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Abstract

Consensus is one of the major challenges in today’s democratic societies, engaging all citizens and regarding all domains of public activity. Bioethics is one of those domains.

Contemporary democracies are dominated by a pluralism of ideas and practices, dictated by individual freedoms and which gives rise to conﬂicts. These conﬂicts, in the absence of a superior authority recognized by all, can only be solved by consensus building, and society can only aspire to a peaceful coexistence, respecting individual rights and liberties, if evermore broader and more substantial consensuses are reached.

Despite some major examples of the importance of consensus building throughout history, most especially those developed within contractualist theories from the seventeenth century onward, it is in contemporaneity that theories of consensus are more pressingly proposed as a practical way to solve conﬂicts and promote governance at all levels of human activities.

John Rawls and Jurgen Habermas are contemporary philosophers who extensively and profoundly developed theories of consensus. Their theories represent two different moral approaches and two different deliberation models to consensus building in democratic societies, both trying to go beyond the theoretical level and focusing on the conditions and procedures necessary to guarantee the universal acceptance of consensus. Both philosophers are concerned not only with their own ethical theory but also, at the practical level, with its effectiveness.

A third perspective on consensus by Adela Cortina is introduced as a pertinent response to some constraints that Rawls’ and Habermas’ theories present.

Introduction

“Consensus” is a word of Latin origin: “consensus, us,” meaning “agreement” or “accord,” “unity,” and “assent” (common consent). Its etymology, however, is not enough to grasp its full signiﬁcance or to foresee its essential role in today’s world.

Therefore, it is convenient to proceed to the conceptual level, deﬁning “consensus,” which can be done by comparing it with other words with a close meaning such as “coincidence” of interests or “compromise” of positions, to exclude what “consensus” is not (negative deﬁnition) and to state its speciﬁc (and positive) deﬁnition.

“Coincidence” is less demanding than “consensus.” Being spontaneous or accidental and also potentially ephemeral, it does not require any particular effort from the parts involved to be reached. “Compromise” is more demanding than “consensus,” speciﬁcally in what concerns the level of obligation that imposes, frequently requiring acceptance of what is not considered desirable but sometimes merely a lesser evil. “Consensus” is a general agreement that, contrary to a “coincidence” of interests, has to be gradually and carefully built and that, contrary to a “compromise,” stands without reservations.

The idea of “consensus” is not original to contemporary times. It can also be found as far back as in ancient times, in Greek philosophy. Then, the early meaning of “consensus” was close to “consent,” under the perspective that if an opinion were supported by the majority it must be right, being general acceptance a proof of truth (consensus gentium). Aristotle believes it (Nicomachean Ethics), Cicero also refers to it (Tusculanes), and eclectic philosophers support it. On the other hand, skeptical philosophers stress that the support of the majority does not imply the truthfulness of the statement. This truism was important as a basis for the growing discredit toward “consensus” that followed and which would only deﬁnitely change with the development of contractualist theories in modernity and pluralism in contemporaneity.

Contractualism basically and broadly expresses the idea that human societies are only possible due to (tacit) contract or agreement among all persons and that social relations and political obligations are grounded on social agreements, which are extremely useful for the wellbeing of all, individually, and for a peaceful community. The legitimacy of moral norms and of political government derives from the idea of contract or mutual agreement. Therefore, “consensus,” as “agreement,” is the cornerstone of contractualist theories, such as those of Grotius,

Hobbes, Pufendorf, Locke, and Rousseau, philosophers who sought to establish consensual conditions which can enhance the implementation of norms (political and moral) in society. John Rawls, too, is a contractualist.

Pluralism refers to the diversity of opinions about what is good or right and how people should behave, in the absence of a higher authority which imposes itself and decides for all. Within pluralism, this authority only exists if it is recognized as such by all or by the majority. In this situation the only way to avoid conﬂicts or to solve them is through consensus building, either to bring divergences closer, or to designate an authority to help solve the dissensus, or more frequently both. It is within an open and broad debate that conﬂicts can be identiﬁed, that the common use of rational principles can be practiced, and that a new social-political contract can be grounded. Habermas’ philosophy addresses the challenges of pluralism in democratic societies.

“Consensus,” within the pluralism of contemporary societies, is still understood as “agreement,” but less as a point of departure for the understanding of a reality and more as a goal to be pursued daily; furthermore, the focus is not only on the objective to be reached but also on the path to be pursued, and the means become as important as the ends. Indeed, today “consensus” is mainly a way to overcome conﬂicts. Therefore, although theories are important, consensus is not achieved only through the rationalization of the different positions in conﬂict (although it can bring them closer) but also and mainly through the establishment of the right conditions for the correct use of reason. At the practical level, effectiveness becomes as important as the soundness of the reﬂection on principles, at the theoretical level.

It was only in contemporary pluralism that philosophers proposed theories of consensus aiming either at a mutual acknowledgment of the legitimacy of contradictory positions, or at an agreement on perceptions of goodness and rightness (narrow sense), or at the accomplishment of conditions for a generalization of rules (broad sense).

Bioethics beneﬁts greatly from the different theories of consensus, taking into account that it cannot be restricted to a unique ethical perspective that would establish universal moral norms, and therefore needs an ever wider consensus to be efﬁcient and to truly become global.

The Claim Of Consensus And The Deliberative Procedure

Today’s claim of consensus shifted the emphasis from the outcome of the decision to the quality of the decision-making process. This reorientation enhanced deliberation which, in any case, was never understood as reduced to a choice but, on the contrary, was always deﬁned as a reciprocal exercise of intelligence and will, balancing the different alternatives.

Traditionally, however, according to Aristotle and Thomas Aquinas, deliberation would only be applied to the means to be implemented in view of pre-established ends. Today, in the absence of pre-established ends and also under the growing role of deliberation, this process applies not only to the means but also to the ends, and this is the second shift to underline in these last decades.

These two new realities are imposed by the intensiﬁcation of pluralism and its spreading worldwide, which makes the possibility of reaching consensual decisions harder. Therefore, the main expectation to build a reasonable level of consensus is to bet on a participative process of decision-making which can lead to the acceptance of the ﬁnal decision even when not agreeing with it. It is the quality of the process that guarantees the legitimacy and the acceptability of the outcome. Therefore, the soundness of consensus building grounds on the consistency of the deliberative procedure.

Brieﬂy, today, consensus is procedural: its level of success or of agreement is proportional to the quality or scope of the process.

Bioethics is becoming more and more deliberative. This is, in fact, the working method of the great majority of ethics committees at all levels. In practice this means that, instead of centering the debate on the confrontation of ideas, trying to elect the best one and rejecting all the others, the deliberation methodology allows for the consideration of all the different approaches in conﬂict, focusing in what they share in common or/and what can be articulated, reaching a more comprehensive and enriching perspective, engaging the most stakeholders in the debate, involving more citizens, and, therefore, promoting social cohesion and peace.

Theories Of Consensus

Many contemporary philosophers have developed theories of consensus together with deliberative procedures, but there are two who undoubtedly stand out for the depth and soundness of the theory proposed, for the concern about the conditions to build consensus and the effectiveness of their proposals, for the originality of their thought and the strong inﬂuence played, as well as for the positive impact in bioethics.

The ﬁrst one to be mentioned is the North American John Rawls who, through a new model of political and social contract, tries to reach a universal agreement on principles, rationally considered and always paying attention to the conditions for their acceptance. The second philosopher to be mentioned is the German Jurgen Habermas who, through the proposal of an ethics of discussion, tries to confront with the conditions for universality reached during the debate, without excluding singular perspectives frequently motivated by individual beliefs or community traditions.

There is a third philosopher, the Spanish Adela Cortina, who could be added to this short list of theorists of consensus, most specially for the dialogue she is able to engage with Rawls and Habermas, widening the scope of consensus and applying it to bioethics.

Rawls’ Theory

John Rawls is the most prominent political and social contract theorist of the twentieth century, and this doctrine constitutes the framework of his philosophical reﬂection. This means that for him political rules or moral norms cannot derive from any authority external to the community where they ought to be applied, but must originate in a contract of mutual agreement among free and equal persons thoroughly knowledgeable of human affairs. They are a product of a negotiation process.

If no one can impose his/her particular views and options upon others, it follows that all political decisions must be justiﬁed and only by reference to public values and public standards – which falls within Rawls’ doctrine of public reason. Otherwise, the decisions made and the justiﬁcations presented would only be acceptable to oneself or to a few, and not to the whole community as expected. The reasons that justify and support the decisions taken can differ, expressing different views of the world, but they will all endorse the same decision. It is what Rawls calls overlapping consensus, extremely ﬂexible, most respectful of each one’s ideas, and very efﬁcient regarding the stability it brings to society.

At the same time, it is important to underline that Rawls recovers the social contract theory in the line of Kant. This means that he aims at an impartial perspective, from which he can assess and justify moral rules or principles (Kant’s categorical imperative procedure), and that, along the whole process, he relies mainly on reason, both to reach that impartial point of view by suspending all individual or subjective aspects which interfere with an objective evaluation of principles and to deﬁne these principles.

To reach this impartial level of analysis that guarantees the universal validity of the deﬁned principles, Rawls draws an imaginative method leading the parties to what he calls the “original position,” that is, to the very origin of social contract when representatives of free and equal citizens gather to establish the principles of social and political justice they consider necessary for the well-being of the majority of the citizens. In this hypothetical situation and in order to guarantee the universal acceptance of the principles to be formulated, the philosopher proceeds to introduce the most striking feature of his original position, the metaphor of the “veil of ignorance”: the persons who engage in the debate to deﬁne justice are deprived of all knowledge of their personal characteristics (age, race, gender) and of their social (class, wealth) and historical circumstances (generation, political and economic system of the society to which they belong), devoid of all self-interest, in order to assure the impartiality of their choices. For Rawls “This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances.” (1999: 10).

At the original position, behind the veil of ignorance, the parties impartially agree on two principles of justice, ranked in lexical order (priority order). The ﬁrst principle, of equal basic liberties, says that “each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all” (2001: 42). The principle ascribes equal rights and liberties to all citizens. Unequal rights would not beneﬁt those who would get a lesser share of rights, so justice requires equal rights for all in all normal circumstances.

The second principle states that “social and economic inequalities are to satisfy two conditions: to be attached to ofﬁces and positions open to all under conditions of fair equality of opportunity (principle of fair equality of opportunity); and to be to the greatest beneﬁt of the least advantaged members of society (the difference principle)” (2001: 42–43). The distribution of wealth and income must be done in such a way that inequalities in the distribution of goods can produce a greater total product.

Once the two principles of justice as fairness are deﬁned, it must still be assured that all citizens will freely obey them, establishing a stable society. Again, it is the notion of overlapping consensus that becomes decisive: citizens can support the same basic laws for different reasons if these are impartially deﬁned, and the Rawlsian original position does specify a shared public perspective (involving all relevant conceptions of person and society and principles of practical reasoning for making judgments about justice) according to which citizens have objective reasons to act regardless of their particular points of view.

The Rawlsian principles of justice are undoubtedly the major contribution of the philosopher to bioethics. Rawls, himself, did not enter into this ﬁeld, but other authors, such as Norman Daniels, did apply their doctrine to bioethics. In this realm there are two issues that can be usefully presented to illustrate not only the importance of Rawls’ theory of justice for bioethics but also the absolute need of consensus for the adoption of health policies, among others. A ﬁrst and more conﬁned issue would be the system used to distribute organs to sick people in need of transplants. This one has to be established behind a “veil of ignorance” and to be consensual to be efﬁcient. A second and broader issue would be the rationalization of scarce healthcare resources applying Rawls’ two principles of justice which result in the maximization of the primary social goods and healthcare to the less well-off.

Habermas’ Theory

Jurgen Habermas is one of the most inﬂuential philosophers in the world, author of an extensive and diverse work which has been developing a fruitful philosophical, social, and political debate engaging different prominent philosophers from continental and Anglo-American traditions of thought. One of his broad domains of interest and study relates knowledge, communication, and rationality, within which his reﬂection on consensus and his major contributions to bioethics take place.

Since Habermas’ earlier works, the philosopher applies his theory of rationality to the critical analysis of contemporary society, focusing, among other issues, on the critique of science and technology as an ideology: scientism reduces knowledge to science, and technocracy reduces practical questions about the good life to technical problems for experts, both excluding citizens’ participation from the public democratic discussion of values. However, the philosopher does not share the pessimist utopia of cybernation or the liberal approach to scientiﬁc-technological progress. He aims at a different perspective on modernity, proposing a communicative rationality, that is, oriented to achieving, sustaining, and reviewing consensus, and which develops the norms of action from itself.

The only reasonable rationalization is the reconciliation of democracy and technocracy, through a political communication that uniﬁes reason and decision (will). This public use of reason is the only one that establishes a true intersubjectivity, following the Habermasian paradigm shift from a philosophy of consciousness to one of communication. Habermas develops his philosophical reﬂection under the paradigm of language which is eminently social.

Communication becomes a core concept in Habermas’ thought, being understood as a basic activity through which, and under the mediation of language, two or more subjects are capable of spontaneously agreeing on a shared project of action or on a shared view of reality. Broadly considered, communication also involves discussion, although these two concepts express different ideas: discussion is one kind of communication, speciﬁcally based on argumentation and that is called for only when communication is broken by disagreement or conﬂict. It is when the reality at stake is challenged, when communication becomes problematic, and when consensus does not stand any more that discussion is needed to argue about what is being advocated, to justify, that is, to put forward the reasons why it is being defended, and to reestablish consensus. It is the lack of consensus that obliges communication to deepen into discussion, an argued justiﬁcation, a “reﬂective form” of communicative action.

It is from these presuppositions that Habermas develops his discourse ethics or his theory of morality, following a dialogical approach to practical reason, although acknowledging the Kantian inﬂuence. Indeed, Habermas, in the wake of Kant, wants to establish unconditional moral obligations. Nevertheless, in today’s pluralist and multicultural societies, the conviction that all persons would arrive to the same conclusions about what duty requires when following the categorical imperative is not really sustainable. In a dialogical ethics, the impartiality of moral norms has to be reached by a discussion engaging all possible persons affected by the issue in question. Therefore, given the need to revise the moral norms which are being challenged today and following the procedure of discussion, Habermas deﬁnes two principles: the “U” principle as a rule of argumentation and the “D” principle which deﬁnes the procedural framework within which the practical normative discussions take place.

The “U” principle states that “All affected can accept the consequences and the side effects [that] its [a proposed moral norm’s] general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities for regulation)” (1990a: 65). This principle, which presents a consensus model of moral justiﬁcation, is implied in all discussions about norms, and every valid norm must fulﬁll it.

The philosopher then formulates the principle of discourse ethics (D) which stipulates that “Only those [moral] norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse (1990a: 66).” A rational morality has to comply with the D principle, which is morally neutral, impartial.

Brieﬂy, discourse ethics can be characterized as being one of mutual understanding between all parties, of consensus, where the “we” prevails over the “I” and social cohesion is reinforced. Indeed, both a consensus theory of truth (factual truth, being the objective world the same for all) and consensus model of moral justiﬁcation (interpretation of moral rightness) suppose that relevant reasons should be acceptable to any reasonable agent and that, given a sufﬁcient length of time and adopting an inclusive involvement of the participants, the consensus reached should be universal.

Nevertheless, the consensus model of moral justiﬁcation, unlike the consensus on empirical truth, is not a compromise, or an agreement sensu stricto, but a tension toward an idealization; this sort of consensus, resting on the intersubjective recognition of criticizable validity claims, is an idealization grounded on a language experience and an indispensable universal condition for social cohesion. In what concerns bioethics, the tension between interest groups or lobbies such as patient associations, industries associated to biomedical research, governments, etc. is quite common, consensus being the ideal or goal to pursue in all debates. The reference to individual and group-related particularities entails the difﬁculty to reach a universal consensus, the exception being – according to Habermas – choices of technologies that shape the future of human nature, such as genetic enhancement engineering.

Cortina’s Proposal

The Spanish philosopher dedicates a signiﬁcant part of her work to bioethics, always emphasizing its public dimension drawn from its deliberative methodology and capacity to build consensus.

It is in this broad context that Adela Cortina systematizes the three most relevant models of public deliberation or procedures to consensus building – Kant’s, Rawls’, and Habermas’ – establishing an evolving sequence at the end of which she presents her own proposal.

Immanuel Kant grounds consensus building on two major concepts, stressed as such by Cortina: publicity (principle) and the public use of reason. Publicity is presented as a power that legitimates politics. This power, to be fair and to fulﬁll the terms of social contract, has to express what all citizens supposedly want. Therefore, a politician cannot rule only according to his/her own will but following a rational will which should correspond to what all citizens might want. This rational will is identiﬁed by the public use of reason applied to the public powers and expresses the rights of the citizens. The public use of reason, however, is only duly exercised by educated persons, the only ones capable of a right use of reason and of a rigorous judgment. They are the ones who can implement the mediation between civil society and political power, assuring the political expression of public opinion (which corresponds to consensus).

According to Cortina’s interpretation of John Rawls’ philosophy, one of his major contributions for consensus building is the widening of the use of public reason from a privilege of educated persons to a competency of all citizens: democracy requires the recognition of equality of all citizens, making them also equally committed to the achievement of common good. Throughout this process of public deliberation, each one is called to participate, in order to reach a consensus as broad as possible. At the same time, they should disregard their substantial conceptions of good and/or particular interests (except when these can help to attain consensus), which frequently put the consensus building at risk. Therefore, for Rawls, consensus building demands a deliberation process that excludes all subjective perspectives, illustrated by the metaphor of the “original position” and the development of the concept “veil of ignorance,” and unfolds in a formal and neutral context.

The third model highlighted by Cortina is that of Habermas, who is said to give a step further on the theory of consensus by considering that substantial and individual interests cannot really be put away from the deliberative procedure or disregarded in daily practice, but, on the contrary, should be considered for what they are. Indeed, the philosopher thinks that it is preferable that all subjective aspects be presented in a transparent way and subject to debate, regardless of their contribution to build or reinforce consensus. Therefore, Habermas widens the public sphere by involving all persons engaged in a discourse striving to form a common will, and not only a few enlightened, involving all kinds of reasons, and not only the neutral, moving from a formal consensus to an open discussion ﬁeld where arguments are confronted, preventing anyone’s dominance (private or state interests). The main point is to conﬁrm that the decisions taken, their consequences, or their side effects, following the argumentation of an intersubjective communication, can be accepted by all concerned.

Adela Cortina intends to open this under construction deliberative model even wider, involving not only the persons who conduct themselves by interests that can be universalized but all persons who somehow can be affected by the decisions taken. In what concerns bioethics and speciﬁcally eco-ethics, the potentially affected are all humans, the next generation, and nature itself, all of them in need of representatives of their interests.

Cortina places herself after Kant, Rawls, and Habermas in what concerns the scope of the deliberative public sphere. She considers that, today, decisions with a social impact, well-established norms, affect all persons, without exception, and not just a few (more or less numerous according to the criteria adopted). And Cortina stresses: “Por lo tanto, para que la norma sea correcta tienen que haber participado en el diálogo todos los afectados por ella, y se tendrá por correcta sólo cuando todos -y no los más poderosos o la mayoríala acepten porque les parece que satisfacen intereses universalizables. Por tanto, el acuerdo sobre la corrección moral de una norma no puede ser nunca un pacto de intereses individuales o grupales, fruto de una negociación, sino un acuerdo unánime, fruto de un diálogo sincero, en el que se busca satisfacer intereses universalizables.” (1995: 57). This is indeed a new idea that is becoming common in our global world. Under Cortina’s perspective, all people should engage in the construction of a public ethics, shaped by public opinion, which is no longer conﬁned to a local or regional community or to a country, but is transnational, global. And so should also be the consensus, namely, within bioethics. Besides, public ethics and bioethics should take into consideration all those potentially affected in the future, even if they are not engaged in the current debate. This could be the widest conception of consensus.

In what concerns bioethics, this global consensus has been pursued mainly by international ethics committees. These bodies, without legal power, have been able to inﬂuence states and governments, leading them to some common policies regarding the requirements for a research subject’s protection and clinical practice standards and discouraging medical tourism. The lack of wide consensus on issues such as abortion, surrogacy, organ commerce, and euthanasia, among others, deepens inequalities and discredits bioethics. This is just one of the reasons why a global bioethics is needed.

Conclusion

Regardless of the particular theory of consensus considered and of its author, consensus building always corresponds to a signiﬁcant level of citizen’s participation in the deﬁnition of what is true or good and of duty. In today’s democratic societies, the truth, the good, and the duty are deﬁned within domains where it is possible to reach consensus. This means that its adequacy, or its validity, is not subject to any scrutiny in itself, to any certainty, but only to a sort of agreement among the persons involved. These are, then, consensual truths, goods, or duties, waiving a metaphysical ground or any other beyond the agreement between parts.

Somehow, starting from different presuppositions and unfolding within different frameworks, contemporaneity seems to join antiquity and its concept of consensus gentium when what was supported by the majority was presented as truthful and good.

Today, moral norms are said to be valid according to the level of consensus reached, taking into consideration the degree of inclusion of the participants in the debate, the rationality of the arguments, and the rightness of the procedure able to lead to universal acceptance. The focus moved from a statement agreed upon to the procedure of consensus building. Democracy, in today’s pluralist and multicultural societies, gives birth, at the moral level, to an “ethiocracy,” that is, a deﬁnition of good or duty decided by the majority of the participants engaged in the debate. In this perspective, the procedure thus followed becomes the only process of validation of truth and good.

These wide consensuses build common morality, which is not very demanding at the theoretical level, but is highly efﬁcient at the practical level: it does not ask for a sound foundation beyond reasonable argumentation and it is easily accepted. In any case, consensuses are always minimalist: the wider they are in what concerns people involved, the narrower they are in what concerns the content they accept. Consensuses are also minimalist, either in what they reach or in what they require from people.

Bioethics is precisely one of the ﬁelds that can illustrate what has just been said: the majority of ethics committees work on consensus building which justiﬁes that just a small number of international statements have been issued (declarations, conventions), that is, few aspects in few issues have gathered consensus. For these, hardly any foundation is needed, but only a reasonable justiﬁcation from a human rights perspective, today’s common morality.

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