assessed issue. It will consider first of all the ethical decision of the expert panel, but will judge following other criteria too: political, economic, legal, psychological, etc. The strictly ethical (technical) verdict is only one element of the broader political decision (which we might call broad ethical decision), the latter being taken by means of a multicriteria analysis. Ultimately, the responsibility for the final decision belongs to the group of policy makers and commoners - at the limit, the whole community concerned must emanate the new moral rules they will obey in the future. This is part of the modern conception of morality.
  16. 16. 16 As a matter of fact, it is easy to see that the broad ethical decision, which we have called the social approval of the new moral rule, is not done only by calculating the balance of consequences or the impact of the new biotechnologies on the stakeholders, but it requires a public debate, using various perspectives and ideological commitments regarding (for the case of the biotechnology) the environmental protection, the animal rights, the general ideal of life, the future of industrial agriculture, the political and ideological choices of the evaluators. This multidimensional social approval process occurs either spontaneously and quietly (this is the way various moral "habits" were traditionally approved in history) or it may be organized by institutions, under the form of the public debates, citizen juries or consensus conferences9 . In any case, the community must feel that the new moral rule is her rule. From this perspective, it is increasingly held that one of the defining characteristics distinguishing moral rules is that they acquire authority ultimately by a kind of "social consensus" (T. Beauchamp) by the community’s agreement that they are the best means to achieve the objectives of morality, i.e. to provide the "flourishing" of human beings and opposing those factors which could harm us and affect the quality of our life10 . To subscribe to a new moral rule or to a new ethical code is to recognize that it is a social code, that it must be imposed by society at large, generally respected, and culturally transmitted. Therefore, to have a moral character the process of imposing a new policy ought to be autonomous: that is, it should not come from outside (e.g. from “rulers” or the staff of a company), but from inside (e.g. from the will of all the members of the organization). A code of ethics is morally imposed not by a paternalistic procedure, but by one which is assumed freely and autonomously. This reminds us Kant11 : the typical moral sanction is the internal sanction. All these things remind us another important point: that an ethical code should be public. The moral evaluation issues should therefore be moved from the narrow circle of experts to the public arena; they have to be debated in a transparent manner with those commoners which are affected by them. In a well done democracy the citizens’ attitudes have to be known by the rulers and the ruler’s intentions have to be known by the governed (the principle of transparency or publicity). This process may be left in the hands of hazard or it may be rationally organized. To conclude, an ethical pluralistic method of decision-making has two components: the first - i.e. the strictly ethical test - determines whether a class of actions satisfy or not an integrated battery of ethical tests (e.g. the principle of utility, the ethical matrix, the principles of Christian ethics, the Kantian tests, etc.). Therefore, we shall not apply only the principle of utility or only the ethical matrix, but an integrated battery of tests: their integration is assured by the Delphi method. This first component consists in testing that class of actions by each member of the Delphi panel; it is followed by a synthesis of the outcomes done by the monitor who also 9 V.Beekman, F. Brom, „Ethical tools to support systematic public deliberation about the ethical aspects of agricultural biotechnologies”, Journal of Agricultural and Environmental Ethics, (20), 2007. 10 B. Shoene-Seifert, „Danger and Merits of Principlism” in C. Rehmann-Sutter et al. (eds.), Bioethics in Cultural Contexts, Springer, 2000, p. 117. 11 J. L’Etang, „A Kantian approach to codes of ethics”, Journal of Business Ethics, (10,11), 1992.
  17. 17. 17 makes the ethical assessment report. Obviously, each member of the Delphi panel may remain a partisan of his theory or method, but this meta-procedure allows the assessments convergence and the formulation of a (provisional) verdict. This procedure should be considered as part of the test. The second component is that of the social approval. Some parts of this process take place before the GPDE starts its activity, some other parts follow it. This does not mean that the group of policy makers will review and modify the “moral report”; they will only recognize it and (if positive) will require to check whether it may be socially approved on the basis of some broader criteria. Such a social approval process involves first of all to inform the public about the result of the test and to organize a public debate with as many people as possible. This moment of “publicity” and “autonomous” approval is meant to take into consideration the interests of all stakeholders. Moreover, after the experts’ moral report (RM) was completed, the political group assesses the “weight" of the new policy – therefore the degree of its "overridingness", having in view the social importance of the values protected it (we may live in a society that considers important or not such values as dignity, equality, justice etc.). Depending on the assessment and negotiation of the overridingness degree, sanctions will be associated to the new policy (some typically moral ones, such as educating the individual moral sense and the public attitudes; some other legal). Finally, the group of political decision-making checks for the last time the coherency of the new regulation with the already existent moral and non-moral rules, the amount of available resources (which guarantees its applicability), the degree it satisfies some other criteria related to the political, economic, religious or philosophic beliefs of the members of that society. For example, an ethical decision regarding abortion or the status of human embryos will be influenced by the religious or political beliefs of the decision-maker, by the pressures of the public opinion, by certain specific emotional episodes etc. Or, a strictly technical ethical decision requiring the isolation in hospitals of some dangerous mentally ill persons, if taken during the Cold War period, may have been suspended for reasons of political and geostrategic expediency that are considered more important than the ethical ones in that context (i.e. a dispute took place around the incarceration of anticommunist political dissidents in psychiatric hospitals). All this set of factors influence the final verdict. They probably will not change the expert’s moral assessment (the politicians will not say that to free those dangerous mentally ill persons and therefore to risk the security of the rest of the population is a moral action) but postpone the approval of the new rule requiring the isolation on reasons of political expediency: although we could accept, as rational persons, that the isolation of some mentally ill persons in hospitals is a moral act, it is not expedient yet for political and geostrategic reasons. To facilitate these choices, the Council of Europe agreed that ethical issues in general have precedence over those of expediency or financial convenience, asking at the same time that a new scientific research or technology be assessed having also in view the long-term potential consequences, even if uncertain in the light of the current science (the “precautionary principle”). Another general lesson follows: that it is appropriate to abandon the simplistic habit to consider only the Christian moral pattern when we assess a moral case. There are many other moral perspectives that deserve to be taken into consideration in a democratic society that admits the axiological pluralism. They are as respectable as the Christian ethics and even better equipped from the methodological point of view. Only a pluralistic ethical test is compatible with a pluralistic society.
  18. 18. 18 It is also necessary to work in the direction of creating a variety of ethical tools if we want ethics be taken seriously. This means, among others, to train expert-groups able to coordinate a moral assessment using the Ethical Delphi or to set up consensus conferences. These groups should become active on demand. The poor idea that CSR is the genuine master of all the ethical issues in an organization – a view that is officially encouraged by the EU policies in the field – should also be abandoned. If carefully analyzed, CSR as actually practiced has nothing to do with ethics. It only blocks the spread of the “ethics management” ideas which are really focused on the moral content of an organization. The creation of new ethical decision-making tools (such as the pluralistic one proposed above) is part of an ethics management program and has no relation to CSR. As concerns the moral assessment of actions, the most objective human point of view is not that of a certain moral theory or method, but the combined points of view of several theories or methods used in the benefit and with the democratic participation of a large number of people.