Philosophers of law (at least those of a positivist bent) are most often
preoccupied with questions concerning the validity conditions for statements
that are purported to be lawful. They want to know, for example, if the
validity of statutes is relative to their moral goodness, or to their source,
or to their place in custom or conventional practice. These may seem rather
dry topics for contemplation, but they invite reflection on some of the
most provoking and challenging philosophical problems. Moreover, without
some effort to wrestle with these and related issues one is without the
resources to answer the so-called hard questions that engage legal theorists
and laymen alike. Case law, after all, is rarely examined as evidence of
the mechanical application of general rules to particular circumstances.
Instead it is employed to illustrate the challenges associated with the
interpretation or extension of legal standards. It can be hard work indeed
to uncover the scope of even well-entrenched principles. For example, even
the right of a patient to refuse medical treatment, something generally
described as inviolate, may be infringed if there is doubt about his competence
or the durability of his expressed desires. As the late Herbert Hart so
famously stated, core cases inevitably give rise to exceptions (or generate
a so-called penumbra of uncertainty).

Biomedical ethics, unsurprisingly, has its own set of uncertainties
with which it must struggle. Not only are our bodies subject to an astonishing
array of frailties, and our technological capacities often beyond our ability
to appreciate their significance, but – and perhaps this is most troubling
of all – our communities are far from arriving at a shared and stable system
of values. Most ethicists are ready to intone the principles which have
become their stock-in-trade, but there remains ample room for dispute concerning
their ranking in particular circumstances. For better or worse, one cannot
fix a value for individual principles prior to their application in specific
cases. Autonomy sometimes has to yield to beneficence, whilst in only slightly
different circumstances the converse may hold.

The relentless struggle to arrive at decisions we can rest easy with,
or at least justify as reasonably defensible, is characteristic of these
two often intersecting disciplines. It is not odd to suppose, therefore,
that an ethicist might have wisdom to share with his judicial compatriot
and vice versa. Still, few have made the connection in an explicit
way, and the appearance of a text with the title The Ethics of Suffering:
Modern law, philosophy and medicine, is more than a little exciting
for those of us who straddle these disciplines. Furthermore, its inclusion
in a series which promises to be relevant to “researchers, students, and
practitioners worldwide” makes it appear too good to be true.

Unfortunately, Marinos Diamantides’ attractive little book is precisely
that. It is a volume of greatest interest to a specialised audience well
versed in the philosophy of Emmanuel Lévinas. Although rather painstaking
effort is devoted to an explication of the technical language that is an
inextricable part of that system, I fear that many readers will be unwilling
to struggle with the nuances essential for an adequate appreciation of
the material. Biomedical ethicists and legal theorists certainly understand
that each discipline (and indeed sub-discipline) relies on terms of art
that can frustrate outsiders, but I’d wager that few would exhibit the
patience necessary to assimilate the language of Being, authenticity,
absurdity, passivity, and so on.

The book is at its most compelling, and vexing, when Diamantides brings
Lévinas’s concepts to bear on concrete cases such as Yetter
and Northern. Here his treatment of the doctrine of informed consent
is instructive because it problematises the liberal interest in the incompetent
patient’s ability to frame rationally defensible arguments in his effort
to refuse treatment. Those trained in the Analytic tradition of Anglo-American
jurisprudence undoubtedly will share Diamantides’ belief that our well-worn
principles become terribly strained in the effort to extend justice to
the mentally incompetent (given that these standards are designed with
an idealised rational, autonomous, actor in mind). They may even support
his contention that compassion is sometimes as needful as justice. What
is bound to excite some ire is the further claim that these are terms of
identity – that judges ought to jettison the disinterested stance which
is the hallmark of their profession and open themselves to the absurdity
of suffering. It is perhaps best to let Diamantides speak for himself on
this point:

In so far as the recognition of rights for the mentally vulnerable is
linked to ‘truth’, either about their status or about their ability ‘to
understand’, there is a deficit of judicial responsibility. Without personal
responsibility for the unilateral act by which the mental patient is faced
as other, so that he or she can be abstracted as an absolute rights-holder,
the principles of patient autonomy and self-determination . . . lose all
sense and appear absurd and arbitrary. However, the judges’ utterly individuated,
non-shareable personal responsibility in their proximity to patients can
reverse this situation. Through assuming responsibility as their only authorisation,
a judge can uphold the incompetent patient’s autonomy (or, more precisely,
can impute autonomy to the patient) and shift the accusation of absurdity
from the principles of law to the intrinsic absurdity of the patient’s
situation. After all, human suffering is, and must be responded to obsessively
because it is totally absurd (58).

The difficulty with such a position, at least for those of us on the
Analytic side of divide which cuts through the philosophical discipline,
is that it makes universalisable recommendations impossible. This may be
perceived as an advance, particularly if one reflects on the lack of significance
that the individual sufferer generally has in the impersonal institutional
contexts of law and medicine, however, it leaves the judge or ethicist
in an unaccustomed and indefensible position. His function is no longer
to judge, but to empathise. And if his human sympathies have atrophied
as a consequence of his role we may have something to fear.

For good or ill, I believe that The Ethics of Suffering will
engage few on the applied end of the medical or legal professions. His
carefully written text, however, may eventually find an eager audience
in graduate philosophy classes. It is a shame that such challenging material
is advertised much in the manner of an ordinary casebook. It may reach
a rather large but unappreciative public, and elude those who might benefit
from its insights.

© 2001Ann Iverson

 

Ann Iverson is a doctoral
candidate in the philosophy programmeat McMaster University in Hamilton,
Ontario. Although she specialises in legal theory, she also works in applied
ethics and is currently serving as the clinical ethics intern for the Hamilton
Health Sciences Corporation.

Categories: Philosophical

Tags: Mental Health Policy and Advocacy