Rethinking Medical Ethics E-Book

Jean-Pierre Clero

• Herausgeber: ibidem
• Kategorie: Fachliteratur
• Serie: Studies in Medical Philosophy
• Sprache: Englisch

Seitenzahl: 395

Veröffentlichungsjahr: 2018

Beschreibung

In this unique study, Jean-Pierre Clero examines medical ethics from a philosophical perspective. Based on the thoughts of great philosophers, he develops a theory of medical ethics that focuses on the values of intimacy.

Leseprobe

ibidem Press, Stuttgart

Table of Contents

Foreword

Introduction Knowing how to say Goodbye to outdated Notions

I. Person and privacy

II. Nature, law, and rule

III. Bayesianism and game theory

IV. Categorical imperative and hypothetical imperatives in ethics of care

V. Game theory, economic values, and ethical values in medicine

VI. Conclusions

VII. Presentation of the chapters

Chapter I Critique of Autonomy

I. The contradictions of the notion of autonomy in its classical use

II. The game of masks of creation and consent

III. Autonomy still contains contradictions in multiple senses

IV. The particular distortion between the ethical notion of autonomy among caregivers and the homonymous notion of philosophers

V. The notion of autonomy divides the individual against himself

VI. Utilitarianism engulfs itself in the distortions of the notion of autonomy

VII. However, that a notion is contradictory—as is the case of autonomy—is not necessarily an objection against it

VIII. Bentham between Pascal and Lacan

IX. Conclusions

Chapter II Is Dignity an Ethical Value beyond all Suspicion?

I. I start by looking at some of the many contradictions that cut across it, leaving its major axis.

II. I deepen the consequences of previous divisions and consider the opportunities they offer to hypocrisy and cynicism. Or, the game of human life and its conditions.

III. What does dignity say?

IV. Conclusion

Chapter III The Need for Utilitarianism in Ethics

I. A loyal utilitarianism

II. The sovereignty of the state as regards religions

III. Philosophy of care and autonomy. The more or less implicit criticism that this philosophy contains the theory of principles as envisaged by Beauchamp and Childress

IV. The philosophy of ethics in Moral Thinking

V. Intuition and criticism

VI. The logical treatment of principles

VII. The fundamental question of examples

VIII. The requirements for the calculation of preferences

IX. The characteristics of moral judgment

X. Conclusions

Chapter IV Is the Value of Intimacy incompatible with Utilitarianism?

I. One can attempt the determination of intimacy by a series of negations

II. Jankélévitch’s position

III. The dialectic of intimacy

IV. The articulation of principles

V. Conclusions

Chapter V Conclusion

Bibliography

Studies in Medical Philosophy

Copyright

“In my opinion ethics as a branch of philosophy is still to be created. There are writers on the subject from whom valuable thoughts may be gathered, & others (particularly Bentham) who have thrown some though not sufficient light on the mode of systematizing it. But on the whole every one’s ideas of morals must result from the action of his own intellect, upon the materials supplied by life, & by the writers in all languages who have understood life best. The part of psychology which corresponds to morals is one of the most imperfect parts of that most imperfect science. Its most important portion, the laws of the formation of character, have never yet been treated otherwise than superficially.” (John Stuart Mill, letter to William Stigant, August 1, 1864, Collected Works, vol. XIV, edited by F. E. Mineka & D. N. Lindley, London, Routledge; Toronto, Toronto University Press, 1972, 235).

Foreword

“it seemed to me that the most useful thing was to rule myself in accordance with those with whom I had to live, and that, in order to know what their opinions truly were, I ought to pay attention to what they did rather than to what they said,[…] given that the action of thought by which one believes something is different from that by which one knows that one believes it, the one often occurs without the other.”

René Descartes, Discourse on Method, part III, second paragraph.1

 This book follows several works that I have published on ethics and more specifically on the ethics of care. The first book was published under the title Calcul moral by Armand Colin, coll. U, in Paris, in 2011 and the most recent is entitled Sept leçons complémentaires du Calcul moral, published online in the form of an e-book by European University Editions, in July 2016. Between these two publications, several studies have appeared in journals of the ethics of medicine [“Quelques propos en marge et dans les interstices de vingt-six entretiens sur la loi Leonetti. Les discours brisés”, in Revue d’études benthamiennes, September 2011, http://etudes-benthamiennes.revues.org/464; the article “Utilitarisme” in Dictionnaire de la police et de la justice, edited by S. Tzitzis, G. Bernard, D. Jolivet, Paris: PUF, October 2011; “Réflexions critiques sur l’usage de la notion de personne en éthique médicale”, in Deux siècles d’utilitarisme, edited by M. Bozzo-Rey and É. Dardenne, Rennes: Presses Universitaires de Rennes, 2011, 211–31; “La personne vulnérable”, in Altérité et vulnérabilités, edited by C. Hervé and S. Tzitzis, Les Études Hospitalières, Bordeaux, 2014; “La décision médicale : la fin des décideurs ?”, in Revue française d’éthique appliquée, n° 1, February 2015, 17–26; Les subversions contemporaines de la décision ; délibération, technique, valeurs, Paris: Espace Éthique Régional Ile-de-France, Université Paris Sud; “La décision médicale : la fin des décideurs ?”, in Revue française d’éthique appliquée, n° 1, érès, Espace éthique Région Ile-de-France, March 2016, p. 22–36, in Les ambivalences contemporaines de la décision ; délibération, technique, valeur; “Personne et altérité dans l’utilitarisme”, in Ethics, Medicine and Public Health, (Paris: Sffem, Elsevier Masson, January-March 2015), 82–90, http://dx.doi.org/10.1016/j.jemep.2014.09.001; “Éthique des soins, athéisme et religion”, Études athées, Athéisme et morale, Brussels: ABA éditions, 2016, 117–145; “Memento mori, ou : Comment l’éthique, qui est une pensée de la vie, peut-elle inclure l’idée de la mort ?”, Ethic, Medecine and Public Health, 2016; “Y a-t-il, chez John Stuart Mill, une spécificité de l’éthique entre les morales et le droit ?”, in Philosophical Enquiries, revue des philosophies anglophones, n° 7, December 2016] and proceedings of symposia on health issues (“Qu’est-ce que soigner ?”; “Le soin est-il une aide ?”; “Qu’est-ce que l’autonomie ?” collected texts in: Le soin, l’aide, care et cure, Rouen, Le Havre: PURH, 2018, in collaboration with Annie Hourcade; a contribution to the discussion about Alzheimer’s disease that appeared in Les Cahiers de l’Espace éthique n° 4, Paris: Région Ile de France, September 2016).

The opportunity to write this book was provided to me by my two Bulgarian friends, Maria Dimitrova and Alexander Gungov, who offered—after a long series of exchanges and collaborations—to publish, in English, a text which would synthesize the previous studies and would also add new material from the preparation of the courses that I've continued to give for more than a decade, in the company of Pierre Czernichow and Annie Hourcade, on the topic of the ethics of care at the University of Rouen, at the University Hospital of this city, in contact with an audience that interweaves the presence of caregivers and philosophers, and sometimes administrative officials and lawyers, and also in more specialized locations like the school of physiotherapists and the school of midwives and nurses in the same city. The many conferences I've attended have allowed me to deepen my investigations. My participation in multiple institutions where ethics is being discussed—at the EREHN (Espace de Réflexion Éthique de Haute-Normandie) which has become the EREN since the union of the two regions of upper and lower Normandy; at the CARE of the psychiatric hospital of Rouvray; at the CHR of Saint Germain en Laye—allowed me to be in contact with people who were dealing directly with patients and whose experience and testimony are absolutely irreplaceable.

All these experiences and participation in discussions with health professionals and philosophers of ethics have allowed me to enrich my ways of thinking about medical ethics, and have also allowed me to see how French caregivers, involved on the front line regarding ethical questions, and researchers in this discipline rejected, at least in their comments, utilitarian conceptions that elsewhere they employed spontaneously to ask certain questions and arrive at solutions—because ethical issues are characterized, in medicine, by the need and the obligation to resolve them, for good or ill. This book intends to show that this rejection is ill-founded and to contribute to the knowledge of a utilitarianism whose doctrine we advocate, not because it provides solutions to all ethical problems, but because it offers indications in certain instances where traditional notions to which we’ve given the benefit of the doubt have become outdated and cumbersome.

The hope for change that we have in this area is related to two elements that are also two events. First, our friend Annie Hourcade, who teaches philosophy at the University of Rouen, founded, at this university, a group of research on counselling and, since then, has had a special interest in everything concerning care, organizing seminars on this topic, publishing books, and multiplying the alliances of members who act on their own behalf or on behalf of their universities, whether French or foreign. The second element which could be described as an event has taken the form of an alliance—one of whose overseers is our friend Thierry Belleguic—with Laval University of Quebec on the topic of vulnerability which, for several years—four at least—will lead us to common research which we hope will not be confined to intellectual speculation, but will result in practices directly useful to those who provide care. At least this is what is written in the statutes of our alliance, which also can be joined by other European partners. The project is in motion, and is open and welcoming to any proposed innovation that might improve it. We are pleased that the present book might be linked to its growth, although it is by no means meant to promote as an ideology of the research project the ideas defended here. Simply, it will be only possible to defend these ideas provided they do not have a ridiculous claim to exclusivity.

If the book is published in English though it seems to apply especially to a French-speaking audience—whether the French public or the Quebecois public—it is to make it clear that, in reality, it is not only confined to those audiences. The educated French-speaking public can read English: the book can therefore be perfectly addressed to it in this language; on the other hand, it was obviously not for us to teach English-speaking people anything regarding Bayesianism and game theory which are elaborated almost entirely in English, but we wanted to testify in English, to English speakers, regarding an approach that owes much to what has been written in France and in French in recent years. We are convinced that the purpose of French ethicists could often be inflected by taking into account a utilitarianism without needless demonization and the possibility of calculation whose need we all feel but whose action seems constantly deferred, as if it involved an ethical fault whose heart were found in calculation.

We thank the editor ibidem of Stuttgart for supporting the project I have just revealed in its complexity, and—I also hope—in its originality and its new energy. I cannot finish this foreword without thanking the University of Rouen for making possible the English version of a work originally written in French, carried out by a brilliant translator, Matthew Gill, who is currently studying at the University of Sofia with Professor Alexander Gungov. Never could I have obtained such a result by myself: let him be warmly thanked for it.

 Finally, I will highlight an act of friendship from Michael Quinn. Simultaneously contacted with my friends, Thierry Belleguic, Professor to the University Laval at Québec, and Peter Niesen, Professor to the University of Hamburg, in Germany, to write one of the endorsements at the end of the present book, Michael completely reread the text, cover to cover, much to my surprise. Many sentences were anew questioned from the double point of view of syntax and semantics. Of course, I alone am responsible for all the mistakes that might have escaped to my attention.

1 René Descartes, Discourse on method and Meditations on first philosophy, trans. Donald A. Cress (Indianapolis: Hackett Publ, 1998), 13–14. (René Descartes, Discours de la Méthode, in : Oeuvres de Descartes, ed. Adam & Tannery, vol. VI, Paris: Vrin, 1982), 23 : “il me semblait que, […] pour savoir quelles étaient véritablement leurs opinions [les opinions de ceux avec lesquels j’aurais à vivre], […] je devais plutôt prendre garde à ce qu’ils pratiquaient qu’à ce qu’ils disaient ; […] car l’action de la pensée par laquelle on croit une chose, étant différente de celle par laquelle on connaît qu’on la croit, elles sont souvent l’une sans l’autre”.)

IntroductionKnowing how to say Goodbye to outdated Notions

Ethics and Game Theory

“Star friendship.[...]That we have to become estranged is the law above us; by the same token we should also become more venerable for each other—and the memory of our former friendship more sacred. There is probably a tremendous but invisible stellar orbit in which our very different ways and goals may be included as small parts of this path; let us rise up to this thought. But our life is too short and our power of vision too small for us to be more than friends in the sense of this sublime possibility.—Let us then believe in our star friendship even if we should be compelled to be earth enemies.”

Friedrich Nietzsche, The Gay Science, book IV, § 279.1

Socrates to Callicles: “Now yours it seems to me, do not give proper attention to this, for all your cleverness, but have failed to observe the great power of geometrical equality amongst both gods and men.”

Plato, Gorgias, 508 a.2

A spectacle continues to amaze and distract us at a time when we have for so long3 been looking for notions, categories, and types of argument which may be appropriate in the ethics of care—whether regarding medicine, pharmacy, physiotherapy, or midwifery—namely the attachment that ethicists, in France more than elsewhere, have to Kantianism in its most questionable aspects. The notion of person resists all the objections which are due to its ambiguity; when trying to be more precise, it is with the help of an autonomy which is hardly better determined in the ethics of care than the person, since it requires the support of many fictions to be applied to the particularities of a certain number of patients about whose cases one cannot think using this “principle”. The criterion of ethicality, which we pretend to identify by the possibility of the passage of the singularity of the maxim of action in its elevation to law, is effected thanks to the notion of nature which, issuing from the physics ofthe 17th century, of Newtonianism essentially, saw itself refuted in the field, just like the notion of law. The notion of categorical imperative, whereby it is claimed to establish real ethicality by distinguishing it from the other imperatives for which value is only technical and exclusively capable of giving form to the relations of ends and means, in analysis is poorly distinguished from hypothetical imperatives and can always be brought back to their form. Finally, when the question of an articulation of ethical requirements along with those of production and trade is posed, considering the price of care, drugs, and who must pay for them, ethics is stopped at the Kantian distinction between people, who have a value and dignity, and things that do not; an opposition which, at the same time, is the problem, and renders impossible, from the outset, any solution, even when it might be urgent.

One sometimes has the impression, facing this accumulation of obstacles, ambiguity, and archaisms, that the notions that cause them and the reasoning to which they give rise were precisely chosen to make any correct position regarding ethical questions impossible and, a fortiori, any solution; and that one thus destines those who are supposed to put ethics into practice to a division at the moment of action. One certainly must act, but knowing from the outset that it is impossible to act well; that the right action is not of this world, which justifies—strangely—doing or allowing the opposite of what one claims to be right. What reinforces and exacerbates this impression is the contempt required of the ethics that pretends to scratch out validity with the stroke of a pen, without any precise reference to a contemporary author that one might have taken the time to read.4

We would like to show here the clear superiority of utilitarianism in issues of medical ethics, provided that the maximization of pleasure, happiness, and preferences is not cut off from the Bayesian methodology of game theory that has grown for six or seven decades and allows us to better face what are insurmountable difficulties for Kantianism. As long as one hasn’t bothered to study it, utilitarianism has the image of a doctrine incapable of a refinement given willingly to other ethics and one denounces, for example, the failure to take into account what is most intimate in humans, preferring to put in the foreground monetary issues—the cost of care, for example—and forsaking all others. However, it is not very difficult to establish that the values of intimacy are certainly better preserved by a demanding utilitarian—like maybe a G. E. Moore, an R. M. Hare, or a John Harsanyi—than by those who, having only the words person and dignity in their mouths, make no place for intimacy while nonetheless believing themselves the best situated to grant it. Paradoxical as this assertion might be, the distance is perhaps lesser between an author that calculates preferences and a defender of the values of the intimacy such as Vladimir Jankélévitch than that between the latter and the advocates of the person in the Kantian sense.

I. Person and privacy

The person is, ethically, the exact equivalent of the transcendental subject on the theoretical level. When I put myself to the task of analyzing a notion, articulating it along with others, and resolving a problem by developing a demonstration, the energy and strength that I deploy may well be “mine”, yet they are nonetheless those that, provided he wants to achieve the same result as me, another will want to deploy following the same paths, or if I'm wrong, seeking the paths I should have followed to obtain the best results. Subjectivity put in play in science, and no doubt also in numerous activities that we call “rational”, can be taken into account by every other subject. The intersubjective or transcendental character is obviously also the qualification of any judgment, of any project that claims to have an ethical value and exceed what is only mine psychologically or as relates to my character. If not just a matter of my own desire, there is no activity which only implies, to be ethical, putting oneself in the place of another to judge its compatibility with claims comparable to mine emitted by others. Of course, I don't have to ask others that they do exactly what I do or will do in their place in such a given situation, nor must they ask me that I conduct myself as they conduct themselves, but no act or project, if it wants to be called ethical, must interfere with the actions or projects of others or my own; at least if it inevitably causes this interference, it can only be if everybody deals it with the others.

If the notion of person is presented in this manner, there is nothing to complain about; but there is also no reason to give it a place, as it suffices that, act by act, or rule by rule (at the time when they are enacted and implemented), the preferences that are promoted or that prevail are compatible with our other preferences and others’ preferences, or simply that they are not incompatible, for them to have a value. Most of the time, except in the case of sharing, there is no reason to compare the values of preferences put into play to adjust them to each other:5 the ethical space is big enough for a preference to be compatible and coexist with quite different preferences. Preference is not required to be a preference of such a person with respect to such other persons’ preferences. The play of passions suffices without there being need to refer them to “persons”; this reference goes beyond what ethics usually requires.

To refer a preference to a person who must assume it as his own faced with other people who also assume their own preferences is to put him in a position where he must account for this preference and to challenge him where it would be inconsistent with what a person is supposed to owe himself. By invocation of the person, of what he owes to other people and what he owes to himself—even though it might well be another who would remind him of it—an instance is produced whereby a preference, rather than being related only to preferences it may hinder, is returned to preferences that have nothing to do with the eventual difficulties it encounters directly, and—consequently—confuses and obscures the ethical issues. What most often condemns the use of the notion of person in ethics is its logical incapacity to allow the resolution of problems with its own resources, and the necessity to import other concepts and parameters, drawn out from circumstances (age, patient’s condition, patient’s awareness of his situation, family circle) in order to best resolve them. Similarly, the notion of autonomy—which characterizes the notion of person—is often unnecessarily appealed to in circumstances that don’t require it.

We're not saying—as will be seen from the first chapter—that the person, characterized by autonomy, must always be discarded without any form of trial. This notion can keep a meaning and value in certain circumstances when it comes to what an individual owes to himself; but the concept can also be a contributing factor to misery and despair which could well be done without. Why must the “person” be asked, under the pretext that he owes it to himself, to consider and foresee his end, to hear about the illness he suffers from and its repeated explanation in detail, even if he doesn't want to, even if his whole being revolts against this so-called “knowledge” and he wants to spend his time—albeit illusorily—to continue or complete a work, for example? In any given situation, rather than reading lines to predetermined characters—which is equivalent to substituting another situation—one must retain only those actors who are necessary to respond to its components and structure the required solution with only these components, without unnecessary overloading. There is more: the notion of autonomy, which often is found in an unstable position when fully applied to patients unable to give themselves their own rules, is also a good deal, for others, on a relationship between the doctor and patient that, to be realized from unconscious to unconscious, is not inferior to the contractarian relation of consciousness to consciousness and will to will, nor more inhuman. Not wanting to know something about oneself is not necessarily of less value than this knowledge and the will to it, without otherwise prejudging the capacity of medicine to provide a “knowledge” in any situation. Is medicine not an art of action in a game that, if it has a few certainties, has at least as many uncertainties?

II. Nature, law, and rule

It's without a doubt a huge advantage of contemporary game theory on Kantian ethics to have considered situations and what one can do about them, according to one’s preferences and taking into account the preferences of others, without hiding their random character. Just as in the Newtonian, Kant thought that scientific work must not be satisfied with any degree of probability and must raise the organization of phenomena to the level of laws based in nature, just as he thought the ethicality of actions as the ability to raise their maxims to laws and these laws to nature, but without unveiling to us why a system that has never been but an epistemological chimera—because one has never seen phenomena be ordered according to ideal or perfect laws without being accompanied by a multitude of retouches in the form of “little equations” and probabilistic considerations that deprive them of a large part of their generality—would work better in the ethical field, especially when it comes to medical ethics. The notion of raising acts, be they those of the patient or those of his doctor, to perfect legality, supposedly that of nature, simply makes no sense in an area where ethics addresses risk; because even if the doctor's action is intended to limit this risk, he cannot eliminate it, as some Newtonians were able to figure that things were obedient to pure laws of which the game is simply obscured by the fact that our intelligence has difficulty controlling the articulation of more than two principles without recourse to probabilities.

To clear the least uncertain possible path in a forest of random events, about which one does not know how to speak properly, the rule is rather that set forth by Bayes in his 1763 Essay: it is, in a situation of which we don't know anything other than that such event occurred p times and did not occur q times in n (= p + q) tests, to know, when an event takes place or has taken place, with what chance to be right (or wrong) one can assign a degree of probability which affects the event which seems connected to it by subsequence or consequence. The number n being small or large, the chance to be right or wrong in this assignment may well grow when that number gets bigger: it is still always a chance and leaves the actor—doctor or patient—the freedom to choose one option or another6; the sanction of the real being given, not transcendentally regarding hypotheses, but inside one’s own choice as an intimate tension which arises more or less depending on whether one chooses a more or less risky option. The real is not something that we can determine perfectly and completely in an ideal domain: it is always bound, in statistics and Bayesian probabilities, to an option chosen by someone who lacks all the elements necessary to know if his decision is correct, but is supposed to make the best possible decision in the conditions in which he finds himself. Knowledge cannot only consist of providing statistics, articulating statistics to probabilities, and calculating probabilities in situations that actors can only ever live immanently. There is located the error of the Newtonians who imagined that it was possible regarding any situation to take the point of view of a superior intelligence that certainly no one has and that can only be a phantasm of our finitude. The real is not the opposite of a subject, in a transcendence that demands we choose between it and our desires,7 but it is in the tension between the actor who attaches certain expectations in a given situation and what he is allowed to expect of these expectations in the conditions in which he gives them value. It is clear that of this real the truth is completely temporalized, if one can call “truth” the pretense of saying what happened to him. Because, when I know more about the situation and when my attitude contributes to change and evolve it, my expectations will not be measured in the same way as if they stay the same, and they will be likely to change themselves when the situation appears to develop. But there is no reason to say that, having taken such a decision while I knew little for sure, I was wrong even if “facts” have appeared to prove me wrong; while “facts” appear to have proven us wrong, we might have been right in taking the best decision possible. Truth has a history, and there is no way to escape this historicity. Ethical rules can no longer enjoy the timeless and transcendent position they are given in very crude codes.

The physician should be particularly cautious not to confuse the statistics available to him on a disease and the probabilities he might derive from them concerning the health of a patient he is caring for. A mistake in this area can quickly degenerate into a serious fault that ruins the confidence that the patient has had in his doctor up to this point. It cannot be repeated enough that what happens, in statistical terms, to 75% of a class of patients is not equivalent to three out of four chances for a patient8, even when the patient might press his doctor to tell him something of that order, even when charity might lead the doctor to reassure the patient with such numbers. We can provide statistics but only on the condition of observing precautions which, while giving hope to the patient, do not assign false values to this hope.

III. Bayesianism and game theory

There is more: we have proceeded so far as if, as in Bayes’s dramatization by an ‘I guess’in the Essay of 1763, the decision-maker was alone. In “real” situations, the decision-maker must share his decision with other agents. This is particularly the case in medicine where situations, once they are a little complex, involve several partners, even though the law recently has given primacy to the patient and his decision; that same law, in effect, obligates the doctor, or rather, doctors of this “collegiality”, while members of the family—or their representative—and the trusted person are listened to. In a situation that gives place to consent rather than to a union, that is to say, to a coordination of desires and wishes tending to the same practical effect but that do not identify at all with each other,9 the rule that emanates from the situation and according to which its form must be given and it must be resolved (if this situation is one of conflict) is a rule of composition that does not transcend any partner or that, if it appears to transcend each one, only does so because others were involved in its composition. The rule does not fool anyone by its appearance of transcendence; it is, as Bentham says in the first sentence of Of Laws, a collection of signs to which a number of actors adhere unequally, for different reasons, and to which each submits because he finds his interest there or because a sufficient number of adherents find theirs there such that others are not disadvantaged to the point of wanting to condemn it. The law has no consistency by itself: it only has one by the balance between positions that support it or neglect or refuse it. The temporality of a rule depends on this passionate game of adhesion and rejection: the rule only holds as long as the balance of its adhesions, that is to say, of interests and opinions on those interests, is the more or less clear winner over the disadvantages and opinions concerning those disadvantages.

The rule is a result; one could say of it what game theoreticians, who do not necessarily and certainly not exclusively emphasize what actors deliberately want, say: it is a sort of geodesic passing through the game of pleasant and unpleasant passions. It would be quite wrong to consider this geodesic the result of a contract between people who confront only their own wishes and their own consciences. It is not impossible that the game of wills and consciences isn’t but the disguise of a deeper balance, which was able to know all kinds of vicissitudes and of threats emanating from each partner, before settling around a point that is not also fortuitous once the circumstances and the parameters involved in a situation are gradually given.10 Doubtlessly it is not unique and could be another, but there is not an undefined multiplicity of balance points where the preferences in a given evolving situation converge. Simply, depending on whether the situation will go one way or another, the helix of its positions will change and will find itself in another set of relations of the subject to his illness, reactions he can have to what this disease has become. Since the patient has opted for one procedure rather than for another, in a way, he has chosen a way to live his illness that could have been different, the disease never being other than an illness cared for after having been detected by an examination or rather by the intersection of multiple examinations, so that, always, a situation is a complex intersubjective situation, putting in play parameters and partners who are themselves complex and constantly evolving.

It seems that only a rationality capable of taking into account such situations and the story of their evolution is capable of providing a correct ethics to the medical disciplines. Certainly, it is not unique to medical ethics: the problems of strategy, market, and policy are much more often taken into account by John C. Harsanyi, Frank Anscombe, Gérard Debreu, Melvin Hausner, Leonard J. Savage, and, of course, John Nash, than medical problems, but all of them seem to be covered by the same logic and—in so doing—the schemes of game theory provide irreplaceable matrices to think otherwise than by opposing medical ethics to economics and politics. If, for example, one hesitates to compare the relationship of the doctor and his patient with a system where, in economics or politics, the partners do not hesitate to resort to threats, it should be recalled that the act of convincing the patient, which has always been11and will probably never cease to be a component of care, since we effectively decide for the patient in certain circumstances, includes implicitly, and often kindly, a threat that weighs on the patient's decision, even though he can still assert his refusal to be cared for. This tension, which is rarely open, exists nonetheless in a subliminal state.

Before sketching out a few steps in this direction, we must withdraw from ethics the claim to one (or more) categorical imperative(s) so as to be satisfied with hypothetical imperatives, which largely suffice in its effectuation.

IV. Categorical imperative and hypothetical imperatives in ethics of care

It is generally considered a great advance in method to be able to distinguish the categorical imperative, supposed to be strictly moral, from hypothetical imperatives which are not moral or are so only in appearance. So, if I say “one should not lie”, without adding other conditions, such as not to lie so as to be well regarded by my peers or other men, I set out an imperative that truly has a moral quality, which it loses completely as soon as I add an “if”. This imperative “without ifs” is supposed to govern ethics in its moral foundation, as in the respect or dignity which attaches to the person, and the resulting prohibition of instrumentalizing a person, or turning them into a thing or a product. This imperative, stated unconditionally, seems to give me, in any situation where it is implemented, a kind of view from outside that no other point of view gives me, assuming we were correct in adopting our Bayesian approach. Indeed, Kant does not say I thereby gain a better intelligence of the situation, but I always have, obeying this imperative, an exit, which I have neither to repent nor feel guilty about, because I acted by evaluating my action according to a standard that is not contingent upon a spatiality and a temporality which are inseparable from non-moral assessments of situations.

A long time ago Hegel argued against Kant that the alleged escape from conditionality was merely more or less clever sleight of hand, and that the duty to tell the truth, for example, could never be honored but on condition that we know it, that we look for it, without also knowing how far it was necessary to go to find it. Whether Kant intended to or not, he presented a moral point of view that is impossible for anyone to adopt, and that is simply supposed—as he supposed the perfection of the laws of nature—since there can be no perfect coincidence between actual phenomena and the pretended ideality of the laws. One never knows if he is well-situated to say with certainty that it is his duty; at most we can know that what we do is or is not consistent. Kant is not ignorant of this; which doesn't keep him from continuing to lay out what constitutes morality, letting this objection pass by, refusing to take into account the unsurpassable immanence of our condition to situations. This refusal or negligence corresponds to the weakness of his taking probabilities into account in his theoretical reflection.

In many ways, the criticism that Harsanyi addresses, from the point of view of game theory, to Kantianism—and to its distinction between the categorical imperative and hypothetical imperatives—is very close to Hegel’s.12 But he adds a component that he takes from Adam Smith, in particular that of his famous impartial observer that each would sketch as soon as it comes to an ethical act or any act that is not pure selfishness; it isn't that we don’t ever assert our interest, but we learn to do so usually from a smart, calculated, and impartially sympathetic point of view. In this way we are led to moral rules of this type, which may well resemble categorical imperatives, but that are in reality only hypothetical: “If you want to do what an impartially sympathetic observer would recommend for general observance, do X (or refrain from Y)”.13 One does not thus affirm the obverse of Kantian morality, but rather follows a rule that takes the following general form: “If you want to meet the requirement of universalizability, then do X”. But universalizability, which does not denote the good—since Kantian morality is not an ethics of the good—remains a hypothetical value. Kant fails to demonstrate, or even to show, why universalizability would be the mark of a good action that all good action must satisfy. ”It is impossible to prove that a certain person acts irrationally by failing to conform his behavior to certain formal criteria, if he simply does not want to conform his behavior to these criteria”14. Hume, who could not have known Kant, had already advanced arguments of this kind against moral rationalists who preceded him; he nonetheless did not go as far as demonstrating this proposition that indicates the sense of his approach: that it is false that an immoral behavior is one that does not follow the criteria of universalizability, prescriptivity of reason and dominance (overridingness) of the values of practical reason over all other values. His sentimentality is the result of this failure and the admission that Hume’s skepticism is not so philosophical as the author of the Treatise on Human Nature would like. But has Harsanyi gone a step further than Hume on this subject? If he makes the Kantian position seem a stroke of intuitive force, he has only done one part of the job, not demonstrating the point that was to be expected of him if he wished to be fully convincing. Is it by the process of critique of game theory itself that the selection might be made between rational models that are supposed to be the basis of moral behaviors? The choice is, for sure, more likely to be done by a selection of this kind than by an apodictic decision whereby rationality would be established as unconditional.

V. Game theory, economic values, and ethical values in medicine

Game theory might be best put to use in the relation between the values of care and economic values. Any solution of situations where values conflict is forbidden in principle as soon as we pose the unconditionality or the apodicticity of one of them, as, for example, with Kant, of the value of the person or of that of human dignity. If all treatments are, without restriction, addressed to the person, if each person’s dignity implies that society does not question any expense to respect the so-called “person”, any conflict is suppressed in principle, but it is no less clear that these conditions are those of a sweet dream if they are not those of a nightmare, because who would accept that the society of which he is a member obliges him to an obsession for health giving absolute primacy to care for diseases and their prevention? However, can we accept that care and medication are services and goods like any other, subject to the same bargaining as any other service or any other manufacture, so that they can be bought and sold without any limits on the enrichment of the monopoly seller, for example? Unconditional imperative of the person on one side; unconditional imperative of the market on the other. No one can hope that the problem may be posed in terms of the latter alternative, implying the death of anyone who cannot pay; but there are few who now think about the problem of the cost of healthcare and drugs in terms of the former, as it is generally admitted that values—autonomy and dignity included—are matters of degree, and that it is not always unreasonable to be satisfied with degrees of autonomy and dignity rather than insisting that they always be entire.

We can, from this point of view, only maintain a distance from the authors of the recommendation 101 of the CCNE, so filled with instructions, which treats utilitarianism as a doctrine advocating the unlimited commodification of values and human acts. It is clear that they are wrong and that they contradict themselves, since the pursuit of happiness, of which they believe they can say—by quoting a text of Mill from which we are separated by 150 years15—utilitarians make an absolute, has little to do with the indefinite extension of the market that would rather bring misery and misfortune to a large number of people. Furthermore, if utilitarians did treat happiness as absolute a value as the authors of the CCNE describe, they would prevent calculations by their dogmatism just as much as their Kantian opponents who advocate the absolute value of the person, personality, dignity, and all the concepts that are attached to it; and there would be little progress. It is one of the foundations of utilitarianism to focus on calculations precisely because no one search for happiness—in its approach and its culmination—resembles another; though the market is an indisputable component of this intersection of happinesses, it cannot exhaust the possibilities, and is but a partner that can, at times, contribute to happiness, and at other times, prevent it; and, finally, any being who seeks his happiness does not know exactly what he is looking for, and he finds himself in a certain state of wandering.

It turns out that the drafters of recommendation 101 of the CCNE, who show their hostility to utilitarianism, unwittingly demonstrate its merits by showing, on the one hand, that the criteria of good care are numerous and that they do not suffice to sum up what one can want for a person or what he may want for himself; and on the other hand, that the evaluation of care as good is also subject to various criteria which cannot be easily conceptualized as a unity.16 Simply, what is sorely lacking in these 30 pages is precisely what would articulate this diversity, whether of criteria or evaluation; the authors must themselves face a difficulty that utilitarians have often been criticized for not resolving: to establish a commensurability between these various criteria or between these components of evaluation, or to make a seemingly arbitrary choice. But without this prelude to calculation, ethics only consists of verbal recommendations incapable of weighing, that say nothing as to how they should be put into practice. However, can what could still be considered forgivable regarding Bentham, Mill, and Sidgwick, who stood at the edge of calculation, without ever crossing the threshold of its requirements, still be so considered in 2018, when, for more than fifty years, game theory has provided schemes for the functioning of contracts and negotiations of all kinds? Let us note that it is not a matter of reducing ethics to a kind of market, as some comments of Bentham may have sometimes clumsily been interpreted,17 against the thrust of his doctrine; the way that patients, either as a group or individually—if the distinction makes sense—proceed in the field of negotiations is only rarely comparable to that of a seller or a customer acting in a market. Each case, each type of case at least, has its own content and structure. Even if the market is always a component, it never delivers the last word or the ultimate component.

What each party wants, consciously or not, in a case that requires consent, is likely a balance or a series of balances between different or competing demands that require reconciliation. Points appear, resulting in issues in relation to which it is possible to do mathematical analysis; because, although they are different and others are possible at the moment when one of them appears, they do not arise by chance. An observer who understands the situation, who knows a few elements of the life of the patient, his friends and family, his habits, can get an idea of the places where the balance will be struck, because the elements of commensurability between the parties that are to be balanced or that tend towards balance are not heterogeneous to the extent that everything must be invented anew in order to establish the requisite homogeneity. No value, no behavior is ever advanced which doesn’t include the sketch of a supposed value of the other, or of behaviors supposed to be his. Harsanyi takes this insight as allowing a certain ease in game theory, since, even unfounded, this phantasm of commensurability is not without real ethical effect,18 even when tension would most often be the rule. It is not necessary to take it as an obstacle to a criterion that one might choose; far from being a disruption to rationality, it is there only to give the rule or the law for something else, as the mathematician can give the law of a series in mathematics. And we see here that the object of this rationality is complex, in that it is not described by this rationality as if it were exterior to it. Bayes’s rule, whether used individually or collectively, this community being made up of agents who collaborate or of individuals who are adversarial, speaks not of things, but of our action on things, of our way of making them change. Its object is in the relation between my desire and the desires of others who may let it pass, cooperate with it, or more or less partially refuse it. The rule is not destined to speak, like classical physics, of objects transcending discourse; in his appendix to the Essay of Bayes, Price gives its measure, showing directly that if it had this function, it would have rather a role of skeptical dissolution, and indirectly that it measures preferences by the expectations that they trigger, whether these preferences are regarded in the individual case or seen in the play amongst multiple agents.19

Do not believe that the question of the commensurability of values or behaviors, which is not posed in every situation, as we have said, is only considered by utilitarians and game theoreticians, even though it might be only from time to time; the positions of the CCNE members themselves, who want to be so far away from utilitarianism, require, as they recognize, a multiplicity of criteria for a decision, and a relative weighting of these criteria, even though it would suffice were such a weighting to be merely ordinal.

VI. Conclusions

1. Ethics might thus relate to calculation and even to mathematical calculation. Indeed, its positions have meaning only as compositions of very diverse requirements, unlike morals, which may have elements that are outside any calculation because they are held unconditionally. Nothing, however, is unconditional in ethics, except perhaps the effort to reach an agreement; the synthesis is marked only by a certain type of feeling, which is of the order of pleasure or displeasure, or even which is a mixture of pleasure and displeasure. If, on the one hand, it seems difficult to avoid a priori rules in moral issues, on the other hand, the consideration of the interplay of wills suffices in ethics.