We need better ethical arguments when the stakes are so high

By Dr Dan Fleming
Group Manager, Ethics and Formation
St Vincent’s Health Australia

In his brilliant interview with Jerry Seinfeld in 2007, Andrew Denton asked if there was anything Seinfeld considered ‘bad taste’ in comedy. He answered no, and then said:

“I have my own style that I like to work in, which is clean. I like, I don’t like to use any sexual situations or dirty words. It’s just, it just keeps me writing better jokes. You have to write a better joke to do well if you don’t use any of those things”.¹

In that same interview, Seinfeld remarked on the excellence of Denton’s own research and preparation. For me, the interview was the highlight of the Enough Rope series.

We might use Seinfeld’s comment to help us think about debates in ethics, such as last year’s debates in Victoria and NSW over physician-assisted suicide and euthanasia (PAS-E). Given the high stakes involved—care for people who are suffering at the end of their lives and the possibilities of legalising suicide and euthanasia—it is reasonable to expect ‘better’ ethical debate from those who are for and against the legislation.

Unfortunately, for the most part, that’s not what we saw, and that was true on both sides. The ethical equivalents of ‘dirty jokes’ were rife in the arguments that held our attention in the public square. These threaten to endure this year as the enactment of the legislation draws near in Victoria, gets debated in Western Australia, and no doubt reignites across the country.

Philosophers have long reflected on what constitutes better or worse ethical arguments, and have given names to those strategies which count as the ethical equivalents of ‘dirty jokes’. These are strategies that seem to resolve ethical disagreements in a quick and easy way, but do not have the substance of better arguments. Like a dirty joke, they do not take much thought or creativity, and their impact is immediate but short-lived. They lack the excellence of other contributions, hence the analogy to Seinfeld’s comment above.

One such strategy in ethics—which we witnessed frequently in last year’s debates—is an ad hominem argument. This translates from Latin as ‘to the person’. An ad hominem occurs when someone dismisses an argument because of the person, or a characteristic of the person, who is making it. For example: since this idea was put forward by Jack— and we don’t like Jack for whatever reason—we don’t need to take his idea seriously. Another form of this argument would be: since this idea was put forward by Jill—and Jill is a member of this group—we don’t need to take her idea seriously. The latter is particularly effective when Jill’s group is not popular. Most of us have been on the receiving end of ad hominem arguments, and have probably used them from time to time as well.

The ad hominem technique was frequently used in the Victorian debate (and will be used again and again in other contexts) to dismiss the view of any who speak on the issue and have an association with the Catholic Church—whether as an employee of a Catholic hospital or aged care facility, as an academic in a Catholic university, or from a leadership position in the Church. The script follows a familiar pattern: Jill, a clinician at a Catholic hospital, speaks against PAS-E in an online op-ed. The comment section below is filled with responses which follow a formula such as: “of course Jill would say that, she works at a Catholic hospital, and Catholics are always …”.

Two things are effective in this use of the ad hominem ‘dirty joke’.

First, the credibility of the Catholic Church in speaking on any ethical issue is at rock bottom at the moment, and it is easy to understand why. Among other controversies, the recent Royal Commission threw light on the scandalous abuse of children by clergy and others in the Church, and the consistent—and unbelievable—failures of leaders and communities in dealing appropriately with this. To cast a person’s views as Catholic in this context is to immediately discount their value.

Second is the assumption built into the ad hominem that only Catholics—or people with a religious worldview— oppose this legislation. This is untrue. Consider that during the debate in Victoria, the Australian Medical Association sent a communication to its members which acknowledged the sharp divisions in its membership on this issue. Are all doctors who oppose the legislation doing so on the basis of Catholic beliefs? Given the recent census results, it is hard to imagine as much.²

Now, of course it must be noted that these ethical ‘dirty jokes’ are used on both sides of the debate. It is unfortunate when they are, and lazy also, because it distracts us from grappling with the deeper issues at play. It allows us to get away with cheap ethics—and we need something better than cheap ethics when the stakes are so high.

So what does it look like when we have to work harder to create a better argument—to paraphrase Seinfeld—in the context of this issue? In other words, what does it look like when we throw that ad hominem strategy out?

One of the first things we notice is that there are a number of strong philosophical reasons for opposing PAS-E. Broadly speaking, they fall into the three most important ethical theories in our current context—all of which can stand independently of religious convictions. These are deontology, consequentialism, and virtue ethics. It is worthwhile taking a look at how each of these three approaches might consider the issue of PAS-E.

Deontology holds that in the domain of ethical responsibility we are bound by certain duties that we must never compromise. There are no ‘ifs’ or ‘buts’ in this approach. Such duties can be discovered independently of religious beliefs if we put our rationality to work in thinking about them. This is an unfashionable position today, but when we pay close attention we discover plenty of such duties that are widely held. These include: we should never abuse others, we should never drink drive, we should never steal, and so on. One of the strongest duties is this: we should never directly and intentionally kill an innocent person, nor assist a person to commit suicide. Someone who holds to this ethical framework could not agree with PAS-E.

Consequentialism is less concerned with such ethical duties and turns instead to what the consequences of a given action will be. One of its most important contributions to ethics has been its insistence that in all of our actions, we seek the greatest good for the greatest number—and any means can be justified in seeking this end. While not inherently opposed to PAS-E, a consequentialist position would need to look carefully at, for example, the potential risks that these practices would have (including on those who are vulnerable), and on cost-effectiveness for a stretched healthcare system.³ If the legislation does not sincerely seek the greatest good for the greatest number, then it should be opposed on the consequentialist view. Having said this, it is important to note that many proponents of the legislation use a form of consequentialism, which argues that the reduction of suffering represents the greatest good, and hence we can employ the means of PAS-E to achieve it.

Virtue ethics takes us into different territory when compared to deontology and consequentialism. The first question of virtue ethics is: what does an excellent human life look like? Or, what does it mean to flourish as a human person? It then asks what human characteristics make this possible. The most famous virtue ethicist—Aristotle of ancient Greece— claimed that we needed the virtues of justice, practical wisdom, moderation and courage to cultivate an excellent life. On the other hand, cowardice and gluttony undermine it. The point is that by establishing the goal of our activities, we can understand what dispositions allow us to reach it, as well as those that undermine it. The former are worthy of moral praise and cultivation, the latter are to be avoided.

This approach can be deployed when it comes to disciplines of practice, such as medicine. Here we must first establish the goal of the discipline (in the case of medicine: to promote excellence in healing), and then we can look to that which supports this goal (for example, a high degree of skill in diagnosis) and also that which undermines it (for example, poor capacities for diagnosis). Obviously, we would want to cultivate the former and discourage the latter. Taking this outlook, one needs to ask whether PAS-E as a practice within medicine supports or undermines its essential goal. Are these practices which are integrally opposed to the goals of medicine? Or can they be incorporated in some way?

… as we enter into this debate we can do so by constructing strong arguments that genuinely respond to the seriousness of the issues at play and appeal to people beyond the Catholic tradition.

Given the high stakes involved— care for people who are suffering at the end of their lives and the possibilities of legalising suicide and euthanasia—it is reasonable to expect ‘better’ ethical debate from those who are for and against the legislation.

The Catholic position on PAS-E shares aspects of each of these approaches. While it rests on religious convictions, one does not need to accept those convictions to recognise human dignity and enter into reasonable debate about what does and doesn’t constitute an appropriate response to a person as they enter the final stages of their life. This point undermines the ad hominem strategy, but it also illustrates that as we enter into this debate we can do so by constructing strong arguments that genuinely respond to the seriousness of the issues at play and appeal to people beyond the Catholic tradition. We can—like Seinfeld does in his comedy—contribute with better arguments. And surely, when the stakes are so high, we have a responsibility to do so.

Footnotes
1 Seinfeld, Jerry. Interview with Andrew Denton. Enough Rope, Season 6. ABC, 2007. Available by Clicking Here.
2 D Bouma, Gary, ‘Census 2016 shows Australia’s changing religious profile, with more ‘nones’ than Catholics’, available at:https://theconversation.com/census-2016-showsaustralias-changing-religious-profile-with-more-nones-thancatholics-79837, accessed 26 February 2018.
3 I explored such a position as it relates to our current economic context last year in an article on ABC Religion and Ethics Online, http://www.abc.net.au/religion/articles/2017/06/15/4685997.htm

From pages 20 and 24 of Issue 13: ‘God, Science, Church’ of  The Record Magazine