by J.S. Blumenthal-Barby, Ph.D.

Various ethical theories underlie approaches to resolving bioethical dilemmas. Consequentialist theories hold that the moral evaluation of an action is based solely upon the goodness or badness of its consequences for all of the relevant parties. Deontological theories, on the other hand, hold that the moral evaluation of an action is based at least in part upon its intrinsic nature and its resulting conformity to moral rules. Popular deontological theories utilized in bioethics include Kantianism, Natural Rights theory, or theories about Special Obligations (e.g., physician fiduciary duties). One relatively neglected deontological theory that seems to underlie a significant amount of recent work in bioethics is Contractualism.

Contractualism is the view that actions are morally right if they are permitted by the rules that free, equal, and rational people would agree to live by. Contractualism takes the positions or policies adopted by various stakeholders coming together as constitutive of the political or moral law. I think it is fair to say that a major movement in bioethics, especially among the more empirically inclined bioethicists, is to gather various stakeholders together to reflect on pressing bioethical issues. Public opinion polls on ethical and policy issues, “Delphi processes” to establish recommendations or guidelines, qualitative research to elucidate the moral concerns and views of various parties, public town meetings, and the move to include various stakeholders (especially patients) in research (including bioethical research) funded by the Patient Centered Outcomes Research Institute (PCORI) all serve as examples. Convening of groups of people to agree on the identification of and sometimes resolution of ethical and policy issues is becoming an increasingly common methodological approach in bioethics. It would behoove us to tie this methodological approach to its theoretical roots in ethical theory so that we can be reflective about its relative merits and demerits.

Its merits rely on its democratic, inclusive, and pluralistic nature—features that many find appealing in addressing ethical issues faced by contemporary society. Another advantage is that it provides an answer to the “is ought” objection to empirical bioethics. How does figuring out what people think descriptively determine what ought to be? Under a contractualist approach one could argue that it is constitutive by virtue of the ethical theory itself. But there are long-standing criticisms of a contractualist approach to morality that should be taken into consideration. First, there is the question of the “set up” for the instance of agreement. Who should be included (e.g., a random selection of people, “reasonable” people, those who are poor or disabled or otherwise vulnerable or least well-off, etc.)? Inclusion of persons who might be affected most by the policy or position is crucial, as is those who will act “reasonably” in the sense of being willing to make some concessions but being strong enough to uphold others so as to avoid over-sacrificing. Also crucial is that the circumstances for this instance of agreement must be ones that do not involve coercion or fraud. A second concern with the contractualist approach is similar to the Euthyphro Dilemma in philosophy of religion—do the gods love and command the good because it is good, or is the good good just because the gods love and command it? If the latter, the worry is that they could command anything (even bad) and it would become good just by the fact that they commanded it. There is a similar sort of worry with contractualism. And further worrisome, one might wonder what role the “contracting” actually plays. As Geoffrey Sayre-McCord puts it, on this objection “…the contractarian framework will stand as mere window dressing, a decorative over-lay that might have evocative advantages but that contributes not at all to the substance of a theory or the justification of the principles it endorses.” Meaning, the driving work is being done by some other moral theory (e.g., consequentialism) that the “reasonable” stakeholders or contractors are applying to arrive at positions or policies. What moral work is the fact of agreement doing then?

This is not to say that contractualism is not a potential viable approach to ethical dilemmas. This is just to say that 1) it seems that bioethics is increasingly adopting a contractualist ethical theory without explicitly acknowledging or being aware of it, and 2) contractualism has both practical and normative challenges to be met.

See “Contemporary Contractarian Moral Theory” by Geoffrey Sayre-McCord in The Blackwell Guide to Ethical Theory edited by Hugh LaFollette, 1999. http://philosophy.unc.edu/files/2014/07/Contractarianism.pdf

See also: Cudd, Ann, “Contractarianism”, The Stanford Encyclopedia of Philosophy (Winter 2013 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/win2013/entries/contractarianism