Medicine, Health Care and Philosophy 4: 223–232, 2001.

© 2001 Kluwer Academic Publishers. Printed in the Netherlands.

Scientific Contribution

Moral deliberation: The role of methodologies in clinical ethics

Diego Gracia
Department of Public Health and History of Medicine, Complutense University, Madrid, Spain

Abstract. The experience of the last thirty years has shown that whether the different methodologies used in
clinical ethics work well or not depends on certain external factors, such as the mentality with which they are used.
This article aims to analyze two of these mentalities: the “dilemmatic” and the “problematic.” The former uses
preferably the decision-making theory, whilst the latter emphasizes above all the role of deliberation. The author
considers that Clinical Ethics must be deliberationist, and that only in this context the different methodologies can
be used correctly.

Key words: decision-making, clinical ethics, deliberation, ethical methodologies

Introduction methodology, as any other, must be understood within

a specific framework. Now I believe that this frame-
Ever since the birth of the bioethical movement, many work is more important than the methodology itself.
methods of analysis of ethical problems have been These are the questions I would like to address in this
proposed and the experience gained from their use has paper.
been in general twofold and ambivalent. Handled by
some people, the procedures generally work very well,
but in other hands they run mechanically, incapable The question of the framework: From dilemmatism
of taking into account the richness of reality and the to problematism
necessary nuances; in other words, in some hands the
procedures work, whilst in others they don’t. Another Ethical questions and conflicts can be seen as
curious fact is that nearly all the methodologies work “dilemmas” or as “problems.” There is a huge bibli-
fairly well when used by the former, whilst the latter ography about the “ethical dilemmas” of medicine.2
do not find them useful at all. Evidently, the cause lies This approach is the most popular among the mass
outside the methods. The big question is, where? media and that is the reason why journalists and
My thesis is that it all depends on how proce- communicators continuously use it. When an ethical
dures are used. There are two different approaches problem is discussed on TV, participants sit on either
to bioethical problems, and also to the use of these side of the presenter, in two groups, namely those who
methodologies: the “dilemmatic” approach and the argue in favour and those who argue against the issue
“problematic” approach. The first aims to choose at hand. Therefore there are only two possibilities:
between different possibilities, basing its analysis on positive and negative, assertion or denial. One either
the decision-making theory. In contrast, the second accepts or rejects the problem. The rationale under-
approach stresses the means rather than the end. It lying the debate is as follows: that there always must
focuses on the procedure rather than the conclusion, be an answer to ethical questions, and only one answer.
among other reasons because for this approach it is not The term dilemma is often used in the English
evident that moral problems can be solved always and bioethical language in a very loose sense, simply
that they always have one and only one answer, which meaning moral quandary. Yet its use always has certain
is the same for everybody. The first is a “decisionist” rather conscious implications. The first and perhaps
approach to ethical problems, whilst the second is most compelling implication is that one is faced by
basically a “deliberationist” one. I intend to explain an extreme situation that puts our moral life at stake.
these topics, broadening and furthering my previous This means that one has to choose between two and
approaches to bioethical methodology.1 I do not reject only two incompatible courses of action. This does
my previous work in this field, but now I think that this not mean that the person facing the dilemma already
224 D IEGO G RACIA

knows the right answer. On the contrary, people tend making the right decision is: choose an act with the
to find themselves stuck in dilemmas, because they maximum expected value or utility.4 Decision analysis
do not have any answer at all, and are acutely aware considers the decision with the best score as rationally
and morally troubled by this lack of an answer. In and morally best.5 If this procedure involves delibera-
any case, whenever we face a moral quandary such tion, as some authors suggest, it is only to look for the
as a dilemma, we already know that there are only best possible outcome.6
two answers, which are incompatible with one another. The ethical version of this theory is utilitarianism.
Only one answer is right, but we do not know which As is well known, from the very start utilitarianism has
one. This is when we think that technical proce- been related directly to the development of economic
dures and methodologies could help us. Therefore science, in order to assume the idea of maximization
ethical methodologies serve to help people solve moral of preferred outcomes or utility as the main ethical
dilemmas. criterion. Choosing the highest preferred outcome
This approach considers that only one of these available or possible is not only economically rational
two possibilities can be deemed the right one, and but also the only morally justifiable decision. Since
that the goal of ethics as a discipline is to give the utility can be quantified to some extent, every ques-
reasons and arguments that tip the scales one way or tion can and must have a correct solution. The first
the other, deciding irrevocably which answer is right version of this theory was the so-called “quantitative
and which one is wrong. This is what has been termed utilitarianism”, generally represented by the pioneer
“the decisionist mentality.” Every problem must have Jeremy Bentham. Modern-day utilitarianism cannot be
one and only one rational solution, which can be identified with the theory in force in Bentham’s days,
reached using the right methodology. This method- but the main idea remains the same: the moral duty
ology is that generally known as Decision-making is to choose the best outcome, understood in terms of
theory. Therefore, ethical problems (the problem of probabilities and preferences. Therefore, and at least
which decision is right and which is wrong) can be in theory, each conflicting situation must have one
reduced to technical problems. Ethical quandaries are and only one solution for each participant. This is the
always technical questions incorrectly performed. That typical dilemmatic mentality: there are only two possi-
is the second trait of this mentality, its “technocratic” bilities, the right and wrong solutions, which oppose
nature, understood as the possibility of reducing or and exclude one other.
turning all ethical problems in others of a non-ethical The paradigmatic example of this kind of
yet technical nature.3 dilemmatic mentality is the well-known “Prisoner’s
This mentality arose a few centuries ago with the Dilemma.” It has been constructed as an artificial
discovery of the principal laws of probability. It argues situation in which two prisoners cannot interact and
that a decision is logically and ethically correct when deliberate with one another. Both are in isolated cell-
it coincides with the most probable course of action blocks, with no means of communicating with one
or the highest possibility of success. This is the one another. The prison guards are looking to get an admis-
and the only right decision. If probabilities are time- sion of guilt, so they have given both the same choice:
dependent, one coming before and the other after, either tell them that the other prisoner is guilty, or
then the decision must be taken using Bayes’ theorem, tell them that the other is innocent. Those are the
which asserts that the posterior probability of a state only two choices each one has. If both prisoners say
is its prior probability times the probability of the that the other is innocent, both will spend 10 years
evidence given the state, all divided by the proba- in prison for another crime. If both say the other is
bility of the evidence. This makes it possible to find guilty, both will save their lives, but spend the rest of
the most probable solution of an interrelated problem, their lives in prison. But if prisoner A betrays B by
and therefore the most rational. Each problem has a saying that B is guilty, and B cooperates with A by
rational solution, even if full of uncertainty. saying that A is innocent, B will be executed, despite
The problem of the classical probability theory having trusted and cooperated with A, who will be go
is that it takes into account the objective amount of free after betraying B.7
success of a decision, but not the subjective prefer- The situation is clearly dilemmatic. The question
ences of agents. The mathematician J. von Neumann is how can everyone maximize their individual utility.
and the economist O. Morgenstern were the first Ethicists have been discussing this thorny strategy
to introduce preferences into the decision-making issue for decades, from its beginning in the fifties
process. This was the origin of the Utility Theory, until now. The conclusion has been always the same:
the true beginning of the Decision-making Theory. if the prisoners decide to act in line with the postu-
Decision is not only a problem of probabilities but lates of the rational choice theory, and everyone only
also of preferences or values. Therefore, the key to seeks to maximize their own utility, then they will take
 M ORAL DELIBERATION 225

a suboptimal decision, saving their life but spending bállo, to throw forward, meaning the question that is
the rest of their lives in jail. If they analyze the case put to us or proposed in order to be answered or solved.
in purely “strategic” terms and only seek the best Problems are open questions that we do not know
personal outcome or the best usefulness from their if we can solve, or how. The solution is not present
acts, both must say that the other one is guilty. If from the beginning, and therefore the question is not
they were able to interact, the situation would change to choose between two or more possible answers,
immediately, because they could reach the conclu- but to create or produce the right answer. Reality is
sion that if they cooperated with one another, they always more complex than any possible theory or idea.
would only spend ten years in prison. So, cooperation There is an unavoidable inadequacy between reality
is justifiable within the limits of the rational choice and reasoning. Nobody can understand the entire rich-
theory.8 The lack of cooperation reduces drastically ness of the simplest reality. Only God knows reality
each prisoner’s outcomes or utility. Yet the dilemma fully and perfectly. Human beings can only try to
is distressing not only due to non-optimum nature of imitate God, looking for the truth. They do not know
the decisions taken by the prisoners, but also to the reality properly, and therefore they are not sophoi,
fact that values such as telling the truth, honesty and “wise.” At best, they can attempt to imitate God in
sincerity are at stake. Without them, cooperation is this point, and love to be wise, thus being friends of
impossible. Moral decisions must meet other require- wisdom, that is, “philo-sophers.”
ments, not only the maximization of utility. In other The mismatch between the complexity of facts and
words, morality cannot be reduced to the limits of the simplicity of ideas is especially evident in practical
the decision-making theory. Ethics must include other questions, in politics, in ethics and in technical matters.
factors that are not considered by this theory. This That is why Greek philosophers, especially Socrates
is the first conclusion of this analysis. The second is and Aristotle, believed that in these matters certitude is
that the shocking nature of this dilemma stems from impossible and only probability can be attained. That
the fact that moral rationality is not dilemmatic. Pure is how Socrates has been rediscovered or reinterpreted
dilemmatism is only conceivable in pure ideal and by modernity, after Kierkegaard and Nietzsche.10 This
unrealistic situations, like the Prisoner’s dilemma. is also the new interpretation of Aristotelian ethics.11
Oddly enough, this mentality is today present not Ethical reasoning is not the same level with epistéme
only in consequentialists and utilitarians, but also in or “science” (understood as a certain and universal
many staunch deontologists. This may be due to the knowledge about reality) but with dóxa or “opinion.”
fact that they also think that moral questions can be Opinion is uncertain, but not irrational. It is a type of
resolved exactly, that there is one and only one right órthos lógos, or right use of reason. Here disagree-
answer to them, and that this answer is universal or ment, the coexistence of different opinions, and of
absolute. Staunch deontologism very often works with opinions that differ from those maintained by the
a dilemmatic mentality. It is more engaged in the majority, are always possible. That is the meaning of
decision than in the process, because it means that the the Greek word parà-doxa, paradox.
process is obvious: the direct and deductive application Moral questions are not mathematical and
of principles and norms. When questions are relevant, deductive, but doxical and paradoxical. Different
circumstances and consequences cannot change the people may have different opinions because, among
nature of the moral act. This is the meaning of expres- other things, everyone has a particular perception of
sions, such as “intrinsically good” or “intrinsically reality, different from all others. Aristotle wrote in
bad” actions used so often by staunch deontologists.9 Nicomachean Ethics, that en te aisthései he krísis, “the
The dilemmatic mentality is completely different decision rests with perception.”12 David Ross quoted
to the mentality that I have called “problematic.” The this passage at a crucial point of his book The right
word “dilemma” comes from the Greek word lêmma, and the good, and immediately added: “This sense
what one “takes” (from the verb lambáno, to take), of our particular duty in particular circumstances,
and from the prefix dís, which means “two.” Therefore preceded and informed by the fullest reflection we
dílemma means an argument formed by two opposite can bestow on the act in all its bearings, is highly
and disjunctive propositions, and what was at stake fallible, but it is the only guide we have to our duty.”13
is demonstrated when each one is affirmed or denied. There is a “sense of duty,” the so-called “moral sense.”
This is the logical definition of dilemma, which fits in Ross thinks wisely that there are two types or levels
with its popular meaning as a situation that requires a of moral sense: one general, or prima facie moral
choice between two equal, usually unpleasant or diffi- sense, which makes us sensitive to the general moral
cult alternatives or courses of action, or also as an rules, or to “general duties.” But there is another
ambiguous proposition. However, the word “problem” level of moral sense, “the sense of particular duties
comes from the Greek próblema, derived from pro- in particular circumstances.” The literature about
226 D IEGO G RACIA

moral sense stresses generally only the first of these ning. “Facing and reasoning through dilemmas to
two dimensions.14 Ross, on the contrary, pays much conclusions and choices is a familiar feature of the
attention to the second. Everyone has their own sense human condition.”16 They seem to think that human
of a particular duty in a particular circumstance. conflicts are dilemmatic. These dilemmas, they say,
Circumstances are specific, and therefore they differ are moral when (1) “some evidence indicates that act x
at each moment and for every person. This shows why is morally right, and some evidence indicates that act
the sense of duty is necessarily individual. Everyone x is morally wrong, but the evidence on both sides is
has his own duty, even when different people are inconclusive,” and (2) when “an agent believes that,
judging the same fact. The only thing they should on moral grounds, he or she both ought and ought not
all have in common is “a previous and informed to perform act x.”17 In both cases the dilemma occurs
fullest reflection [they] can bestow on the act in all its when there are two and only two courses of action. But
bearings.” Being moral requires accurate deliberation is this assumption real?
and prudent or wise decisions. As Ross recognizes, Beauchamp and Childress do not answer this ques-
this procedure “is highly fallible, but it is the only tion. But in any case, when there are two or more
guide we have to our duty.” It is fallible because than two courses of action, they think that the moral
deliberation cannot exhaust the content of reality, and decision must be taken after wise and prudent “delib-
therefore much information will remain unknown. eration.” “Deliberation is primarily problem solving
And it is also fallible because the same person in which individuals or groups struggle to develop
can decide differently in diverse circumstances, and assess their beliefs in order to reach a decision
and because different people will also react in a [. . . ] As we deliberate, we usually consider which
different way when facing the same fact. Nobody among the possible courses of action is morally justi-
has the absolute moral truth, which is why collective fied, i.e. which has the strongest moral reasons behind
deliberation is necessary. All current perspectives, the it. The reasons we finally accept express the condi-
perspectives of all the people involved in decisions, tions under which we believe some course of action
are important in order to improve our moral sense. is morally justified”18 This is all they say about delib-
This sense is not only individual but also common, eration. They use this word frequently throughout the
collective, and collective deliberation is necessary in rest of the book, yet without a more precise defini-
any moral action that involves more than one person. tion. Must deliberation reach necessarily one and only
Our knowledge of our concrete moral duties is one answer? Is there always a course of action that
necessarily imperfect and uncertain; in other words, it can be considered the best from the moral point of
is “problematic.” Surprisingly, intellectual uncertainty view? Must this course of action be the same for every-
is not incompatible with moral duty; on the contrary, body? The authors do not answer these questions. My
uncertainty is a typical characteristic of our concrete opinion is that they have a very superficial and incom-
moral duties. Judgments about duties cannot be certain plete idea of deliberation; in other words, their method
but only prudent or wise. And prudence is the art of is a mess of dilemmatism and problematism, or of
taking wise yet uncertain moral decisions. Aristotle decision-making and deliberation. The consequence
said that phrónesis, practical wisdom or prudence, is is that some readers use the system of four prin-
órthos lógos, a right use of reason; it is a right use, ciples with a dilemmatic mentality, and others with
but at the same time with uncertainty. The right use a more problematic one. In the plastic description of
of reason in the domain of ethics leads us to take Clouser and Gert: “Throughout the land, arising from
decisions that are uncertain yet probable or reasonable. the throngs of converts to bioethics awareness, there
That is the idea of phrónesis. And the path to make can be heard a mantra ‘. . . beneficence . . . autonomy
prudent judgments is boúleusis, deliberation. Aristotle . . . justice . . . ’ It is this ritual incantation in the face
says that “no one deliberates about things that are of biomedical dilemmas that beckons our inquiry
invariable . . . but such things [as] might actually be [. . . ] Brandishing these several principles, adherents
otherwise.”15 That is the origin of moral problematism. to the ‘principle approach’ go forth to confront the
Problematism versus dilemmatism: that is the quandaries of biomedical ethics.”19 The accusation of
question. If one uses this viewpoint to analyse the “principlism” is, clearly, the consequence of the dilem-
different methodological proposals made in the field matic and mechanical application of this method, due
of bioethics in recent decades, one must conclude perhaps to the very ambiguity of the description made
that most authors are greatly confused. Perhaps the by its authors.20
most relevant example, due to the book’s huge impact, The same can be said of other relevant methodo-
is the work of Tom L. Beauchamp and James F. logical proposals. It is curious, for instance, that the
Childress, Principles of Biomedical Ethics, in which index of the book by A.R. Jonsen and S. Toulmin,
they use the word “dilemma” from the very begin- The abuse of casuistry, contains an entry on “moral
 M ORAL DELIBERATION 227

dilemmas” but there is neither room for “moral prob- Among other things, because it is not certain that
lems,” nor for “moral deliberation.”21 This lack is not moral problems always have a solution, nor that each
casual, because casuistry has worked traditionally with one has one and only one solution. At the begin-
a mechanical and dilemmatic mentality. It is present ning of his book Howard Brody himself rejects the
in Ancient Times, for instance in Roman jurists, and goal of stating “an ethical decision-making method
Cicero was the first to collect “moral quandaries or that, for any specific case, will yield one and only
dilemmas” in the third book of his work De Officiis.22 one ‘right’ answer as to the ethical things to do.”29
This tradition grew steadily throughout the Middle Some pages later he adds that a frequent error “is to
Ages, in the hands of Canonists and Confessors, and assume that there must be two and only two alter-
reached its apotheosis in modern times. The Meta- natives and then proceed to weigh one against the
physics of Morals of Kant (1797) is one of the most other, possibly ignoring completely the existence of
famous monuments. I wonder if new casuistry is a third course of action that is much more desirable.”
not overly influenced by its own history. And when And he concludes with this commentary: “The human
casuists, old or new, reject the merely dilemmatic mind prefers ‘either-or’ thinking to the complexities
approach, it is due to the influence of another tradi- of juggling three or more alternatives, so this error is
tion, the Aristotelian approach of deliberation and often made unconsciously.”30
prudence. Jonsen has written: “The classical casuists The decision-making theory considers that facts
recognized [. . . ] situations, not as dilemmas, but as and values, the two elements that must be considered
probable conclusions, in which sound reasons do not in order to take a rational decision, can be to some
lead to only one judgment but support diverse conclu- extent quantified. The central thesis of Bayesian
sions. In such cases they permitted either course of decision theory is that decisions must be taken in view
action.”23 Fortunately, throughout history the dilem- of the table of probabilities of the outcomes and the
matic mentality has been influenced, to a certain table of the degree of desirability of each one. All of
extent, by the problematic approach that began with them can be quantified, or at least ordered ordinally,
Socrates and Aristotle.24 and then the right decision must necessarily match
Bioethics has been more heavily influenced the contingency with the highest absolute or relative,
throughout its short history by the idea of settling ordinal or cardinal value.
dilemmas and solving conflicting situations, rather The process of deliberation is quite different
than the idea of deliberating problems. This latter altogether. Here the reasoning is not the consequence
mentality has come to bioethics from outside, espe- of a process of “quantification” but of “argumenta-
cially from political theory, during recent years. tion.” The difference is important. Quantification has
as its goal to resolve the question “rationally” and
completely; whilst the only goal of argumentation is
The question of the procedure: Deliberation as the to be “reasonable,” and therefore “open-ended.” This
method of practical reason is one of the characteristics of the philosophy of our
century, which different schools describe in different
One of the first and most influential books on medical ways. For instance, the hermeneutical movement,
ethics was the one published by Howard Brody in increasingly more influential among European bioeth-
1976, with the title: Ethical Decisions in Medicine.25 icists. As Drew Leder has pointed out, “twentieth-
The very title shows that it is a decision-making century hermeneutics tends to reject the notion that
oriented book. The rational decision theory is the there is a single correct interpretation in favor of
background to its methodology,26 described by the an acknowledgment that any text is susceptible to
author himself as rule-utilitarianism.27 Fifteen years an indefinite variety of readings. This is not to say
later, in 1991, I published another book collecting, that each reading is equally significant or useful;
describing and systematizing many different bioeth- however, one should not foreclose the possibility of
ical methodologies.28 At the end of the book I also multiple interpretations which overlap, supplement,
proposed another methodology. I entitled the book clash, and converse with one another in ways that
Decision procedures in clinical ethics, because at that lead one to a deeper understanding of phenomena.”31
time I was convinced that the goals of these methodol- Leder continues saying: “We no longer conceive
ogies should be the application of the decision-making of ‘rationality’ as a disembodied faculty for appre-
theory to ethics, and most precisely to clinical ethics. hending pure truth but as a communal dialogue which
Today I am not so sure; moreover, I am convinced progresses through revelatory give and take.”32 This
that this approach is not completely adequate. The way, “the bioethicist thus emerges more as a Socratic
true problem is not at the end of the process, in the interlocutor than an ‘answer person.’ He or she is
decision; the actual question is the process in itself. the gadfly who questions the settled presumptions of
228 D IEGO G RACIA

our discourse, dismantling premature claims to truth, no less important in the quest for a problematic and
closure, and virtue. Moreover, he or she is the insti- deliberative bioethics, for instance narrativism.37
gator of cooperative dialogue from which all partici- The works of K.O. Apel and J. Habermas have been
pants learn. If one does not arrive at absolute truth essential for understanding that norms and decisions
(which for Socrates always eluded those caught within can only be considered correct when all the partici-
the mortal frame), one may nonetheless evolve toward pants can assume them freely and reasonably. This
richer interpretations. That is, through careful reading is what Habermas called the (U) principle or prin-
of the text, self-reflection about one’s prejudices, and ciple of universalization: “For a norm to be valid, the
openness to others, one can arrive at an understanding consequences and side effects that its general observ-
and course of action likely to be responsive to more ance can be expected to have for the satisfaction of
features of the situation, and thus more clearly defined the particular interests of each person affected must
and efficacious.”33 be such that all affected can accept them freely.”38
Bioethicist can no more be seen as the “answer The realization of this principle is only possible when
person,” showing us what course of action moral two conditions are met: first, “participation” in a true
reasoning mandates. This is the perspective taken by discourse of all those affected by the norm, and second,
the decision-making theory. Hermeneutics, as all other rational or reasonable “argumentation,” because other-
deliberationist procedures, “undermines this notion,” wise it could not be considered a true “dialogue.”
and at the same time invites the bioethicist to assume Participation of all is a prerequisite, because other-
new roles. Drew Leder describes at least three of them: wise the (U) principle could not be updated. That is
First, “articulator of the perspectives of case partici- why Habermas adds to the “universalization principle”
pants, allowing their voices and concerns to emerge another one that he calls the “principle of discourse
more fully.” Second, “facilitator of dialogue between ethics” or (D). This principle postulates the following:
parties, fostering mutual understanding and respect.” “Every valid norm would meet with the approval of
And third, “the hermeneut not only helps articulate, all concerned if they could take part in a practical
and facilitate dialogue between the various positions discourse.”39
of case participants but also acts as the recaller of The other condition is the possibility or “argu-
contexts and perspectives which are systematically mentation” within true “dialogue.” What is true
obscured.”34 This last function is necessary, he says, dialogue? What kind of discourse and argumenta-
because “we are always, to a degree, blind to our tion are adequate to true dialogue? Is true dialogue
own prejudices; we live in a tradition as a fish in possible in empirical conditions? How can the ideal
water. However, the hermeneut, knowing prejudice is conditions established by the principles (U) and (D)
an inevitable constituent of understanding, is in a better be implemented in the real world? Apel answered
position to become self-reflective about those struc- this question distinguishing two parts in his discourse
tures – historical, political, metaphysical – that limit ethics, Part I, ideal or canonical, and Part II, actual or
and channel our discourse.”35 empirical. Factual conditions can make it impossible
As can be seen, this is a substantially different to meet all the requirements imposed by the ideal
idea of rationality, and also of bioethics. As Leder community of communication in the real world, at a
stresses: “Whereas the standard textbook often given moment. Therefore, exceptions are possible. The
portrays bioethics as a battle between ‘pro’ and ‘con’ only one unavoidable moral duty is the realization of
perspectives, each attempting to attack and destroy the the ideal conditions in the real world in the shortest
other, Gadamer stresses that hermeneutics begins with possible period of time.
a spirit of dialogic openness; one approaches a text (or Habermas has taken quite a different approach. He
another person) with the sense that they have some- thinks that the ideal conditions must be realized in the
thing to teach, a perspective capable of transcending, present world, through the transformation of the social
overturning, or revising one’s own in a productive and political structures. Habermas is not only a philos-
way.”36 opher, but also a social and political thinker. And his
This type of rationality can only be developed thesis is that moral philosophy is necessarily engaged
through dialogue and deliberation. Therefore, hermen- in the realization of the ideal criteria; therefore, in
eutical ethics is closely related to another emerging law and politics. It is impossible for a cogent moral
tradition, discourse ethics. The two types share simi- philosophy to avoid the fields of norms and facts.
larities and differences. Hermeneutics is less ideal Consequently, ethics must influence law and politics.
and more concrete than discourse ethics, which is This is the argument of his book Between Facts and
more clearly intersubjective than the former. Yet both Norms: Contributions to a Discourse Theory of Law
coincide in understanding reason as problematic and and Democracy.40 The political problem is how to
deliberative. There are also other movements that are make suitable facts with norms. And the answer of
 M ORAL DELIBERATION 229

Habermas is to make representative democracies more to function in the actual situations and concretely in a
participatory, and especially more deliberative. Other- hospital setting.
wise one cannot speak either of “democratic ethics” or It is therefore necessary to define deliberation more
of an “ethical democracy.” realistically, as Aristotle conceived it at the very begin-
Habermas’ example is interesting, because not ning. Above all, deliberation is the belief in the incom-
only has he made the effort to understand democ- mensurability of reality, and therefore in the need to
racy ethically and ethics democratically, but also he include all the different approaches and perspectives
has proposed a method or procedure for achieving in order to enrich the discussion and the compre-
this difficult task. This procedure is “deliberation.” hension of things and facts. Deliberation begins with
Habermas took the idea of deliberation from certain the relativization of the one’s own perspective about
theorists of political philosophy, specially from Joshua phenomena, and the capacity to take into account
Cohen, who in 1989 wrote: “The notion of a delib- other people’s perspectives, discussing rationally their
erative democracy is rooted in the intuitive ideal of a points of view, and modifying progressively one’s
democratic association in which the justification of the own view through the process. Deliberation is a form
terms and conditions of association proceeds through of knowledge, because during it everybody engaged
public argument and reasoning among equal citizens. in the process is continuously testing and changing
Citizens in such an order share a commitment to the their own opinions, peacefully, without constraints.
resolution of problems of collective choice through A process of deliberation has worked well when the
public reasoning, and regard their basic institutions as points of departure of all the participants are different
legitimate in so far as they establish the framework for to the ones reached during the dialogue and defended
free public deliberation.”41 This is the right procedure by them at the end of the process. And the frequent
for analyzing practical questions, viz. social, polit- consequence of deliberation is that the final solution
ical and ethical, and therefore the way to manage taken in common did not coincide generally with the
interpersonal relationships. According to Habermas, positions defended by any participant at the beginning
the deliberative democracy of Cohen is based on the of the process.
following postulates: “(a) Processes of deliberation Deliberating is an art, based on mutual respect, a
take place in argumentative form, that is, through the certain amount of intellectual humility, and the desire
regulated exchange of information and reasons among to enrich one’s own comprehension of facts, hearing
parties who introduce and critically test proposals. (b) and interchanging opinions and arguments with the
Deliberations are inclusive and public. No one may be others engaged in the process. Deliberation is a form
excluded in principle; all of those who are possibly of critical and public analysis of one’s own points
affected by the decisions have equal chances to enter of view. It requires certain knowledge, but especially
and take part. (c) Deliberations are free of any external certain skills and above all certain attitudes and char-
coercion. The participants are sovereign insofar as they acter. A person with grave psychological constraints,
are bound only by the presuppositions of communica- such as unconscious fears and rigid prejudices, without
tion and rules of argumentation. (d) Deliberations are the capacity to analyze and verbalize them peacefully
free of any internal coercion that could detract from and without anxiety, has a fairly reduced capability
the equality of the participants. Each has an equal of intervening actively in a process of deliberation.
opportunity to be heard, to introduce topics, to make Experience shows that the very process is educa-
contributions, to suggest and criticize proposals. The tional, improving the behaviour and performance of
taking of yes/no positions is motivated solely by the the persons involved. It can be said that nobody
unforced force of the better argument.”42 knows how to deliberate naturally. Deliberation is
This kind of deliberation is necessarily ideal, not a natural behavior but a moral one. Naturally
because the symmetry between human beings will everyone thinks that they are right, and that anyone
never be complete; because some internal and external else who has a different opinion or belief is either
constraints are unavoidable, etc. These characteristics wrong minded or a bad person. Deliberating is a
would suggest that clinical ethics simply is impossible process of self-education.43 Perhaps it is also a process
due to the fact that full symmetry cannot be reached. of self-analysis, and to some extent also a therapy.
One possible conclusion could be that any attempt at Socrates spent his whole life educating young people
clinical ethics, at solving moral bedside problems, is through deliberation, or in the deliberation process.
indeed a fraud. Yet it is also possible to think that Socrates did not answer any question, but only helped
some kind of deliberation is possible and necessary people find their own answer to the questions.44
also in non-ideal or real conditions, and concretely in Aristotle taught deliberation as the main procedure
the clinical context. How? This should be our task now, of ethics. Practical reason is deliberative. Everyone
to make explicit how a deliberative ethics is supposed deliberates with himself or herself when they take
230 D IEGO G RACIA

a personal decision. And everyone must deliberate opposing values and standards. However, here they
with others when two or more people are affected do not merely ‘split the difference’ fairly, nor do they
by the decision. Therefore, deliberation is the main find some impartial third position. If standards of fair-
procedure of discussing questions and taking decisions ness and impartiality are at issue, the very procedures
interpersonally. The doctor-patient relationship is not of compromise that appeal to them must be modified
merely a contractual relationship, or a process of nego- in public deliberation. In these cases of conflict, a
tiation, as is frequently affirmed. The doctor-patient compromise is formed as each party modifies his or
relationship is a common process of deliberation.45 her interpretation of the common framework, often
The same is true of Hospital Ethics Committees. Their modifying that framework itself in doing so.”51
rationality can neither be dilemmatic, nor strategic, Bioethics deals necessarily with the values involved
but deliberative. This, perhaps, is one of the most in health and disease, the life and the death of human
serious problems they face today, namely that many beings. Therefore, bioethics is a process of delib-
of them are working in a quite inappropriate way. eration about the individual and collective ends of
Similarly, the work of all other private or public human life. Consequently, it cannot be constrained to
Commissions or Committees must be deliberative. The the limits of hospitals and schools of medicine. The
National Commission and the President’s Commission goals of human life are primarily social and polit-
do not owe their success to the reasons adduced by ical. And because the ends of medicine are derived
some of its members, but to the use of a paradig- from these goals, it is necessary to conclude that
matic deliberative procedure.46 Finally, health care bioethics is engaged inevitably in matters that occur
as a social and political institution should be also outside hospitals and outside the health care profes-
analyzed within the framework of the so-called delib- sions. Bioethics is not only a professional ethics, but
erative politics, or deliberative democracy. Oregon was also and principally a part of political philosophy.
a first attempt in this direction.47 Daniel Callahan has As Ezekiel Emanuel has pointed out, “to make clin-
proposed this way in recent years for tackling some of ical decisions for an individual patient, the practicing
the most cogent bioethical problems, such as stopping physician must specify and balance the ends of medi-
the use of life sustaining treatment in elderly people cine. But this process occurs within a framework
and distributing the scarce economical resources.48 constructed from ethical conceptions that have been
The same can be said of other proposals, like those elaborated by political philosophy. Medical ethics is
of Amy Gutmann.49 Perhaps we are at the start of thus a subfield of political philosophy.”52 One does not
a major change in bioethics, from a dilemmatic and have to agree with Ezekiel Emanuel’s thoughts about
decisionist mentality to other more problematic and political philosophy, to accept his idea of bioethics as a
deliberationist approach. social and political matter, and not only a professional
From a deliberative point of view, ethics is one. Emanuel is a convinced “communitarianist,” but
necessarily bound with politics, just as Aristotle some other important “contractarian” authors, like
stated. In fact, the modern theory of deliberation Habermas or Rawls, do think along the same lines.
has been developed more by political philosophers For instance, Rawls has stressed the importance of
than by ethicists.50 Relationships between human what he has called “deliberative rationality,” as the
beings should be based on deliberative procedures, in way of formulating rational plans in matters of justice,
order to make them reasonable and moral. In polit- and therefore of developing laws and norms.53 Delib-
ical relationships, nowadays there is only room for eration is the method of practical reason. Therefore,
“strategic rationality”. And deliberation is perhaps the it must be promoted when the values and ends of
best remedy for strategic politics, looking for true human life, individually and collectively, are at stake.
moral compromises. “The process of reaching any Bioethics should work in the same way.
compromise is the same for all its forms, including
moral compromises: the give and take of discussion
and debate. It is by virtue of this process that moral Conclusion
compromises are still compromises rather than mere
coercion. However, moral compromises about deep Practical reasoning is deliberative. But deliberation is
conflicts are quite different from the standard cases a very difficult task. It requires many conditions: lack
of strategic bargaining or trade-offs. Their structure is of external constraints, good will, capacity to give
dialogical and hence requires some forum for public reasons, respect for others when they disagree, an
deliberation. Their aim or result is not the balancing ability to listen, disposition to influence and be influ-
of moral concessions from both sides but a change enced by arguments, a desire to understand, cooperate
in the common framework for democratic delibera- and collaborate. This is the framework of a true delib-
tion. As in all compromises, the parties begin with eration process. Deliberation rests not on “decision”
 M ORAL DELIBERATION 231

but on “commitment.” Within this framework, almost 15. Aristotle, Nicomachean Ethics, 1112a, 1140a.
all existing bioethical methods can be useful to some 16. T.L. Beauchamp, J.F. Childress, Principles of Biomedical
extent. Outside it, not only will they be superfluous but Ethics, 4th edn. New York: Oxford University Press, 1994,
also sometimes dangerous. p. 11.
17. T.L. Beauchamp, J.F. Childress, Principles of Biomedical
Ethics, 4th edn., p. 11.
18. T.L. Beauchamp, J.F. Childress, Principles of Biomedical
Notes Ethics, 4th edn., p. 13.
19. K.D. Clouser, and B. Gert, “A Critique of Principlism”,
1. D. Gracia, Procedimientos de decisión en ética clínica. Journal of Medicine and Philosophy 1990; 15: 219.
Madrid, Eudema, 1991. D. Gracia, “Bioetica clinica”, in: 20. J.F. Childress, “Principles-Oriented Bioethics: An Analysis
S. Spinsanti (Ed.), Bioetica e Antropologia Medica. Roma: and Assessment from Within”, in: E.R. DuBose, R. Hamel,
La Nuova Italia, 1991, pp. 43–69. D. Gracia, “Métodos L.J. O’Connell (Eds.), A Matter of Principles? Valley
de análisis de problemas éticos en la clínica humana”, Forge, Pennsylvania: Trinity Press International, 1994,
Anales de la Real Academia Nacional de Medicina, 1992; pp. 91–92.
CIX: 371–386. D. Gracia, “Principios y metodología de la 21. A.R. Jonsen, S. Toulmin, The Abuse of Casuistry: A History
bioética”, Quadern Caps, 1993; (19): 7–17. of Moral Reasoning. Berkeley: University of California
2. R.S. Duff and A.G.M. Campbell, “Moral and Ethical Press, 1988, p. 415.
Dilemmas in the Special-Care Nursing”, The New 22. A.R. Jonsen and S. Toulmin, p. 75.
England Journal of Medicine, 1973; 289: 890–894. R.A. 23. A.R. Jonsen, “Morally Appreciated Circumstances: A
McCormick, “To Save or Let Die: The Dilemma of Modern Theoretical problem for Casuistry”, in: L.W. Summer,
Medicine”, J.A.M.A., 1974; 229: 172–176. C.W. Gowans J. Boyle (Eds.), Philosophical Perspectives on Bioethics.
(Ed.), Moral Dilemmas. New York: Oxford University Toronto: University of Toronto Press, 1996, p. 41.
Press, 1987. W. Sinnot-Armstrong, Moral Dilemmas. 24. J.F. Keenan, T.A Shannon (Eds.), The Context of Casuistry.
Oxford: Basil Blackwell, 1988. B. Lo, Resolving Ethical Washington, D.C.: Georgetown University Press, 1995.
Dilemmas: A Guide for Clinicians. Baltimore: Williams & 25. H. Brody, Ethical Decisions in Medicine. Boston: Little,
Wilkins, 1995. Brown and Company, 2nd edn., 1981.
3. D.M. Eddy, Clinical Decision Making: From Theory to 26. H. Brody, Ethical Decisions in Medicine, pp. 29–33.
Practice. Sudbury, MA: Jones and Bartlett Publishers, 27. H. Brody, Ethical Decisions in Medicine, p. 356.
1996. 28. D. Gracia, Procedimientos de decisión en ética clínica.
4. D.A. Albert, R. Munson, M.D. Resnik, Reasoning in Medi- Madrid, Eudema, 1991.
cine: An Introduction to Clinical Inference. Baltimore and 29. H. Brody, Ethical Decisions in Medicine, p. xvii.
London: The Johns Hopkins University Press, 1988, p. 219. 30. H. Brody, Ethical Decisions in Medicine, p. 9.
5. G.D. Rennels, A Computational Model of Reasoning from 31. D. Leder, “Toward a Hermeneutical Bioethics”, in: E.R.
the Clinical Literature. Berlin, Heidelberg, New York: DuBose, R. Hamel, L.J. O’Connell (Eds.), A Matter of
Springer-Verlag, 1987, p. 28. Principles? Valley Forge, Pennsylvania: Trinity Press Inter-
6. See: B. Skyrms, The Dynamics of Rational Delibera- national, 1994, p. 252.
tion. Cambridge, Massachusetts, Harvard University Press, 32. D. Leder, “Toward a Hermeneutical Bioethics”, p. 254.
1990. 33. D. Leder, “Toward a Hermeneutical Bioethics”, p. 255.
7. W. Poundstone, Prisoner’s dilemma: John von Neumann, 34. D. Leder, “Toward a Hermeneutical Bioethics”, p. 255.
Game Theory and the Puzzle of the Bomb, 2nd edn. 35. D. Leder, “Toward a Hermeneutical Bioethics”, p. 255.
Portland, OR: Book News, 1993. 36. D. Leder, “Toward a Hermeneutical Bioethics”, p. 255.
8. D. Gauthier, Morals by Agreement. Oxford: Clarendon 37. See, H.L. Nelson (Ed.), Stories and Their Limits: Narrative
Press, 1986, Chapter III, “Strategy: Reason and Equilib- Approaches to Bioethics. New York, Routledge, 1997.
rium”, pp. 60–82. 38. J. Habermas, Moral Consciousness and Communicative
9. John Finnis, Moral Absolutes: Tradition, Revision, and Action. Cambridge, Massachusetts: The MIT Press, 1990,
Truth. Washington, D.C., The Catholic University of pp. 120, 197.
America Press, 1991. 39. J. Habermas, Moral Consciousness and Communicative
10. P.R. Harrison, The Disenchantment of Reason: The Action, p. 121.
Problem of Socrates in Modernity. New York, State Univer- 40. J. Habermas, Between Facts and Norms: Contributions to
sity of New York Press, 1994. a Discourse Theory of Law and Democracy. Cambridge,
11. See: P. Aubengue, La prudence chez Aristote. Paris, Presses Massachusetts: The MIT Press, 1996.
Universitaires de France, 1963. E. Berti, Le ragioni di Aris- 41. Quoted by J. Habermas, Between Facts and Norms: Contri-
totele. Bari, Laterza, 1989. C. Natali, “Etica”, in: E. Berti butions to a Discourse Theory of Law and Democracy,
(Ed.), Aristotele. Bari, Laterza, 1997, pp. 241–282. p. 305.
12. Aristotle, Et Nic II,9: 1109b 24; IV,5: 1126b 4–5. 42. J. Habermas, Between Facts and Norms: Contributions to a
13. W.D. Ross, The Right and the Good. Oxford: Clarendon Discourse Theory of Law and Democracy, pp. 305–306.
Press, 1930, p. 42. 43. See J.T. Dillon (Ed.), Deliberation in Education and
14. See, for instance, J.Q. Wilson, The Moral Sense. New York: Society. Norwood, New Jersey, Ablex Publishing Corpora-
Free Press, 1993. tion, 1994.
232 D IEGO G RACIA

44. See: G. Vlastos, Socrates: Ironist and Moral Philosopher. The Ends of Human Life: Medical Ethics in a Liberal Polity.
Ithaca, Cornell University Press, 1991. G. Vlastos, Socratic Cambridge, MA: Harvard University Press, 1991, pp. 210–
Studies. Cambridge University Press, 1994. Th.C. Brick- 212.
house and N.D. Smith, Plato’s Socrates. New York, Oxford 48. D. Callahan, Setting Limits. New York: Simon and
University Press, 1994. Schuster, 1987. D. Callahan, What Kind of Life. New York:
45. E.J. Emanuel, L.L. Emanuel, “Four Models of the Simon and Schuster, 1990.
Physician-Patient Relationship”, JAMA 1992; 267(16): 49. A. Gutmann and D. Thompson, “Deliberating about
2221–2226. Bioethics”, Hastings Center Report 1997; 27(3): 38–41.
46. The “Committee on the Social and Ethical Impacts of 50. See: J.S. Fishkin, Democracy and Deliberation: New
Developments in Biomedicine,” of the Institute of Medi- Directions for Democratic Reform. New Haven and
cine of the National Academy of Sciences, has analysed in London, Yale University Press, 1991. A.G. Gundersen,
a complete report the work made by the different Amer- The Environmental Promise of Democratic Delibera-
ican bioethical commissions. And the conclusion reached tion. Madison, Wisconsin, The University of Wisconsin
is that the goal of these commissions should be what they Press, 1995. J. Bohman, Public Deliberation: Pluralism,
call “Bioethics Deliberation.” Committee on the Social and Complexity, and Democracy. Cambridge, MA, The MIT
Ethical Impacts of Developments in Biomedicine, Society’s Press, 1996.
Choices: Social and Ethical Decision Making in Biomedi- 51. J. Bohman, Public Deliberation: Pluralism, Complexity,
cine. Washington, D.C.: National Academy Press, 1995. and Democracy. Cambridge, MA: The MIT Press, 1996,
47. B.L. Hines, Oregon and American Health Decisions: A p. 91.
Guide for Community Action on Bioethical Issues. Wash- 52. E.J. Emanuel, The Ends of Human Life: Medical Ethics in
ington, D.C.: Department of Health and Human Services, a Liberal Polity, p. 23.
1985. R. Crawshaw, M.J. Garland, B. Hines, and C. Lobitz, 53. J. Rawls, A Theory of Justice, revised edition. Cambridge,
“Oregon Health Decisions: An Experiment with Informed MA: The Belknap Press of Harvard University Press, 1999,
Community Consent”, Journal of the American Medical pp. 365–372.
Association, 1985; 254: 3213–3216. See: E.J. Emanuel,