The injustice of enforced equal access to transplant operations: Rethinking reckless claims of fairness

Journal of Law, Medicine and Ethics

Volumn 35, Issue 2, 2007, Pages 256-264

  Engelhardt Jr , H Tristram ^a,b  

^a RICE UNIVERSITY   (United States)

^b BAYLOR COLLEGE OF MEDICINE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ETHICS; HUMAN; MORALITY; ORGAN TRANSPLANTATION; PATIENT SELECTION; PHILOSOPHY; SOCIAL JUSTICE;

HUMANS; MORALS; ORGAN TRANSPLANTATION; PATIENT SELECTION; PHILOSOPHY; SOCIAL JUSTICE;

EID: 34249047629     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2007.00134.x     Document Type: Article

References (25)

1. In this essay, "coercion" isused to identify the unjustified use of force to place a person in a state to which he does not consent. Coercion is to be contrasted with manipulation, which identifies the peaceable offering of a benefit to which the person benefiting has no claim. This benefit induces that person to consent to being in a state into which he would not enter, were it not for the offer of this benefit. For two explorations of the difference between coercion and manipulation, see R. Nozick Coercion in S Morgenbesser et al., eds., Philosophy, Science, and Method (New York : St. Martin's Press 1969 440-72; see also J. Rudi-now, "Manipulation," Ethics 88 (1978): 338-47.
2. Not only does the American Constitution set significant barriers against majoritarian tyrannies, but Anglo-American constitutional history, with its recognition of the rights of Englishmen, sets boundaries that are accepted as background that limit conditions on legislation. For example, though there is no constitutional prohibition (although membership in the European Union has complicated matters) against establishing by law an inquisition to fight heresy in the United Kingdom, the background constitutional history recognizes this as improper. For an account of the cultural commitments that framed British restraint in order to establish a limited constitutional monarchy in the absence of a written constitution, see the account given by A. V. Dicey (1835 1922). A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis : Liberty Fund 1982).
3. This essay does not address or explore those areas of human interaction where seemingly innocent persons can, in fact, be aggressors, such as when an individual decides against a vaccination that can put others at unconsented-to risks, as in a pandemic.
4. The presence of robust moral diversity has not only defined the past but our present as well. See, for example, J. D. Hunter, Culture Wars: The Struggle to Define America (New York : Basic Books 1991) and S. P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Touchstone, 1996).
5. The difficulty of establishing the priority of the right over the good as well as of morality over prudent rationality was recognized by Kant. I. Kant, trans. N Kemp Smith, Kant's Critique of Pure Reason (London : Macmillan 1964 at 639, A811-B839. Morality, by itself, constitutes a system. Happiness, however, does not do so, save in so far as it is distributed in exact proportion to morality. But this is possible only in the intelligible world, under a wise Author and Ruler. Such a Ruler, together with life in such a world, which we must regard as a future world, reason finds itself constrained to assume; otherwise it would have to regard the moral laws as empty figments of the brain, since without this postulate the necessary consequence which it itself connects with these laws could not follow. Hence also everyone regards the moral laws as commands; and this the moral laws could not be if they did not connect a priori suitable consequences with their rules, and thus carry with them promises and threats.
6. In order dramatically to bring across the contrast between prudential rationality and moral rationality, one might consider the following choice. If one acts in one particular way, he saves himself and his family and friends from a prolonged and painful death by torture and securely wins power and financial resources. If one acts in a different fashion, he and his family and friends experience a prolonged and painful death by torture, but he must be responsible for an innocent person's painless death. Prudential rationality would dictate that one would choose the first and moral rationality the second. By invoking the postulates of pure, practical reason, Kant recognizes a deep secular irrationality in acting morally in such circumstances.
7. For an account of English culture's loss of recognition of the existence of God, see A. N. Wilson, God's Funeral (New York : W. W. Norton 1999).
8. At the Battle of Jena on August 6, 1806, Napoleon defeated the last Western emperor, Francis II, sovereign of the Holy Roman Empire, and brought an end to the occidental Christian empire. This was among the great watersheds in history. Although some have even argued that this event marked the end of history, it constituted the high point, as well as nearly the end, of Enlightenment aspirations. For a critique of those who regard the event as marking the end of history, see P. T. Grier, "The End of History, and the Return of History," The Owl of Minerva 21, no. 2 (Spring 1990): 131-144. Depending on one's perspective, the empire in the East ended either on Tuesday, May 29, 1453, when Mohammed II defeated the last Roman Emperor Constantine XI, or with the martyrdom of St. Nicholas II, the last czar, on July 17, 1918. The result in Western Europe was the emergence of a Sozialstaat with a thick constitutional commitment to claim rights.
9. R. Rorty, Contingency, Irony, and Solidarity (Cambridge : Cambridge University Press 1989 at 59.
10. G. E. M. Anscombe Modern Moral Philosophy Ethics 33 (January, 1958 1-19, at 6.
11. The principle of totality was developed by Thomas Aquinas See Summa Theologica II-II q 65, a.1. A view of this sort was even embraced by Immanuel Kant. See Metaphysical Principles of Virtue, in Königlich Preußischen Akademie der Wissenschaften, ed., Kants gesammelte Schriften vol. 6 (Berlin : 1907 at 423.
12. If the rich forbid competent adults to sell their organs, they exploit the poor because (1) they restrict the range of free choice open to the poor, and (2) they impose a view of proper action on the poor against their will, which may in many circumstances cause the poor to suffer more, so that the rich can feel moral satisfaction in the constraints they have imposed.
13. Clement of Alexandria The Stromata Book 2, Chapter IV, in A. Roberts and J Donaldson, eds., Ante-Nicene Fathers vol. 2 (Peabody, MA : Hendrickson Publishers, 1994 at 350.
14. D. Laertius, Lives of Eminent Philosophers, IX. 88, and S. Empiricus, Outlines of Pyrrhonism, I.164.
15. M. J. Cherry, Kidney for Sale by Owner (Washington, D.C. : Georgetown University Press 2005).
16. J. S. Taylor, Stakes and Kidneys: Why Markets in Human Body Parts Are Morally Imperative (Burlington, VT : Ashgate 2005).
17. For a defense of the existence of a moral truth accessible through noetic (a form of mystical) knowledge, see H. T. Engelhardt, The Foundations of Christian Bioethics (Lisse, the Netherlands : Swets & Zeitlinger 2000 Chapter 4.
18. Substantively controversial claims regarding forbearance rights are for the most part associated with controversies as to whether particular individuals should be recognized as persons (e.g., as in the case of disputes with regard to the morality of abortion, as well as the killing of embryos in order to harvest embryonic stem-cell lines).
19. Though there are great variations in the character and extent of welfare rights, in all polities, there are legal prohibitions of theft, rape, and murder. Cardinal forbearance rights, not material rights, appear to be universally recognized as necessary for the rule of law (i.e., for a Rechtsstaat).
20. For an exploration of the challenges of justifying a more than minimal state, see R. Nozick, Anarchy, State, and Utopia (New York : Basic Books, 1974). See also H. T. Engelhardt, Jr., The Foundations of Bioethics 2nd ed. (New York: Oxford University Press, 1996): Chapters 1-4.
21. In this essay, the term moral stranger is used to identify persons who previously do not either (1) possess in common sufficient basic premises and rules of evidence to solve their controversies through sound rational argument, or (2) acknowledge a person or institution in authority to resolve their disputes. For a further analysis of this use of moral stranger, see Engelhardt, supra note 17, at 6-9 and 69-84.
22. Hegel correctly understands that persons exist in the world as embodied beings. First and foremost, they own themselves, their conceptual innovations, and those objects that they transform by bringing them within their power. In the face of disputes with regard to what should count as morally defensible holdings in property, persons must be presumed to be rightful owners of what they possess under the law until proven otherwise. After all, possession is indeed something like 9/10ths of the law. Second, one must note that whatever difficulties beset private ownership also plague claims of corporate and state ownership. For a further discussion of some of these issues, see id., at 154-162. See also G. W. F. Hegel, Philosophy of Right, § 39-71. As Hegel correctly stresses, property is the embodiment of personality. See § 51.
23. What is advanced here is not intended to provide a comprehensive, historical presentation of American constitutional history. The claim is much more modest - namely, to place the phenomenon of the American Constitution within the recognition of the moral limits of secular, political authority.
24. The American Revolution and the writing of the American Constitution occurred prior to the French Revolution. However, the horrors of the French Revolution had a considerable impact on the framing of early American sentiments. For an account of the French Revolution's bloody actions, see M. Davies, For Altar and Throne: The Rising in the Vendée (St Paul, MN : Remnant Press, 1998 A. Latreille, L'Eglise catholique et la révolution français 2 vols. (Paris: Hachette, 1948); A. Mathiez, Les Origines des Cultes Révolutionnaires (Geneva: Slatkine, 1904/1977); R. Secher, A French Genocide: The Vendée (Notre Dame, IN: University of Notre Dame Press2003); and M. Vovelle, The Revolution Against the Church, trans. A. José (Columbus: Ohio State University Press, 1988/1991).
25. H. T. Engelhardt Giving, Selling, and Having Taken: Conflicting Views of Organ Transfer Indiana Health Law Review 1 (2004 31 49.