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Abstract

All justice ethics aim at ﬁnding balance between liberty and equality, between individual autonomy and the common good. However, each raises objections that demonstrate their own limitations. Three paradigms in which the theories ﬁt will be presented, as well as four models that illustrate how the theories apply to bioethical problems. Moreover, the theoretical perception of justice has set the foundations for a multiplicity of responses given to the most prominent ethical questionings.

Introduction

All justice ethics aim at ﬁnding balance between liberty and equality, between the individual autonomy and the common good. On the other hand, all theories pretend to substantiate a universal ethics.

However, each of them raises objections that demonstrate their own limitations. Three paradigms in which the theories ﬁt will be presented, as well as four models that illustrate how the theories apply to bioethical problems. Three particular aspects will be addressed in more detail: justice in health care and health-care choices, justice in research, and the place of intergenerational justice in the bioethical discourse.

Paradigms

The ﬁrst paradigm puts justice in the context of a teleological ethics. In Greek, telos, means “end,” the purpose, and teleological ethics aims at achieving good, which is the purpose of all action. This paradigm applies, although in very different ways, to Aristotelian ethics, to utilitarian theories, and to most of the Western world ethics until the end of the eighteenth century.

In Aristotle, justice is considered as the ﬁrst of moral virtues. Aretê (virtue) means excellence in the behavior and, therefore, resides in the one that behaves, transforming him, through the acquisition of a disposition, induced by habit, to act in a certain way. The virtuous action is the one that avoids the opposed vices of excess and deﬁciency. Virtue does not merely require a good intention, but the deliberate choice that conducts to action. Aristotelian justice aims at the goodness of the city-state, which resides in the liaison between equality, legality, and liberty. Aristotle speaks of commutative justice (an equitable exchange of goods between individuals), distributive justice (balance in the distribution of rights, goods, and services among the individuals of the same status), and punitive justice (balance between crime and punition). In Aristotle, justice focuses in the virtue of the human being educated to be a good citizen, an activity that should respect the essence, of the free individual and of the political community. After Aristotle, this theory will give rise to the theory of natural law. The difﬁculty resides in determining the nature of real; in effect, modern and contemporary sciences have a new vision of reality.

Should the Aristotelian respect for the nature of the human being be completely abandoned? Some contemporary theories consider that the deﬁnition of the Aristotelian good life still has pertinence from a philosophical deﬁnition of human being. It should be noted that universal human rights involve an implicit comprehension of human dignity, which refers to a philosophical deﬁnition of human being. How do we justify the universality of the dignity of the human being and the equality that stems from it? In fact, only the universality of human rights justiﬁes it, for example, the need to welcome the refugees that ﬂee from violence in their home countries. In this respect, the role of the Judeo-Christian culture and religion in the universal promotion of human dignity should be acknowledged (although it has not been applied in a coherent way, as the persistence of slavery demonstrates). In modern times, the theory of natural law gave way to the theories of liberty and justice, based on a social contract l (Hobbes, Locke, and Rousseau).

The deontological paradigm constitutes a different way of thinking the relations between justice and good. This paradigm is ﬁrstly associated with the ethics of Immanuel Kant (1724–1804), as well as with the primacy of liberty. In Kant, liberty should be unconstrained by any sensitive or particular desire; while free of any kind of sensitive dimension, liberty is rational, therefore universal, as it is shared by all human beings. Only rational freedom can substantiate a universal moral law.

Such is the purpose of the categorical imperative that rules the human action: the duty to act rationally. Under the title The Doctrine of Right, ﬁrst part of The Metaphysics of Morals, one of his latest works, Kant applies his theory of duty to the ﬁeld of external and practical relations between individuals: “Right or wrong applies, as a general quality, to an act (rectum aut minus rectum), in so far as it is in accordance with duty or contrary to duty (factum licitum aut illicitum), no matter what may be the subject or origin of the duty itself.” However, by deﬁning a person as an end in itself, as usually argued by bioethical opinions, Kant introduces a teleological dimension in his deontological theory. Human rights and justice can no longer result from a natural right, but from a moral imperative.

Recently, a new paradigm has emerged, which, with Amartya Sen, can be designated by the paradigm of global realizations. This new paradigm partially overlaps with teleological and deontological ethics. Other examples illustrate the appearance of this paradigm: Hans Jonas (1979) considers that the ﬁrst ethical duty consist of acting in a manner that life on earth may continue; Hans Kung suggests a “worldwide ethics”; on the other hand, the global ecological balance demands increasingly urgent actions; ﬁnally, socioeconomic inequalities between communities and countries raise increasingly evident challenges, namely, in health and in basic conditions for survival. Therefore, Amartya Sen should be acknowledged when, in his interpretation of Bhagavad Gita and of the Indian philosophy, he analyzes the difference between the concepts of Niti and Nyaya. Niti designates the right behavior, in compliance with the institutions and the ethical and political rules that are considered, theoretically, to be the more just ones; on the other side, Nyasa analyzes the real situations that occur as a consequence of the good decisions – or decisions according to the theory of duty. Amartya Sen’s theory afﬁrms that the search for justice must reintroduce the Nyaya perspective: to consider the global results that in fact occur from social realizations. For example, if a just decision – in conformity with institutions and established rules – will provoke a massacre of innocents, this situation must previously be assessed through ethical imperatives. This paradigm broadens, with a more solid base, the utilitarian thesis.

Models

The ﬁrst model of justice to retain is utilitarian ethics, included in the teleological paradigm, which appeared in the United Kingdom with Jeremy Bentham (1748–1832) as its ﬁrst spokesman and has John Stuart Mill (1806–1873) as one of its worthiest representatives.

Using freedom as a starting point, Bentham considers that the good of moral action consists in maximizing happiness, seeking pleasure, and avoiding pain. From this deﬁnition of ethical good derives a universal rule consisting in the ideal of the greatest good for the greatest number of people – or for society in general. For Bentham, it is possible to establish a universal criterion for measuring utility. This objective standard is based on the possibility of discovering a unique scale applicable to all actions to make all pleasures and pains comparable. In this manner, the consequences of moral action are analyzed in the light of the utilitarian criterion (utilitarianism implicates consequentialism). It is understandable that utilitarianism ﬁnds its ground in economy and industrial production when, for example, pleasure or utility is measured against the cost that most of the society is willing to pay. Even human life has a price, which insurance companies convert into money. In many bioethical questions (for instance, the distribution of resources in the health sector), utilitarianism cannot be neglected. However, the main objections have been denounced: ﬁrstly, they reside in the frequent sacriﬁce of the human rights of a person or of a minority (ethnical, religious, sexual, etc.) for the beneﬁt of the majority, and, secondly, utilitarianism consists of comparing on the same scale pleasures of profoundly different natures, both from a quantitative and a qualitative point of view. For example, the bioethical issue of surrogacy, or the political use of torture, meets different responses whether it is analyzed under utilitarian ethics or under other ethical models.

The libertarian model, of which Robert Nozick is the most prominent representative, considers that each individual is entitled to the product of his work. The ﬁrst rule is the appropriation of any good that has no owner; the second rule is free trade based on the agreement between parties; and the third rule is the punitive principle, which corrects past injustices but does not aim at reaching a greater social equality. This ethical model refuses the redistribution of wealth from the State and would, for example, be against Obama’s health reform in the United States. This model of ultra-liberalism has been greatly criticized for ignoring the effort to compensate social inequalities.

The equalitarian model is opposed to the libertarian model. John Rawls (1921–2002) is considered the most important representative of this theory. His treaty A Theory of Justice (1971) ﬁts in the tradition of liberal equality. Equality presupposes a just distribution between goods and services, obligations and honors. Nevertheless, since all goods and services are not comparable and people are not always able to reach a just agreement for the sharing of goods, a formal rule for distribution, universally accepted, has to be established. Rawls considers that this is only possible through the “veil of ignorance,” a ﬁction that fundaments a new form of social agreement (“the original position”): in the ﬁction scenario where all individuals lack knowledge about what kind of life they could have (slavery or wealth), the members of the community seek to ﬁnd what are the principles of distribution susceptible of reaching a consensus between all. The agreement about two formal and universal principles of distribution would arise from this hypothetical discussion (the basis of Rawls’ thesis): the principle of equality that ensures the respect for the human fundamental rights and the principle of difference, where all differences between members (of wages or of position in the hierarchy) must serve for the greater good and the access to a privileged position in hierarchy must be available to all on the basis of universal criteria. Such is the duty of justice as fairness. Rawls’ theory is opposite from utilitarianism and, as Kant, enters in the deontological tradition, since it does not presuppose a deﬁnition of good and good life. One of the criticisms aimed at Rawls lies in the impossibility of ﬁnding agents that can enter a discussion in a neutral mode, without preconceptions on values and on different comprehensions of good.

The communitarian model is distinct from the previous models. It considers that the debate about justice and common good cannot be made with “uninterested people” (as in Rawls), i.e., distant from their existential and sociohistorical conditions. The consequence is that a universal model of justice applicable to all societies is impossible. On the other hand, the priority of common good over individual liberties does not eliminate those liberties, but brings a reference for their applicability.

There is no unique answer concerning the relations between justice and good; the tradition of each society is considered in the resolution of concrete situations. There are inalienable human rights, but the concrete applicability in different societies will obtain different answers. More than ever, the principles and values demand a practical wisdom. Solidarity is an important case (for instance, is it fair to favor ethnic minorities, disregarding objective criteria of quantitative nature?). Such is one of the problems studied by Michael Sandel, an important representative of this current of thought. Furthermore, in the line of Alasdair MacIntyre, the answers regarding justice cannot do without an “ethics of virtues.”

Justice does not reach a unique principle, which applicability would guarantee a universally accepted result. Therefore, as Amartya Sen (in his The Idea of Justice), Michael Sandel, Charles Taylor, Philippe Van Parijs, and others do in respect of the human fundamental rights, the ethical question of common good has to be confronted with the political consequences at a global level. In other terms, the liaison between liberty, equality (fairness), and common good must be considered in the scope of the third paradigm described above.

Justice And Bioethics: Three Cases

Ethical choices are a part of our everyday lives. In the context of a pluralistic and multicultural society, our views, deliberations, and decisions are challenged when confronted with those of others who have diverse values.

Speciﬁcally in regard to ethical decision making in health, in 1979, Tom Beauchamp and James Childress published the Principles of Biomedical Ethics, in which the principle of justice meant the fair distribution of beneﬁts, risks, and costs and that patients in comparable positions are treated in a similar manner. In that same year, the principle of justice was recognized as a prima facie ethical rule for responsible research using human subjects in the Belmont Report (1979).

In the Barcelona Declaration (1998), the ethical principles therein were placed in the context of care for others – a context that already presupposes an ethic of solidarity, responsibility, and justice (fairness).

In UNESCO’s 2005 Universal Declaration on Bioethics and Human Rights, Article 10 makes clear that “The fundamental equality of all human beings in dignity and rights is to be respected so that they are treated justly and equitably,” thus linking justice to the seminal notion of equity but also to the more recent but no less relevant concept of equality (in terms of dignity, freedom, rights, opportunities, beneﬁts, and responsibilities).

Justice In Health Care And Health-Care Choices

Throughout the centuries, the notion of justice in health care evolved from a strict standpoint in a binomial relation between the patient and his physician based on the equitable exchange of goods and the fulﬁllment of contractual obligations (commutative justice) to a concept of social medicine based on a construct of distributive justice which focuses on how the society should allocate its resources among individuals who have competing needs, regardless of merit or status – a rippling effect of the profound changes set forth by the social movements in the nineteenth century.

Distributive justice becomes even more significant in a context of scarcity. This clearly explains why it has become a key issue in bioethics today: never before has such overwhelming progress in medicine, sciences, and new technologies been in such stark contrast to the limitation of its fair use and access, even more so throughout different areas of the globe. High-quality care, with extensive coverage and unrestricted access, is a difﬁcult, if not unfeasible, balance. As the members of a community cross over the threshold of basic survival and become better-off, it is only natural that they anticipate not only being healthy, but progressively healthier. The share of national income allocated to health care will increase alongside societies’ expectations. Consequently, the large public component to health funding dictates that the costs of an individual’s health will affect all other members of the community. The ethical hurdle lies in deﬁning a model deemed just by all parties – patients, health-care providers, and tax payers – that can translate into policies for the distribution of costs and beneﬁts.

What is fair in the sense of constituting a claim on the resources of others? Life in general and medicine in particular may put individuals in contact with circumstances of enormous despair. The pain and vulnerability brought by illness call upon the solidarity of the whole community to aid and give comfort. When considering the allocation of scarce resources and the establishment of priorities in health, the principle of justice will not be put ﬁrst, neither by the patient, who in the exercise of his autonomy vies for his own individual good (to a point that it is not reasonable to expect him to voluntarily give it up for the good of society), nor by the health-care professional, true to beneﬁcence and bound to search, even if within context, for the best possible solution for the patient. Neither can assume the responsibility of a just distribution in a particular health relation. In the words of Edmund Pellegrino, “the patient does not expect the doctor to act as a representative of social and economic policies.” It falls upon policy makers (the government, the health-care system, the hospital management) to translate the concept of distributive justice into guidelines that may stand behind daily decisions, namely, the allocation of scarce resources with the view to maximize the beneﬁts to the community.

At policy level, justice must be put in the balance also regarding other areas without which the pursuit for a “good life” cannot come to fruition – meaning, in a macro-allocation perspective, just access to work, education, housing, social protection, and other pillars inscribed in our modern human rights catalogue. Various sets of social determinants of health – according to the World Health Organization (WHO), the conditions in which people are born, grow, live, work, and age – have since gained wider usage.

When the sustainability of resources for health is at risk, the corrections of inequalities between different social groups (while reducing expenditure), along with the distribution of resources in care in the context of an aging population, are vectors that should be taken into account in the dynamics of distributive justice. In some areas of health care, it is argued that a two-tiered system is a compromise that proposes a minimum adequate amount of health care for all; a hurdle becomes immediately evident: how to deﬁne a “decent minimum” or “minimum adequate amount” of health care. In plural societies, let alone unequal ones, what is a minimal level of investment for some may not translate into a decent level of care for others.

In turn, the Council of Europe’s Convention on Human Rights and Biomedicine (1997) expressed the notion of equitable access to health care, by stating in Article 3 that “Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality.”

Justice In Research

The extraordinary contribution of biomedical research to human life, as well as the gains in health, economy, and social welfare, is commonly acknowledged. However, all these would not, by themselves, justify resorting to human beings for experiments, whose risk can be estimated but never fully anticipated. In addition to a classical utilitarian benchmark, other criteria of ethical reasoning must be used. Values of solidarity and altruism substantiate the voluntary and conscious participation in such studies and trials to beneﬁt the well-being of patients, individual members of the community, or the community as a whole.

The principle of justice is not solely monetary: it demands the fair and equitable selection of participants, namely, by protecting vulnerable individuals or populations that may not be in the position of giving their free and informed consent, such as prisoners or institutionalized children. Justice is called upon to make clear that the scientiﬁc objectives should determine who can meet the inclusion criteria to participate in a research project, not whether one belongs to either a privileged or vulnerable group.

Justice must also address matters of inclusion in research concerning individuals, groups, or communities that might have been wrongly excluded on the basis of attributes unrelated to the research at hand, such as culture, language, gender, ethnicity, age, or disability. In fact, their exclusion, even in a context of a protectionist attitude, may result in a failure to treat them justly. Fair inclusion and equitable conduct toward vulnerable individuals or groups will ensure that the treatments given to these populations are effective and safe.

Research designed by developed countries is often carried out in resource-poor settings. Sometimes the lack of conditions in the hosting countries is used to justify research with placebos even though proven treatments exist: withholding existing treatments to observe the natural course of disease; distributing drugs which have not been approved in their country of origin; a more permissive view on equipoise; and the denial of posttrial beneﬁts to research subjects. In this regard, should a universal standard or “gold rule” of care be observed regardless of where the research is conducted, or can the existence of double standards be justiﬁable by context to permit less stringent ethical standards than those required in the countries of origin? A report published by the Nufﬁeld Council on Bioethics which sparked controversy due to a more ﬂexible approach stated that “where it is not appropriate to offer a universal standard of care, the minimum standard of care that should be offered is the best available intervention as part of the national health care system” (2002). The author Ruth Macklin deemed it unacceptable to lower the ethical standards adopted in the industrialized world when sponsoring research abroad (2004). As to prove this discussion is ongoing, the latest version of the

World Medical Association Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects (2013) introduced the phrase “less effective than the best proven” on placebo, which appears to tolerate double standards in medical research in low-resource countries.

According to the Council for International Organizations of Medical Sciences (CIOMS) International Ethical Guidelines for Biomedical Research Involving Human Subjects (2002), the principle of justice requires that “Differences in distribution of burdens and beneﬁts are justiﬁable only if they are based on morally relevant distinctions between persons; one such distinction is vulnerability.” In addition, sponsors or researchers should not act in such a way that worsens unjust conditions or creates new inequities. It thus stands to reason that those who undertake the burdens of research – particular individuals, groups, or communities – be likely to share its beneﬁts.

Intergenerational Justice

When considering the issue of social justice and the claims that are made on limited resources from an historical perspective, the concept of “generation” must be considered. The term is ambiguous: it can relate to a timespan that covers a signiﬁcant phase of life such as childhood, adulthood/employment, and old age/retirement; or it can signify a generalized look at a population of the same age cohort at a given moment – the postwar generation, the “boomers,” and the “millennials.” Initially brought up by political philosophy, the problem of intergenerational justice has become a cornerstone of the bioethical discourse. It is closely related with sustainability – environmental, social, and economic.

But why do the present bearers of rights – and existing agents of moral discourse – stand under any duties regarding the distribution of beneﬁts and burdens between generations? Should they be bound to policies which were morally contracted in the past and shoulder the burden of caring for a much larger and increasingly aging population? In the face of uncertain consequences, should the access to the advances in the ﬁelds of biology, medicine, or health-care and novel technologies be limited to an equitable vision of a “sustainable medicine,” as proposed by Daniel Callahan, and if so, to which extent? How do we reconcile being just to present people with fairness to future generations?

Individuals are born into a preexisting social context that is expected to continue for generations to come. Within families, relationships between generations are especially clear, and their members are generally predisposed to make substantial transfers of many orders. The societal model, as well as most of the rules and institutions enacted within politically organized communities, is the result of past commitments and will in turn be sustained or redesigned, on which outcome future generations may even depend for its very existence. There is a noticeable asymmetry in power between past, present, and future (existing/nonexisting) generations. Not only can the present generation choose not to pursue those goals taken up by their predecessors, or inﬂuence the actions of future individuals by affecting the circumstances in which they are born, certain decisions can result, whether directly or indirectly, in the termination of life altogether. In fact, the present lack of knowledge about the future stands in the way of accurately evaluating the relevant long-term consequences of alternative decisions.

A broad conception of justice can be viewed as both synchronic, between contemporary agents, and diachronic, thus opposing existing to future populations. Rawls refers to the duties that citizens owe to their descendants, the “just savings principle,” as an aspect of “justice as fairness,” considering an original position in which all generations are represented. In any case, “an excessive rate of saving must on balance mitigate the burden of those bearing this hardship.” (1999: 267). There is also ongoing discussion about how far into the future the present generation’s obligations should extend and even whether it is possible to determine which needs and interests will be most prominent. The understanding of a continuum in the concept of community may be the key to justify the existence of duties and entitlements between noncontemporaries. In fact, the present individuals’ existence and identity are closely linked to that of their predecessors. Past injuries have lasting signiﬁcance, namely, to the descendants of the direct victims, as sadly portrayed by the Tuskegee Syphilis Experiment, a notorious clinical study conducted between 1932 and 1972 by the US Public Health Service to study the natural progression of untreated syphilis in rural African-American men in Alabama that has become the embodiment for unethical medical experimentation.

Presently, people have long-lasting interests, projects, and aspirations. The desire for the welfare of their children, of their community, and the continuity of their ideals plays a central role in present decisions. The notion that the present generation has an obligation toward future generations cannot be funded on a strict rights-based approach but on the ethical understanding of seeing each individual as a member of a trans-generational community in which equal opportunities must be recognized. The Convention on Human Rights and Biomedicine points to a level of intergenerational equity, by “Afﬁrming that progress in biology and medicine should be used for the beneﬁt of present and future generations.”

Conclusion

Currently, in many bioethical areas – which span from the environment to clinical research or health-care choices and resource allocation – a debate takes place against the backdrop of limited means and demographic change, aiming at a present order of society while also bearing in mind the welfare of the future generations. A just “supply” of health in the face of individual “demands” for treatment, along with society’s expectations, is a complex balance to attain in a context of scarce resources, even more so when new biomedical research spans the globe or medicines are developed by pharmaceutical companies with the promise of medical beneﬁt, but at a very high ﬁnancial cost.

Concrete expectations are discussed and negotiated within moral communities and nations and, through the weaving fabric of commitment, certain priorities are ranked higher, others are left out. Diverse health-care systems are testimony to the choices made by different free men and women. In light of these multiple challenges, perhaps the various models of justice in the distribution of resources should be considered together, whenever possible, in the search for a satisfactory response to various concerns, having the dignity of every human being in mind at all times. In this context, all are expected to foresee and justify the implications of long-term outcomes of their present decisions and are responsible for delivering the conditions that may in the future be constitutive of the pursuit of happiness in just institutions.

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