Legalism and Responsibility

A somewhat different approach to the limitations of rights-based moralities has been developed by John Ladd ["Legalism and Medical Ethics." Contemporary Issues in Biomedical Ethics. J. W. Davis et. al. Eds.. Clifton, NJ: Humana Press, 1978: 1‑35]. Ladd criticizes what he calls "legalism" in medical ethics and argues for moving away from a legalistic approach to one based on the notion of responsibility. He writes, "By `legalism' I shall mean: `the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules'"(1).

According to Ladd, legalism leads to the "almost exclusive use of the concept of rights as a category of analysis for problems in medical ethics....As a result,...our view of these problems and how to go about resolving them is unduly narrow and dogmatic, i.e. "legalistic" in the worst sense" (6). The legalistic approach is limited in the medical and other contexts because of its essential reliance on the notion of rights, and therefore, on the limitations of an exclusively "rights-based" approach to ethics. There are, he argues, three essential features of rights which make them particularly inappropriate in the medical context: "(1) the peremptory nature of rights, (2) the particular kind of interpersonal relationship implied in the appeal to rights, and (3) the ethical importance of distinguishing between the possession and the exercise of a right" (16).

First, "unlike other moral considerations, such as appeals to generosity, appeals to rights are appeals that are peremptory; to secure them it is usually permissible to use coercion, either in the form of legal action or in the form of self‑help" (16). Second, rights "represent a relationship between two persons (or parties): the right‑holder and the right‑ower. To have a right is to have a right against someone (or against anyone or everyone)" (17). Third, "one can possess a right only if one can choose not to exercise it" (17): "Strictly speaking, this condition requires that right‑holders (and right‑owers) be competent adults capable of self‑directed choice." Ladd argues that, "these three properties of rights show why it is sometimes quite inappropriate ethically to base medical decisions on the notion of rights alone. For neither medical advice nor patients' requests need be peremptory, that is, advanced as demands backed by force, nor does the doctor‑patient relationship need be an adversary one" (18). Generally speaking, "standing on one's rights is a last ditch stand, to be taken only after communication has broken down or when there was no hope for communication to begin with" (20). "Indeed, if one insists on a right, it will more than likely destroy the relationship altogether because it implies the absence of trust, which may be more important ethically. That is why the appeal to rights is sometimes inappropriate, improper, and immoral" (19).[i] A fourth feature of the notion of rights, acording to Ladd, is that there can be no rights without rules: "it is quite impossible to understand what is involved in asserting a right without examining a rule, or a possible rule, that it refers to or with which it is correlated in some way" (7).

But, rights and the rules they are based on, Ladd argues, are often mistakenly treated as context-independent guides to action: [I]n dealing with issues of medical ethics, and with other kinds of ethics that are concerned with problems of modern life, we must begin by recognizing the contextual character of rules, practices, and concepts. Legal answers are relevant in legal contexts, but may not be so in other contexts; by the same token, some moral categories may be appropriate in one context and quite inappropriate in other contexts. In general, then, we must take into account the context in which problems arise and in which our rules, principles, etc. are designed to operate before we can determine how and to what extent they are valid for the radically new kinds of situation that arise in modern medicine and modern life in general (4).

Ladd contrasts the rule-guided, context-independent, "right-based" approach to moral questions with an approach which he terms "the ethics of responsibility." Responsibility, unlike rights, operates contextually relying on the discretion of the moral agent to determine what is the morally "best" response to make in a given situation. While agents may have recourse to moral and legal "rules" in making these judgments, the ethics of responsibility acknowledges that it may not always be possible to bring any particular action‑situation completely under rules. Situations calling for moral judgments are often unique and require the moral agent to devise a "fitting" response, not just one that follows a rule.

In the medical context, "the unreflective acceptance of an ethics of rights in preference, say, to an ethics of responsibility, inevitably leads to moral confusion and irresponsibility...for the simple reason that the ethics of rights rests on the twin assumptions that, from a moral point of view, someone must have a right and that, in the ultimate analysis, rights relationships can only obtain between equals" (29). As an alternative, he suggests, "we need [an ethics] that covers such things as caring, as providing for another person's needs‑‑in more general terms, we need an ethics of giving and receiving" (22). The ethics of care and the VCP provide the basis for such an approach to normative ethics. It may also enable us to better understand the sorts of moral relationships that exists between "unequals".

Ladd's views are consonant with my own; the doctor-patient relationship is a special moral relationship characterized by the VCP as one in which the physician or caregiver has special responsibilities to protect her patient that cannot be reduced to or entirely derived from the patient's rights. These responsibilities are highly discretionary, but non-optional in the sense that the physician can be rightfully blamed or called to account for failing to fulfill them, even though they are also non-peremptory in that no one can demand that these responsibilities be fulfilled as their right.

The reflections in the last two sections, then serve to cement the proposal that there is a class of moral obligations, what I call moral responsibilities, that are distinct both from peremptory duties derived from the rights of others and from supererogations.

Having reviewed the meaning of the term "responsibility" we are now in a position to consider and respond to several objections to the kind of account I have been developing.

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