When is it Moral Just Because it is Normal?
Medical decisions in the US and China, whistleblowing, and moral relativism.
In the U.S. it is not only customary, but law, that when a person is ill and incapacitated, and you have to make a decision about treatment for them, you use the “substituted judgment” test. You ask: what would they want if they were conscious and clear-headed about this? For instance, if you have to decide whether your friend should get a blood transfusion, and she is a Jehovah’s Witness who opposes this, but you are not and you believe a transfusion will save her life, you go with what she would want, not what you want or even what you think is in her best interest. To decide on the transfusion would be wrong.
In China there is no such custom nor law. There the practice you might describe as a “best interest of the family” judgment. You make some decision on the basis of what is best for the family surrounding your friend or loved one. If you conclude that its a transfusion to keep your friend alive, then that’s what the doctor will administer, regardless of whether your friend happened to be a recent convert to Jehovah’s Witness. To decide against the transfusion would be wrong.
Moral relativists point to the outsized value of respecting autonomy in the U.S., and the outsized value of respecting family and community interests in China, and say that these differing values generate different moral norms in the same circumstances, and that both of these value sets are permissible, and thus, moral relativism is true.
I don’t think I was ever a moral relativist, even as a freshman in college. I find most arguments for moral relativism unconvincing. But I actually agree with the moral judgments here, i.e., it is right in the US to respect your friend’s Jehovah’s witness beliefs and refuse the transfusion, and it is right in China to decide to give the transfusion out of the best interest of the family. But I’m skeptical that the phenomena under description here is rightly called “moral relativism.”
But semantics aside, there is a very interesting question here about the relationship between sociological facts about the kind of values and norms held, and commonly known to be held, in a particular community, and the moral truths (what is permissible, impermissible) in that community. We all know some sociological facts do not determine moral truth. To use an Ethics 101 example, the widespread adoption and common knowledge assumption that chattel slavery is permissible, for example, does not make slave-owning in any community okay. However, I do think that in other situations, what everyone in a community values and the norms to which they have customarily adopted do have some role in determining moral facts, as in the case of US versus China practices on medical decision-making. But when do such sociological facts determine moral reality, and when don’t they?
I came to this question working on the first episode of the next season of Hi-Phi Nation (the episode is going to be so good!). In it, I look at a community that seems to be in the grips of what I’ll call a Legalistic mindset. Leaders and members consider whether their conduct was wrong as wholly a matter of what official rulebooks permit or restrict, like regulatory agencies, accreditation organizations, or the American Bar Association, things like that. Something bad happened in the community. But it turns out nobody was out of compliance with existing rule books. But as you know, these rulebooks are not comprehensive and leave open a lot of conduct that is pretty bad, but are officially not prohibited.
This happens all the time. For example, no book tells doctors how to prescribe drugs for off-label uses. Many doctors do, some don’t at all, and some push so many opioids or SSRIs that they leave a trail of addicted patients or very mentally unwell people that end up destroying whole communities. That’s morally objectionable, but were not prohibited by any rule-book (there are now more guidelines than there were about opioid prescribing for instance).
In any case, when there is such a community, a weird thing happens when someone within it decides to blow the whistle and say “hey, that doctor over there, he’s over-prescribing opioids and just a shill for industry, let’s collectively call him out and sanction him!” The rest of the community considers the whistleblower the trouble-maker. They shame, ostracize and sometimes even drum them out of the profession. These are all practices consistent with the community thinking that the whistleblower did something wrong, and must be punished.
My argument in the episode is that either the whistleblower is mistaken about the moral facts about their community, or the rest of the people are. The Legalists believe they are in fact in a moral universe of rule-compliance by official books, and since they were in compliance, the whistleblower is in the wrong here, seeking to sanction or punish something that was morally okay. One possibility is that the Legalists are mistaken. Moral reality is such that they’re actually in the wrong, even if its true that they were in minimal compliance with rules. The sociological facts about what everyone thought the rules of morality were don’t make something a moral truth in circumstances such as these.
The other possibility is that the Whistleblower believes they are in a moral universe where doctors are not morally allowed to make off-label prescription in the interest of making a little extra money from pharmaceutical companies, but he, the whistleblower, is mistaken. (Assume that the doctor does not consciously believe they are doing worse by their patients. They don’t take themselves to be violating the Hippocratic oath). It turns out that in reality, the Whistleblower is in a universe where morality consists in compliance with rule-books, and since this is not in the rules, the doctors were doing a permissible act. The Whistleblower, then, really is in the wrong. They are a self-righteous snitch, and the community is right to punish him.
Now I think this is a clear case where the Legalists are wrong, and the Whistleblower is right. This is more like the slavery case than the Chinese versus US practice of surrogate medical decision-making. No matter how much I try get into the Legalist mindset, or try to reconstruct their community where they value rules and procedures and compliance documents so much that it determines moral fact, it just doesn’t pass the Euthyphro test. Legalists are living in a moral illusion, just like slaveowners. But the Chinese versus US case does pass all the right tests for me. But why?
I don’t know how to square my judgments here. If I had to guess, I would say that in the US-China surrogate-decision-making case, it is morally indeterminate which of the two sets of values, personal autonomy or family best-interest, takes priority over the other. These are values where it is equally morally permissible to have one take precedence over the other, and ones where both have equally importance. And communities evolve to have customs and conventions around these three possibilities. Those customs and conventions then have prima facie moral weight that is not defeated by other factors, so they determine moral truth in those communities.
However, in the Legalist/Whistleblower case, there is no moral indeterminacy as to which of two sets of values, (1) minimal compliance to official rules, or (2) treating other human beings as ends in themselves, takes priority over the other. There is no intrinsic moral value to compliance with rules. (Of course I would say this, I just wrote a whole book arguing for it!). On the other hand, treating human beings as ends in themselves is an example of intrinsic moral value par excellence.
But that’s just a guess. I’m sure moral theorists have a lot more to say about this. But one thing I learned from making the episode is that I don’t think the Legalists are insincere or self-deluded when they try to make an argument that they’re morally in the clear as a result of minimally complying with rules. There is a mindset you get into where you are simply unable to see outside of your sociologically-determined moral universe. The preservation of that universe, and all the good you think it does, makes you blind to the fact that particular practices within it can be immoral. It’s an all-too-familiar feature of the human condition.
Maybe these people are a little less blameworthy for their blindness, on my view, because it turns out that sometimes the sociologically-determined moral universe is the moral universe. It happens in rare but very real cases, and its actually hard to figure out if you’re in one of those cases, or if you are one of the many sheep walking around thinking that chattel slavery is okay because everyone else does.
This is interesting, because I reject the set up, and I bet many other ethicists will too. In the medical scenario, I think that either the substituted judgment standard or the best interest standard is right, everywhere, not that one can be right in one place and the other right in another place. That is, I think if you spell out the features of the case sufficiently, it will turn out that the right thing to do won’t depend on whether you drop the case in the US or in China.
Thus, for example, if the patient had clearly expressed wishes for X after she goes into a coma, and this has been consistent her whole life, and doing X is trivial, and doing ~X is very violent and traumatic, and all this is common knowledge, and etc. etc. etc. (add as many favorable details as you like), then the right thing to do is X, and it won’t matter if you add at the end “and by the way, this is all happening in… CHINA.”
Conversely, if the patient’s wishes are hard to know, and doing ~X is trivial, and the consequences of X are really really bad, and all this is common knowledge, and etc. etc. etc. (add as many unfavorable details as you like), then the right thing to do is ~X, and it won’t matter if you add at the end “and by the way, this is all happening in… AMERICA.”
More generally I follow James Rachels’s classic introductory textbook in thinking that, to the extent that one might think morality is relative, we’re really just thinking about etiquette or convention, like what conventional behavior counts as being polite or rude in one culture or another. But morality is more like “don’t be rude”, which doesn’t vary across cultures. And the medical debate between substituted judgment and best interests in cases of incompetence are, I think, clearly about competing ethical values, rather than about different conventional ways one might express the same ethical value (maybe the overarching ethical value of “being nice”?).