CONTRACTARIANISM AND BIOETHICS

The idea of the social contract has been a central feature of Western moral and political thought since the seventeenth century. Theories that follow that tradition claim that the legitimate source of moral or political authority is mutual agreement. Contractarianism had widespread influence through the writings of Thomas Hobbes, Jean-Jacques Rousseau (1973 [1762]), Immanuel Kant (1965 [1797]), and John Locke (1960 [1706]) and has had a recent revival in the work of John Rawls (1971, 1993), David Gauthier (1986), and Thomas Scanlon (1998). Contemporary contractarians continue to drive discussions about topics such as the nature of democratic principles, the distribution of scarce resources in healthcare, the provision of public goods and services, the current generation's duties to future generations, and the current generation's obligation to preserve and protect the environment.

The Tenets of Contractarianism

Contractarianism includes a diverse family of theories that share a basic understanding about the nature of normative justification: When faced with questions such as the following—What is just? What is right? What should I do?—contractarianism seeks an answer rooted in agreement. The motivating force behind the contract approach is the idea that consent confers legitimacy on particular moral decisions, the policies and laws of a particular society, and the basic principles of a just society.

The metaphor of the social contract represents people's willingness to enter into a society or a system of moral rules for mutual benefit, agreeing to bind themselves to the rules that make cooperative life possible. The social contract sometimes is characterized as a general agreement to keep more specific agreements. This idea is rooted in a form of skepticism about competing sources of normative authority, such as theories about human nature, theories of natural law, perfectionist theories, virtue theory, and other theories that attempt to offer more objective or foundational support for the content of moral principles and theories of justice.

Within the family of theories contractarians tend to be divided over questions about how to characterize agreement and the mechanisms of choice. For example, does moral justification stem from actual historical agreement, or is it more appropriate to reason hypothetically about what people would have reason to agree to in certain ideal conditions? The former approach to moral questions traces moral justification to actual agreements. The latter approach reflects on the hypothetical agreements of imagined agents in idealized circumstances. Both variants posit a starting point or initial position from which people have historically or hypothetically emerged to contract with one another for the sake of mutual benefit. Both mechanisms make it possible to evaluate current conditions in society or current moral practices by reference to a more ideal historical or hypothetical situation. For the contractarian, social and political institutions are human conventions that are open to criticism, rejection, revision, and ultimately acceptance.

Both the actual and the hypothetical contractarian approaches to moral and political theory have played a central role in bioethics. People who are interested in carrying on the contractarian tradition within bioethics must contend with some of the problems inherited by the more general theory as it has been developed in moral and political philosophy. What follows is an overview of contractarian approaches to the special problems of bioethics, including consideration of the strengths and weaknesses of those approaches.

Contractarian Approaches to Bioethics

If morality and politics are understood as joint enterprises that are entered into for mutual advantage, as contractarians understand them, one can begin to see a natural affinity between bioethics and contract theory. The patient-physician relationship, the practice of informed consent, the use of advance directives, the conducting of medical and scientific research, the obligation to take care of the elderly, systems of medical insurance and national healthcare, and many other aspects of health policy are central issues in bioethical debates. In an important way contractarianism attempts to make health policy, scientific institutions, and individual practitioners answerable to the individuals they serve.

Howard Brody (1989) has drawn a parallel between the rise of contractarianism in political philosophy and the rise of contractarianism in medical ethics. Just as Enlightenment philosophers challenged the idea of the divine right of kings to rule over subjects without consent, bioethicists from the early 1960s through the 1970s challenged the idea of paternalism in medicine. If patients are viewed in the way Enlightenment philosophers viewed the citizens of a state— as being autonomous and worthy of respect—treating patients paternalistically—considering them as being ignorant and inherently dependent on physicians—violates patients' autonomy.

THE PATIENT-PHYSICIAN RELATIONSHIP. Robert Veatch(1991), one of the earliest proponents of contract theory in bioethics, posed the following question: What type of patient-physician relationship would the parties to that relationship rationally consent to, assuming they were placed in a starting position of equal power? The resulting contractual model allows for important differences in knowledge and decision-making capacities between a patient and a physician but requires that equal respect be given to the interests and goals of both parties. The model grants physicians control over technical decisions and grants patients control over the aspects of a decision that involve personal values. If a patient in renal failure is faced with the options of ongoing renal dialysis and kidney transplant surgery, it is the physician's responsibility to present the risks and benefits of those options and explain the relevant medical information. It is up to the patient to decide what degree of risk she or he is willing to accept with either option and weigh the options in light of his or her own values.

The contractual model of medical ethics views the patient-physician relationship as one of respectful communication and negotiation. The specific list of rights and duties is arrived at through the hypothetical contract mechanism. If physicians and patients were negotiating the terms of the patient-physician contract, what terms would all the interested parties include in the contract? Certain rights, such as the patient's right of self-determination, and certain corresponding duties, such as the physician's duty to disclose all the information needed by the patient to make a fully informed choice, would make up the content of the contractual model. Consistent with this model is the idea that a patient may willingly delegate his or her choices to a physician.

Norman Daniels (1981), following the political philosopher John Rawls (1971), relies on a Rawlsian model of the hypothetical social contract to construct a specific theory of healthcare needs. In the classic Rawlsian model it is imagined that a number of impartial observers are charged with the task of choosing basic principles of justice that will shape the constitution and laws of the society into which the observers will be born. These hypothetical agents do not know what place they will occupy within the society or even the generation to which they will belong. The thought is that the resulting principles of justice will be fairly chosen, unlike principles chosen by actual, biased, and self-interested parties in a real society. Rawls (1971) argues that rational agents in the original position will want to increase the amount of primary social goods available to them, consistent with an equal share of liberty. He assumes that such agents would be risk-aversive in a certain sense: They would not be willing to risk losing a certain basic amount of primary social goods in exchange for the possibility of seeking greater amounts of those primary goods.

HEALTHCARE NEEDS. Expanding on Rawls's general theory of justice, Daniels (1988) places healthcare goods under the principle of fair equality of opportunity, including healthcare needs among the primary needs of a society's members. One of the most interesting results of the theory as it is applied to health policy is the way in which Daniels attempts to solve the problem of age-group bias. In attempting to determine a just allocation of scarce health resources most real agents are deeply biased in favor of the scheme that will maximize the resources of their age group, heavily discounting the present over the future. If, however, people place themselves behind a Rawlsian veil of ignorance and imagine that they are blind to their particular generation, they will arrive at fair principles of healthcare distribution. The hope is that the resulting principles of resource allocation will ensure the well-being of all persons as they pass through various health institutions through the course of their lives. A healthcare system designed in accordance with the principle of equal opportunity will attempt to balance, for example, the need for services in critical care, preventive care, and long-term care. If the institutions at each stage are designed prudently, the hope is that all generations will benefit from the overall health system.

THE REQUIREMENT FOR PERMISSION. Against the Rawlsian contractrarian approach to bioethics, Tristram Engelhardt(1996) has offered a theory of bioethics rooted in the Kantian philosophical tradition, which relies centrally on the requirement of permission between persons. Engelhardt's approach to the specific problems of bioethics stems from deep skepticism about the possibility of achieving consensus about the substantive questions in morality and politics. He argues that all competing approaches to bioethics rely in some way on prior substantive assumptions about what is good or right. Such assumptions, he claims, cannot reasonably be made in a pluralistic world filled with competing ideas of justice and fairness, understandings of rationality, and visions of the good life.

Engelhardt offers an alternative model of bioethics that rests on a very minimal assumption salvaged from the Enlightenment project and the contractarian tradition. The basic assumption is that the only justifiable ground for dealing with moral controversies in a world of moral diversity is to appeal to actual agreement as the source of moral authority; any other appeal is illegitimate because it involves acceptance through force or coercion. To avoid imposing substantive moral views on those who are strangers to a group of people's views, Engelhardt urges people to appeal to consent as the mark of legitimate moral authority.

Rather than design a healthcare system that is based on the hypothetical agreement of hypothetical agents who must be assumed to have certain substantive views about what is just or good, Enghelhardt proposes that decisions about the allocation of health-resources be made directly by real parties to real agreements. In this model market mechanisms generally will guide decisions about the allocation of health resources on the national level, with the assumption that those who participate in the market implicitly if not explicitly consent to the practice and its outcomes.

Engelhardt leaves open the possibility that smaller groups and communities will agree to set up health institutions, such as private hospitals and long-term-care facilities, that are governed by more substantive goals of justice or visions of the good life. A Catholic hospital, for example, might have an internal policy against performing abortions and also might have a policy of offering a certain amount of charity care to indigent patients. In this model the relationship between the patient and the physician is characterized fundamentally in terms of permission and consent. Agreements between patients and their caregivers, such as those struck through the process of filling out advance directives, play a central role in ensuring that the minimal moral requirement of permission is secured. Similar to Veatch's account, the relationship between patient and physician is, in Engelhardt's model, understood as one of respectful negotiation between the different parties to the decisionmaking process.

Critiques of Contractarian Approaches to Bioethics

Several important criticisms have been lodged against contractarian approaches to bioethics. Those criticisms have a common theme: The moral relationships and contexts that characterize the healthcare and research settings are too complex and subtle to be understood solely in terms of a contract. The general concern is that contract theory is too minimal in its approach to the rich and complicated moral terrain of bioethics.

Critics have objected that the physician-patient relationship rarely begins with an agreement or involves explicit negotiating. More often the beginning of the relationship is characterized by surprise, stress, a lack of time, fear, hope, an imbalance of knowledge, and a great need for trust. It is not typically a calm encounter between equal partners in a negotiation. This objection speaks primarily against the actual-contract model offered by Engelhardt because the hypothetical model is attempting to ask what principles should guide this stressful, complex encounter, and these principles are chosen in a calmer hour by philosophers, bioethicists, and health-policy makers.

This objection can be extended to the hypothetical model, however, by pointing out the disparity between the ideal situation in which principles of bioethics are hypothetically chosen and the real world. If the disparity is significant, it is not clear what binding force hypothetically chosen principles should have in actual practice. A great deal depends on the content of the hypothetical situation of choice and the substantive principles of rationality that will guide choice. If too much is packed into the descriptions of the initial position, the resulting choice will be biased and arbitrary, exactly the pitfall the contract tradition was designed to avoid. If one provides no structure and content to the nature of rationality guiding choosers in the initial position, the resulting principles will be empty and meaningless. This is a serious problem for contract theory in general that has been inherited by those hoping to apply that model to bioethics.

The unique relationship between patient and physician, others have argued, is not best characterized by the economic-political metaphor of the contract because the contract model relies too narrowly on rights and permission and overlooks other important goals and duties, such as compassion and trust. From the perspective of virtue theory, for example, the contractarian model of bioethics fails to address important issues about the character of physicians and other healthcare workers. What does it mean to be a good physician or a good nurse? Certainly there is more to being a good health professional or a good researcher than making sure that one negotiates the permission of one's patients and research subjects thoroughly. William May(1996), for example, suggests that the religious idea of a covenant compared with the secular metaphor of the contract is better able to capture the rich sense of duty and obligation inherent in the physician-patient relationship.

What drives this objection is a deeper concern that the minimal moral requirements of the contract model will not encourage a lasting and dedicated relationship with patients but instead will encourage physicians to ask, "Has the consent form been signed?" Although beneficence and compassion are clearly compatible with contractarian requirements in bioethics, there is a sense in which such moral goals remain "optional" because they are not the central focus of the theory.

Along a similar line communitarians have argued that the contract model is too individualistic in its focus. Moral issues in bioethics, even in the narrower domain of medical ethics, involve complicated social systems, shared and unspoken understandings, deep-seated cultural beliefs, and common expectations. Explicit contracts account for only a small part of the moral dealings in this context. Especially in areas such as public health, many decisions are best made in terms of what is best for the community or what maximizes the overall health of the community over and above the desires and preferences of individuals. Sometimes the only way to stem the immediate threat of an infectious disease such as tuberculosis may require practices, such as reporting and quarantine, that infringe on principles of individual consent and permission.

A final objection to the contractarian model, especially as it is applied to bioethics, is that it is centrally a theory about persons, whereas bioethics involves important ethical issues about nonpersons or semipersons, including animals, embryos, fetuses, children, adults with serious mental deficits, brain-dead patients, and the dead. Some of the most interesting and challenging issues in bioethics involve subjects one does not easily imagine sitting at the negotiating table. Because the contract model focuses on what rational, conscious agents would choose, there is concern that the focus on rational agreement excludes the moral concerns of more vulnerable members of society.

A morality based on mutuality and rational consent certainly can deliver principles for addressing the needs of children, the mentally ill, and animals, but only insofar as the agents to the agreement deem those more vulnerable subjects worthy of consideration. Because moral duties and obligations emerge from mutual agreement, any duties that people have toward research animals, for example, could result only from the agreement of the human parties involved. The obligation is indirect: If animals and other vulnerable subjects are thought by human parties to an agreement to be worthy of care and respectful treatment, people will have indirect duties toward those animals. For some critics indirect consideration is too unstable a moral requirement, especially for subjects that cannot be parties to the agreement and are particularly susceptible to being overlooked in the moral calculus of rational consent.

Conclusion

Despite these objections the metaphor of the contract remains a powerful heuristic tool for reflecting on the existing conventions and practices of medicine and science. The lasting insight of contract theory is that the willingness of individuals, rather than force or rigid appeals to human nature, is a powerful legitimating force in morality and politics in a world where individuals disagree deeply about foundational moral issues. Thus, contract theory remains a particularly useful insight and starting point in the diverse field of contemporary bioethics.

maureen kelley

SEE ALSO: Casuistry; Communitarianism and Bioethics; Consensus, Role of; Ethics; Freedom and Coercion; Obligation and Supererogation; Pragmatism; Principalism; Rights; Utilitarianism

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