07 October 2008

Aristotle on rule of law

Aristotle, Politics

From the Perseus Project: http://www.perseus.tufts.edu/cgi-bin/ptext?lookup=Aristot.+Pol.+3.1287a

[1287a][1] Our discussion has now reached the case of the king who acts in all matters according to his own will, and we must examine this type of royalty. For the so-called constitutional monarchy, as we said, is not a special kind of constitution (since it is possible for a life-long generalship to exist under all constitutions, for example under a democracy and an aristocracy, and many people make one man sovereign over the administration, for instance there is a government of this sort in Epidamnus, and also at Opus to a certain smaller extent); but we have now to discuss what is called Absolute Monarchy, which is the monarchy under which the king governs all men according to his own will. Some people think that it is entirely contrary to nature for one person to be sovereign over all the citizens where the state consists of men who are alike; for necessarily persons alike in nature must in accordance with nature have the same principle of justice and the same value, so that inasmuch as for persons who are unequal to have an equal amount of food or clothing is harmful for their bodies, the same is the case also in regard to honors; similarly therefore it is wrong for those who are equal to have inequality, owing to which it is just for no one person to govern or be governed more than another, and therefore for everybody to govern and be governed alike in turn. And this constitutes law for regulation is law. Therefore it is preferable for the law to rule rather than any one of the citizens, [20] and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them; for there must be some government, but it is clearly not just, men say, for one person to be governor when all the citizens are alike. It may be objected that any case which the law appears to be unable to define, a human being also would be unable to decide. But the law first specially educates the magistrates for the purpose and then commissions them to decide and administer the matters that it leaves over ‘according to the best of their judgement,’ and furthermore it allows them to introduce for themselves any amendment that experience leads them to think better than the established code. He therefore that recommends that the law shall govern seems to recommend that God and reason alone shall govern, but he that would have man govern adds a wild animal also; for appetite is like a wild animal, and also passion warps the rule even of the best men. Therefore the law is wisdom without desire. And there seems to be no truth in the analogy which argues from the arts that it is a bad thing to doctor oneself by book, but preferable to employ the experts in the arts. For they never act contrary to principle from motives of friendship, but earn their fee when (for instance) they have cured their patients, whereas holders of political office usually do many things out of spite and to win favor; since when people suspect even the physicians of being in the confidence of their enemies and of trying to make away with them for gain, in that case they would sooner look up the treatment in the books.

Read more ...

29 September 2008

The constitution as a black box

John Lunstroth

“There go the people. I must follow them, for I am their leader.”
(attributed to both Benjamin Disraeli and Alexander Ledru-Rollin.)

Noah Feldman addresses an important topic in the NY Times Magazine, the management of international law by the Supreme Court. It is an immensely complicated subject. His piece is welcome because it more or less identifies the problem, but his characterization of it lacks the proper proportions, and omits fundamental aspects of the context in which the narrow problems he identifies are occurring. Since international law is indeed a different kind of legal beast, and it is famously misunderstood by many lawyers and judges, descriptions of it provide the opportunity to see the Constitution and our Constitutional order from a slightly different point of view. I have two comments: 

1.                  In describing what the Supreme Court does, Feldman says: 

Although they differ deeply about what the Constitution teaches, the two sides share a common image of what the Constitution is. Both imagine it to be a blueprint offering a coherent worldview that will allow us to reach the best results most of the time. According to this shared assumption, the way to find the real or the true Constitution is to identify the core values that the document and the precedents stand for, and to use these as principles to interpret the Constitution correctly. 

…. Deciding what deep principles emerge from our history can help resolve even problems unimagined by the framers, … 

But when we are talking about the basic direction the country needs to face in order to achieve its goals in the modern world, deriving principles from history is often inadequate to dictate outcomes. … 

For this reason, when the world has changed drastically, the Constitution has always had the flexibility to change along with it. … 

On each occasion that the Supreme Court has had to confront such drastically changed circumstances, it has adopted the approach of seeing constitutional government as an ongoing experiment. …Justice Robert Jackson … admitted frankly that nothing in the document, the case law or the scholars’ writings got him any closer to an answer. Then he tried to come up with his own rules, … 

Looking at today’s problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring answer to which way the Constitution should be oriented, inward or outward. … 

… the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own. … 

… The reason for this is straightforward: the court is in charge of interpreting the Constitution … 

Strictly speaking the judges cannot interpret the constitution, since by definition the cases it takes are ones the Constitution does not address. By Constitution is meant not only the document, but the stream of cases decided in its name, taken together with legislative and executive acts that also define the contours of constitutional law. Feldman notes this, and although his reference to the Courts reliance on social circumstances, values and opinion is weak, he notes that too. At the end of the day what is left in the word “Constitution” is not much from which we can predict what the Court will find in it. The job of the Court is to look long and hard at society and interpret society, not the Constitution. In this sense we are in good company if we say that political society is the constitution. That is what Aristotle said. A constitution is the unspoken, natural agreements and arrangements that provide national identity and justice for a group of people, and of necessity it exists prior to the document, otherwise the document could not be written. That gives us two likely referents when the Constitution is invoked. The first is a social, economic and political history contained in a literary tradition called the Constitution. The second is the peoples, the nation. In either case, the word Constitution is a black box that contains opinions and many other things, including the words and norms of a 220 year old document. The Court when it issues opinions is giving the final word on contemporary constitutional values. It expresses these values in its real time reflexive interaction with society and the polity. It cannot be interpreting the Constitution (except as the peoples), rather it is describing it, discovering it, as it inteprets society and the polity. 

2.         Professor Feldman is right to identify the relationship between the constitutional and international orders as one of the utmost importance. But one hears in his description of the international order the voice of someone who is not an international lawyer. He refers blithely to the EU as though it is an example of a no-brainer when it comes to development of a regional political order. He does not mention the relevant and interesting fact that the US Constitution can easily be read as a treaty between the states creating a federation, a form of government and treaty that dates to antiquity. 

What I think is most lacking is a sense of the immediacy and power of the international order. All constitutional orders are facing the same thing, something often identified as globalization. Globalization means lots of things, but if we interpret it to refer to the growth of a true international polity, whether we agree with its oligarchic form of government or not, we are close to its import. We are witnessing the formation of an international constitution that is, or will be, creating a world or global federation. 

The Federalist Society and its ilk take the position we can take or leave IL. They generalize from weaknesses and contradictions in the law of war to the entire body of IL. What they ignore are the some 14,000 treaties without which our economy, society and polity could not exist. Of course we abide by IL, and we do it 24/7/365. That includes private and public law. And, now the immediacy and importance of IL has never been stronger, as Feldman notes. 

I think the driving force is the increase in population. From about 1970 the world’s population doubled, from about 3.4 billion to the current 6.5 billion more or less. That growth is the equivalent to the addition to the planet of about 1 city per week with a population of 1,000,000. A moderate projection shows it doubling again by 2050. Arguably globalization arose in response to the resource needs of all the new people. The growth is staggering. 

Its implications for constitutionalism are profound. We are naturally moving towards an international federation, not because of the desire of any individuals or states, but because it is the natural outcome of so many people living together. Sovereign boundaries and powers will begin to look more and more like administrative regions, and the move to a planetary federalism (in 20 – 40 years) will not be as unnatural as it seems today. Sovereignty has as one of its main functions the creation and maintenance of systems of private property and control of resources. But the additional people will be putting such strain on existing systems they will be forced to change to accommodate them, since the idea of justice, from which flows the idea of private property, has as a more fundamental feature the idea of fairness. The structures for global federalism are in place now, but the systems of justice are not yet adequate inasmuch as the existing sovereign powers are used by global corporate entities to maintain an extremely unfair form of resource distribution. 19th century forms (names and categories) of international existence and powers are no longer adequate to manifest political justice on the required scale. 

In any event, Feldman’s image of the relationship between the Constitution and the international order is still somewhat entranced by the increasingly empty powers of sovereignty. What disturbs the conservatives is their correct observation or intuition that the system of private property on which they have gotten fat will change; and what is disturbing about the liberal openness to the international order is that it seems blind to the rapaciousness and raw power of the international corporate entity in today’s international order. So Feldman is right, that the Supreme Court will be making policy; but it will be policy that ultimately guides (or follows) the US in the surrender of some of its Constitutional sovereignty in the same way our colonial states surrendered their sovereignty to the US federal state. The black box of Constitutional “interpretation” with regard to the international order contains the history and pull of the future.


Read more ...

05 September 2008

The global war on terror and [health] fraud

John Lunstroth

case has just been decided that will be of interest to lawyers and risk managers who represent clients (including within research enterprise) that can be accused of health or other fraud against the government.  Thanks to Robert Chesney of the [nationalsecuritylaw] listserv for the heads up. 

The case, filed in 2006, arose from sales of substandard concrete in the 1990s for use in the Big Dig (Boston highway infrastructure). The defendants asserted the statute of limitations as a defense. The government responded by arguing the statute of limitations for fraud against the US government was tolled (suspended) during the wars authorized by Congress in 2001. The Court said: 

Defendants contend that the acts of highway project fraud and mail fraud alleged to have been committed prior to May 3, 2001 (eighty-five counts in total), are barred by the five-year federal statute of limitations. The government, for its part, maintains that these counts are saved by the Wartime Suspension of Limitations Act (Suspension Act), 18 U.S.C. § 3287. The government argues that the Suspension Act tolled the running of the statute of limitations as of September 18, 2001, the date on which Congress authorized the use of military force against the Taliban government of Afghanistan; or alternatively, as of October 10, 2002, the date of the authorization of the use of military force in Iraq. The Suspension Act provides (with appropriate emphasis) as follows: 

When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress. 

The Court held that the: 

[Authorization for Use of Military Force], which authorized the Afghanistan War, tolls the limitations period from September 18, 2001, to December 22, 2004. The Iraq War Authorization tolls the limitations period from October 10, 2002, to May 1, 2006. The court therefore will deem the Suspension Act to toll the limitations period for defendants’ alleged offenses from September 18, 2001, to May 1, 2006. 

That the transactions were unrelated to the war is irrelevant. The Court also said, in a footnote, that the “global war on terror” is not properly a war: 

At the hearing on the motion, there was also discussion of a global “war” on terrorism, waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The ‘War on Terror’ in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not understand the government to be pressing the argument that the United States is “at war” with al Qaeda, at least in any traditional legal sense. 

The relevance is obvious. The statute of limitations for any claims for health care or other fraud were suspended for about five years based strictly on the Court’s determination, without administration input, of when the war ended. (The Court recognized that in matters of war the judiciary typically defers to the administration.) But not only is this Court’s finding not widely binding, its calculation of when hostilities ended is buttressed with facts and argument that extend far past its dates of wars’ end. The Court recognized, for example, that the underlying reason for the Suspension Act is that during a state of war the government’s resources are strained by the war budget and therefore it cannot prosecute as many cases. In addition to recent estimates of the cost of the “wars” that project well into the future, the Court refers to post-9/11 prosecutions of white-collar crime as evidence the Government was unable to prosecute as many cases because of the “wars.” 

Since the fall of 2001, the FBI has referred more than 7,000 terrorism cases to DOJ. Over 2,000 of these cases have resulted in prosecutions. At the same time, the overall number of criminal prosecutions credited to the FBI has dropped by more than 30 percent (from 19,000 to 12,700 cases). The sharpest declines have been in the prosecution of white-collar and organized crime. While the government has not offered any evidence that the [Big Dig] investigation was directly affected by this shift in resources, it is not required to do so. The Suspension Act requires only that the government show that the United States is at war, and that the government’s ability to investigate and prosecute pecuniary frauds has been hampered as a result. 

The foregoing reasoning supports the argument that the wars did not end. As this is being written the Bush administration is seeking confirmation from Congress that there is an ongoing war against Al Qaeda. If the administration is successful it will potentially suspend the statute of limitations for all allegations of offenses against the government in which the government asserts “the element of deceit that is the earmark of fraud.”

Read more ...

23 July 2008

An Aristotelian revival?

John Lunstroth

The increasing popularity of capabilities approach, associated with Sen and Nussbaum, signals a revival of Aristotelianism in the public sphere. I argued in an earlier post this revival has profound implications for “the life sciences.” It also has significant implications for political theory inasmuch as it provides a non-theological basis for thinking of social identity. I am led to make this political statement by a paper by Paulina Ochoa Espejo in which she argues it is not necessary to look to theology for theoretical underpinnings of the state. She is right, but not exactly for the reasons she articulates. There is no question our modern form of corporate sovereign organization has an intimate ideological and temporal relationship with the church (e.g. Berman, Tierney) but in a sense that relationship is accidental, not necessary. Aristotle had already laid the conceptual groundwork on which the church erected its ideology. When the state separated from the church it was on Aristotle’s mostly secular foundation. That foundation serves well as the basis for universal systems of justice such as human rights. 

The capabilities approach (CA) people – Finnis, Sen and Nussbaum – quite clearly identify their idea of capabilities with human rights. There are obvious differences in form, but I think their argument(s) that the reasonable theory of human rights is the CA is very hard to dispute. One may argue human rights are grounded in Christian moral theory, but the architects of the UN system and the International Bill of Human Rights were conscious of the dangers of religiosity and made a powerful effort to be secular. Human rights does not work as a concept unless it is fundamentally secular.

The revival I point to is related to the revival of Aristotelian ethical theory; but, as I said, it is being articulated by people who have significant impact in the political realm, and it is a political revival. The Aristotelian ethics revival (e.g., Anscombe, MacIntyre) plays a role, but the purely ethical investigations are often mixed up with Aquinas. Finnis is not secular, but the theory he articulates in Natural Law, Natural Rights is. I think to speak of Aristotle’s ethics without including his biology and politics, at a minimum, is to miss an important element of his theory of human (and animal) identity. Human identity is political, and its potential is inherent in its biology. The linking of the two deterministic elements (biology and politics) with the individual capacity to make decisions is the ethics. The CA reflects the broader holistic image of the Aristotelian vision.

In my research for this in-depth blog posting, I googled “capabilities approach” (44,900 hits); “human rights approach” (66,700 hits); and “Aristotelian revival” (863 hits).

[end of post]

Read more ...

13 July 2008

Heller, guns and Mexico

John Lunstroth

In the NYT's magazine article on narco-violence in Mexico today, the point is made that the narcos buy their guns in the open market for guns in the United States, and then ship them across the border for use against the Mexican state. There is clearly an international issue raised by this situation that apparently was neither briefed by amici as far as I can tell nor addressed in the opinion. Do or should other states or entities with standing at the international level have a justiciable interest in the ruling? Is it a breach of the human rights obligations of the US? Of course, keep in mind that the "top five countries profiting from the arms trade are the five permanent members of the United Nations Security Council: the USA, UK, France, Russia, and China." They refuse to enter into treaties limiting arms sales.

[second part of post here - for full post page]

Read more ...

29 June 2008

Politics and theory of biology - part 1

John Lunstroth

[Summary of this set of posts] A key principle, or natural feature, of political order (theory) is the recognition that individuals and groups of various kinds have the capacity to choose. They have free will, intention, purpose, goals, responsibility, duties, liberty and so on. A key theoretical feature of science, reflected in evolutionary theories of biology, is that nature (including all life) is the result of random processes, it lacks purpose. Is it reasonable to assume (or conclude) there is no such thing as purposive behavior? Contemporary economic, political and legal theorists, such as John Finnis, Amartya Sen, and Martha Nussbaum, grounded in the human rights ethos that was realized after WW2, are reviving the purposive theory of Aristotle’s biology in a secular context. I will be arguing in the rest of this thread that the political world is of greater importance to living things than the world of science because “man is a political animal.” Whereas science is about how we know and manipulate the world, politics is a feature of human identity. Therefore the theory of biology implied by and required for politics is more complete than that found in science and should have epistemological priority over it. Given that, “biology” as such is too limited of a category; rather, per Aristotle, biology, ethics and politics must be considered as the main component areas of the relevant category. I use the word “politic” and its derivatives as the superseding, categorical term that that most accurately refers to the world of living things. I assimilate scientific biology into political theory, and in the case of metaphysical disagreements reason political theory has priority. The disciplinary adjustment to a more comprehensive theory [of biology] has immediate implications in medical and legal education; in the ethics of scientific experimentation with living things; in theory of medicine and law; in understanding some of the conundrums of public health ethics related to the ideas of community and social determinants; in political and moral theory; in human rights and health; and so on.[end of summary].

It is self-evident that purposive behavior is a feature of human and other animal existence. It is widely institutionalized and assumed in all cultures. It is the basis of all social structures. There is no political philosophy, or human rights, without the assumption that human beings engage in purposive acts, that they have and can act on intention and responsibility. It is the basis of theories of justice, the laws, and so on. Let us assume for the sake of this argument that human beings engage in intentional acts.

Given that, then there is an epistemological conflict in the academy that runs very deep, not only philosophically but practically. On one side are the life sciences, including a significant part of medicine. The theory of life underlying the life sciences is based on physical determinism and as a foundational matter intentionality, responsibility, and related concepts are precluded by the theory of having anything more than illusionary existence. On the other side are the disciplines that can be gathered under the umbrella of political philosophy, including law, human rights, continental philosophy, qualitative sociology and anthropology, and so on, in which the ideas of intentionality, responsibility, etc. are so fundamental the disciplines could not exist without them. A discipline like public health encompasses both sides and thus can be thought of as having multiple personalities.

This raises some methodological questions if we are to reasonably make sense of the conflict. To begin with, are the two domains of knowledge commensurate enough to make a comparison? Can we choose to believe in evolution (a random process by which life and living forms develop) and believe in the political nature of the human being at the same time? Is this a conflict between two domains, or is it containable as one between theories of biology? Is it a scientific conflict? A philosophical conflict? A conflict between theories? A political conflict?

Let’s start with the idea it is a scientific conflict. That would mean, in essence, that politics would be reduced to science, because in order to compare the two ways of seeing the world we would have to decide science was the primary language, and assume for the sake of the argument science is the most reliable, best way to know something about the natural world. And, of course, we have no problem with the idea politics is a feature of the natural world. In this reading politics, and intentional, can be best explained and described as matters if not fully understood, fully understandable as science.

The big problem with the scientific perspective is that science, as a descriptive language of nature, has no facility to address the observation of purpose. It simply denies a priori that purpose is a feature of nature. It assigns observations of purpose into a few epistemological categories, e.g., purpose is an illusion; purpose is a useful construction based on an illusion; purpose is an epiphenomena of biochemical events that themselves have no purpose, an emergent property; and so on. Purpose is, to use a phrase from Marx’s science, “false consciousness.” It is a comforting and perhaps necessary illusion, but an illusion nonetheless.

The foregoing scientific position is of fundamental importance to our subject because it underwrites, with tremendous social authority, the extension of its metaphysics into all other disciplines and domains. It is important to keep in mind science has co-opted philosophical ontology to a significant degree, and epistemology to a lesser degree.

The argument can be summarized as follows. We, scientists, have the best tools for understanding and describing nature. Our tools lead us to theorize there is no such thing as purpose. Therefore we do not recognize purpose and it must not exist. If you see something that looks like purpose, since it cannot exist, it is an illusion.

Why would the tools of science lead scientists (biology theorists) to conclude there is no such thing as purpose? In short, because Aristotle’s more or less secular biology was assimilated by the Church and when the early modern philosophers of science teased apart nature from the Church, they left the baby in the bath water, so to speak. Explaining in detail exactly what that means is beyond the scope of a blog post, but the general meaning can be communicated.

In the 16th and 17th centuries, as our contemporary ideas about science were being formed, philosophers of science argued that purpose was not properly the concern of those who were investigating nature. There are many assumptions buried in this conceit, chief among which is that the idea of purpose is not part of the natural world. This particular mistake was entered into because of the looming historical presence of the Church and God in intellectual life of the time. Since scientists studied nature, and nature and God were separate (courtesy of the Church), and purpose was supplied by God, therefore the study of nature did not include the study of purpose. This set of arguments had at its core Aristotle’s analysis of causation, and at the time did not extend to theory of biology, chiefly because that had yet to precipitate from philosophy as a separate discipline.

Aristotle described four causes or explanatory principles. These are well known and much discussed or dismissed: material, efficient, formal and final causes. Discussions about cause are attempts to describe principles of change. That change occurs is irrefutable and self-evident. Change in inanimate things is much easier to describe and explain than change in living things. Change in inanimate things is more or less readily (but incompletely when a living thing is in the causal chain) describable in terms of material and efficient causation. Material causation is that related to the matter that is undergoing the change; and efficient causation is related to the agent acting on the matter to change it and/or to the principles that guide the action of the agent. A sculpture is made of marble, its material cause. It is sculpted by the sculptor (according to the principles of sculpting), its efficient cause. Or, moisture in the air precipitates around a mote of dust and becomes a rain drop. The material cause is water, and the efficient cause is the mote of dust in the cloud, with wind, and other appropriate conditions, all of which constitute the efficient cause of the change in state of the water from an indistinct cloud of vapor into a distinct drop of water.

What the founders of the empirical tradition, such as Frances Bacon, did, was to restrict descriptions and explanations of causation in nature to efficient (and perhaps material) causation. Hume later solidified this outlook.

There was a problem though, and that problem has yet to adequately addressed. It is virtually impossible to describe animate things with any kind of accuracy without using the concepts of formal and final causation. I am now getting into an immensely complicated subject. It is historically complicated because of the influence of the church as the fundament out of which, or from which, science distinguished itself; it is philosophically complicated because it directly invokes fundamental epistemological and ontological questions; and it is culturally and rhetorically complicated because of such things as the “culture wars,” the association of criticism of evolution with Christian ideology, and the other topics that are well addressed in the sociology of science, including the fact scientists resist being convinced by reason and empirical data of things they do not believe in. A formal cause is that which the changed thing becomes; and a final cause the purpose, end or reason for the coming into being of the new thing, or the development of the living thing. It is that-for-the-sake-of-which. Although a cause need not have intention to be either formal or final, when intention is present it is clearly an example of, or demonstration of, final causation and in some cases formal causation.

There is a complex relationship between formal and final causation. In thinking about living things such as plants, in which intention is not much of an issue, formal and final causation are more or less completely overlapping. It is hard to separate the two. Likewise with law, with an important exception. The same law-as-statute acts both as formal and final cause; that is, the law determines what state of affairs shall (or should) develop, and it embodies a non-exclusive reason for-the-sake-of-which that state of affairs should come into being. However, one must recognize two kinds of law when considering law as formal or final cause. When thinking of “the laws of nature,” such as gravity, relativity, etc., then it appears final cause is collapsed into formal cause. But, when thinking of “natural law” the opposite condition holds. Formal cause collapses into final cause, since the central that-for-the-sake-of-which of all laws (natural, international, customary, constitutional, legislative) is the social and moral order, the common good. When considered as a whole, the laws embody a system of justice, which, for any political community, is the [pre-existing] form or constitution of the common good (and identity). With regard to a human life, one can discern a distinction. The formal cause of a human life is the mature adult, in which all the faculties or capacities are developed and the potential to flourish is complete. But what is the purpose of a human life? For a life such as that of a Supreme Court justice, who determines basic laws well into the twilight of physical existence, the purpose can be thought of as being indeterminable until the end of the life (or perhaps of the major social role of that life). In any event, the relationship between formal and final causation can be stated as a theoretical matter, but teasing apart the distinction in living things can be difficult.

Given that the only legitimate object of science (empiricism) is the physical world, and because formal and final causation are not permissible scientific concepts, then purpose and the world of ends are not proper objects of science. Since the only thing that exists is physical matter (God, consciousness, mental and other non-corporeal entities have no independent existent), and since efficient causation is unidirectional (except in the quantum world), then the world is determined by physical conditions. That is why evolution must be framed as being without purpose, the result of random events. These key features of the metaphysics of science result in or can be summarized as a material or physical determinism.

There are, in this narrative, two elements I want to highlight. First, the limitation on the idea of the kinds of things or matter that can be said to really exist; and two, the limited idea of causation.

Remember why all of this is important. The limitation of the idea of causation, considered in the context in which the limitation was developed, limits the objects of science [as I defined it in another post]. In turn the theory of biology is conceptually limited. In other words, a series or chain of constraints can be traced to the limitations on the definition of science imposed by early theorists of empiricism, and these constraints directly affect the theory or philosophy of biology or human (animal) nature. The theory of the human directly impacts theory and practice of [scientific] medicine, ethics, human rights, and politics.

In this subsection the general question we are considering [politics and theory of biology] is whether viewing the conflict surrounding the idea of purpose as strictly a scientific matter is justified or reasonable. Since the ontology of science, and its theory of causation, preclude the possibility of purpose, it does not seem reasonable. If we seek to consider dignity as a concept with full epistemological and ontological status, as something that exists in its own right and that can be directly and reliably known, then we cannot use science.


The relationship between science and final cause is not quite as simple as I portrayed it above, although that position is widely held. Consider the following paragraph from the Encyclopedia of Philosophy entry on causation, written by Richard Taylor for the 1967 edition, after a short introductory section on “Aristotle’s Four Causes.”

Partly because of the rise of physical science and the accompanying demise of Aristotelian modes of thought, the concept of cause is now generally that of an efficient cause or, more specifically what Mill called as “physical” cause. The remainder of this discussion [90%] will, accordingly, be devoted to this concept.
The concept of final causation can hardly be said to be retired in orthodox science.

A law of nature, such as “the law of gravity,” explains in advance how certain things will happen, given a certain set of initial conditions. I touch on this above, noting that it is practically impossible to describe living things without resort to teleological language that implies notions of formal and final causation. In fact, the theory of biology (life) held out as “fact” and ascribed to by most scientists, evolution, is deeply teleological. Darwin (1859), who articulated a theory of life that, as amended, does not, or is not supposed to, require purpose. But with little thought it is easy to see neo-Darwinism is deeply teleological, if not essentialist. Natural selection and adaptation, the two driving forces of evolution, occur for-the-sake-of reproductive success and survival. Is this not the “force that through the green fuse drives the flower?” Although teleological language is endemic in academic biology writing, it is dismissed by randomists as short-hand or sloppiness. The problem is so deep and structural though, such simple dismissals are hardly convincing, much less do they meet the standards of empiricism held by the randomists. It is impossible to talk about living things without using it. This is a reflection of the general problem discussed in this set of posts. Mathematical formulas, to the extent they accurately reflect physical processes, fall into the category of final causes.

[Because philosophers do philosophy, even if they cannot see into deeper waters, I want to note that just because a law (or mathematical formula) can be described, and the law works reliably to make predictions, philosophers do not agree on its ontological status. This is especially complicated for physicalists or materialists because 1) physical creation is supposed to exist solely as the result of random events; 2) the physical world, which is supposed to be all and only what exists, does not readily provide a substance in which the laws can be said to exist; and 3) given the mysterious nature of the existence of a law, how could such a thing have an effect on the material world, especially 4) since essences are in principle impossible.]

For example, here is an excerpt from a lecture on Aristotle’s explanatory principles that I found online. References to Aristotle’s texts are in the lecture notes.
1. To say that there are ends (telĂȘ) in nature is not to say that nature has a purpose. Aristotle is not seeking some one answer to a question like “What is the purpose of nature?” Rather, he is seeking a single kind of explanation of the characteristics and behavior of natural objects. That is, plants and animals develop and reproduce in regular ways, the processes involved (even where not consciously aimed at or deliberated about) are all toward certain

2. There is much that can be said in opposition to such a view. But at least it is not ridiculous, as is sometimes supposed. In so far as functional explanation still figures in biology, there is a residue of Aristotelian teleology in biology. And it has yet to be shown that biology can get along without teleological notions. The notions of function, and what something is for, are still employed in describing at least some of nature.
A couple of final observations that will carry over into the political analysis. The ontological problem with final cause is centered on the idea that the form, the end (telos), pre-exists the development of the matter into the form. Thus, Aristotle says the constitution of a polis exists before it is written down, that the writing of the constitution is the reflection onto paper of the internal cohesive principles of the political community that came into being naturally (for the common good). For example, think of the idea of the French constitution. This way of thinking presents immense explanatory problems for a system that only recognizes efficient causation and physical matter (substance) that can be quantified. It was historically rejected by the foundational science theorists, not because it was not useful, but because the only explanation it was associated was religious. The dispute between the creationists and the scientists dates into the late middle ages.

Contemporary economic, political and legal theorists, such as Amartya Sen, Martha Nussbaum, and John Finis, grounded in the secular doctrine of human rights realized in the International Bill of Human Rights, are reviving Aristotle’s biology in a secular context. I will be arguing in the rest of this thread that because the political world is of greater importance to living things than the world of science, the theory of biology implied and required for politics is more important than the theory of biology used by the scientists.

Read more ...

05 June 2008

What is science?

John Lunstroth

Is science an historical concept? A philosophical concept? An ahistorical concept having to do with laws of some kind? A sociological or anthropological concept? A political or economic concept? A concept centered on method? Does it include the social sciences and the humanities?

It seems fairly clear that only philosophers of science know what science really is; that only sociologists of science have the competence to tell us how to identify one in the street (so to speak); that historians of science can best describe its development; that political and legal thinkers can best say how to use technology and the ideology of science as aides to governance and the administration of justice; and those wanting to be scientists only have recourse to communities that self-identify as scientists, but none of which have warrant to make claims about science as such.

Science, then, is a philosophical object. It tried to absorb the light of its parent discipline, but that has been a failure. Science, as philosophy, is still a subdiscipline of philosophy, located mostly in philosophy departments. Philosophy departments are not part of science departments.

Science has at least one major fault-line. It purports to have two classes of objects: living things and non-living things. But laws about non-living things are categorically different than laws about living things. Laws about non-living things are generally necessary; but laws about living things are only usual. Various fictions have been developed to fit living things to the laws governing non-living things
As someone concerned with legal/moral/political theory, one of those fictions seems particularly preposterous; to wit, that livings are machines of some kind. That fiction is pernicious and undercuts a clear description and explanation of living things, especially individual political life (i.e., the moral order). It denies responsibility, choice, intention, rights, duties, political acts, and all the other related concepts on which social and political order is based.

As an historical matter the fiction prevails even as it allows concepts that it cannot properly incorporate, such as teleonomy, the Trojan horse of Aristotelian theory.

The subject matter of this list sometimes confuses me because I read history to have normative content. Is it fair game to question how we should think of science [as philosophy] now based on one or more historical [of philosophy] narratives? There also seems to be a much stronger emphasis on the non-life sciences, which makes sense, since the philosophy of the life sciences is much more contested. How can there be a history of something that is not well-defined? Rather, is history done to define current use of words?

As a historical matter science rejected morals and non-mechanical explanations of life. But in the legal/moral/political realm there is a tremendous need to have an orderly and authoritative theory by which policy makers can impose morality on science. The social institution of science fights this vigorously, but with the technologies of genetics and neuroscience, and the widespread unethical behavior of the pharmaceutical companies and other beneficiaries of government science funding, it makes some sense to reevaluate the basis on which science rejects morality as part of the goal to find a way forward – to both protect society from science-as-technology/ideology, and to perhaps [re-]open some philosophical vistas.

I have been looking at the problem as one of law; as one of legal theory. The historical warrant for this is in the claim science (as we know it) arose out of the efforts of lawyers to assimilate and use Roman law as the secular state precipitated from the church in the post-Gratian middle ages. See e.g., Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition 120-164, esp 151 (1983). The philosophical warrant can be found in natural law theory and its emphasis on i) self-evident facts about living things and ii) the primacy of practical reason, both of which revolve around the idea of right. See e.g., John Finnis, Natural Law and Natural Right (1982); Martha Nussbaum, Frontiers of Justice (2006). Natural law theory is an expression of, or assumes, a theory of biology, a theory of the life sciences. Therefore, although the concern is with observations of, and methods of discerning reliable, law-like information about nature, it is not with inanimate nature. It is concerned not with the realm of the necessary, but of the usual.

Statistics is a marker of laws about the usual, but statistics is also found in laws of the inanimate and mechanical, the necessary. Although statistics is used to describe the inanimate, it is within the context of the necessary laws related to the “visible” non-quantum world, of which there are many as evidenced by technology. The necessity bounding living things is so radically different than that bounding inanimate things that it is reasonable to conclude there is little relationship between the two types of systems of “laws of nature.” The absolutely certain things we know about living things can be summarized in a few words. It is necessary for *all* living things that they come into existence from the natural processes of other living things; during the period of their existence they are not subject to some of the laws of the inanimate such as entropy; and in time their constituent parts return to being subject only to the laws of the inanimate. At the beginning of every living thing is another living thing, and at the end of every living thing is the inanimate. Everything else about living things is in the realm of the “usual,” expressible in a bell curve. Life is a unique organizing principle, and the things that are so organized are called living things.

Since the genus of science is philosophy; since philosophy has as one of its fundamental principles that humans can reason and engage in intentional behavior (else no philosophy); since the species must have the characteristic of the genus; then a theory that purports to be science that denies human reason and intentionality must not be science.

The idea of right arises because it can be said of living things that they live better under certain circumstances. That holds true in the biochemical, the individual and the political realms. What is right is determined by the use of reason. More particularly, it is determined by practical or prudential reasons grounded in the descriptive discipline, some of which reasons are protected by social or political convention. The protected reasons define methods of determining public knowledge and its reliability.

What I am examining is whether each statement made in or as a result of the protected reasons that lead to public knowledge is a moral statement because it has as its subject living things and the usual. All statements made within and by the life sciences would be moral statements subject to the right of the higher levels of organization, the individual and the political. What is right in science must also be right in the moral/legal/political realmsmade within the realm of epistemology. Instead of epistemology having pushed the moral from the lab, in fact the lab is built from moral principles.

Read more ...

03 June 2008

The Role of Flaw

John Lunstroth

I received notice of a paper yesterday from SSRN that has a humorous title, The Rule of Flaw, and is about biology and law. I thought it might be pertinent, but the author is unclear on so many concepts he uses that although he may be making an interesting point, his work needs serious comment and editing before it would be useful as a reference. It is useful though, inasmuch as it illustrates some of the difficulties in making sense of the material I will be addressing from time to time. The problems, at least the ones I will address, are clearest at the metaphysical level: what objects [e.g., science, health, the individual, the community, the polis, morals, laws] exist? how do they exist? how do we know and talk about them [e.g., science, law, politics, sociology]? what kinds of causality [biochemical determinism, individual responsibility, social determinism] are at play? what does it mean to say about something that it is alive? does life necessarily imply a set of values? what is the relationship between those values and law? morality? justice? what is the relationship between natural law and the laws of nature? what role does history play in the ways we understand and articulate the answers to the foregoing questions? what role do the answers and considerations to the foregoing questions play in political philosophy, and in discourse about health and the individual? The author of the article writes in the context of those questions without ever quite addressing them. Among other things, he mistakes ontological problems for epistemological ones and because of that fundamental shift has no way to recognize how history of science interacts with history of law and social order. He has no tools with which to manage the idea of science.

The paper does have a good, if mistaken, quote though:

The rule of law, in its historical genesis meant a commitment to rationality, derived from premises of human nature. The paradigm for human nature today is not God or metaphysics, but the life sciences. If law is to be rational, it must have as its foundation those principles of rationality derived from the life sciences, e.g., law must become a life science.
[end of post]

[second part of post here - for full post page]

Read more ...

On natural law and theory of biology

John Lunstroth

This is the first or second of a series of posts on how the theory or philosophy of biology links with ideas of health through theory of law. In other words, it is about human norms.

Below is John Finis’ definition of natural law. I am continuing to read about justice, and recently finished Martha Nusbaum’s Frontiers of Justice (2006). That indirectly led me to Finnis (Natural Law and Natural Rights, 1980), Joseph Raz (The Authority of Law, 1979), and rereading Brian Tierney (The Idea of Natural Rights) and Aristotle (Nicomachean Ethics). I am reading around and through Finnis, and dipping into the others as I feel inclined for other points of view or to check his references.

A note, before proceeding, on my impression of Raz. His opening essay is, on his own account, a “very abstract analysis of authority.” In and of itself it is problematic, but it is his move in the second chapter that bears comment. In the chapter on authority he argues for the idea of authority in people. He does not address the idea of role, although it is very much present, nor does he move much into the idea of social structures. He wants very much to identify something that is located in a human body. Having worked hard to make his argument, about it being something in bodies, he opens chapter 2 with a summary argument that because authority is a source of protected utterances, and the law is or issues protected utterances, the law is authority as well. This appears to be an argument by analogy, but one in which he compares the acts of an intentional biological creature with those of something institutional, the law. He did not hint in the discussion about personal authority that later he would be addressing issues of institutional authority, but perhaps he will. At this point his argument is deeply flawed by failing to address the issue of social order and social institutions; of how authority is, in the sense he wants to address, a feature of institutions, not individuals; that such authority derives from a theory of justice, not a crabbed and reductionist account of the meaning of the word “authority”. This is a nice lead-in to Finnis’ description of natural law:

There is (i) a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way nor another used by everyone who considers what to do, however unsound his conclusions; and (ii) a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that (always or in particular circumstances) are reasonable-all-things-considered (and not merely relative to a particular purpose) and acts that are unreasonable-all-things-considered, i.e., between ways of acting that are morally right or morally wrong – thus enabling one to formulate (iii) a set of moral standards. (p. 23)

It is important to have a clear idea of what natural law is for a number of reasons (if you are someone to whom ideas of morality and law [ethics] are important), and this definition serves as a useful reference point, although it is inherently limited. One of the reasons that I intend to develop in this series of posts is the relationship between a theory or philosophy of biology and political health. Since population health is a function of political health, these ideas link medicine, intention/responsibility, “public” and political health. This inquiry will or should provide a foundation for an ethics of public health, among other thing. It also provides a means to frame ethical problems of other social institutions such as the intelligence community.

Here are some points I think it is important to gather from the definition:

1. It is Aristotelian. Finnis, apparently joined by Macintyre, prefers Aquinas’ development of Aristotle as a basis for developing a neo-Aristotelian theory, but the reliance on the structure defined by A is indisputable and ultimately important as we are provided with the words of the Philosopher himself in which to search for understanding, and by which to illuminate decisions taken by Finnis in articulating his theory.

2. Nussbaum is also in this tradition, although Finnis is not referenced in her book probably because they have had at least one major pissing contest.

3. Finnis intends his definition to be an ahistorical statement, true for all time. Finnis limits his theory to humans, although Nussbaum rightly, following Aristotle, extends the theory to all living things.

4. Everything about the theory is linked to the idea of flourishing (eudaimonia). Only living things can flourish. Living things are born, take in food, develop, get sick, and die. To flourish means to live well. Flourishing, then, is the “ought” for every living thing. It is not good to do things that degrade, inhibit or otherwise interfere with flourishing; it is good to do things that promote and result in flourishing. Flourishing is The Good for or of living things.

5. That the foundation of the theory appears to be located in the individual life raises two sets of questions: (a) In a profound way the foregoing appears to be a biological theory, a theory of the organism. But why is not being propounded by scientists since biology is a science? (b) On the other hand, of what relevance is it to political theory? Flourishing appears to be about individuals, not communities.

6. This is a theory about doing things, about things that could happen in the future as a result of a decision made also in the future. It is, as are all ethical and moral inquiries, about figuring out not only the best way to make the decision, but the best decision to make. It is predictive. However, stating the problem in this fashion suggests there is a qualitative difference between the past, the present and the future, that things, situations or events are discretely bound in something called time. As we examine some of the implications of the theory this proposition will strained to the point of failure in some contexts.

7. I will look at some other theories of natural law later.

8 The issue of whether non-living things have something by which it can be said they flourish is interesting. I am not speaking of something like the Gaia Hypothesis, which is about the earth as a living organism because it clearly includes and can be measured by living things. In what sense is it meaningful to speak of a rock flourishing, for example? Humans, and perhaps other animals, are immensely interesting and perceptive, considered as a whole; therefore there are meaningful ways to approach that issue, which I will also come back to later.

Read more ...

30 May 2008

Community based participatory research - cont'd

John Lunstroth

Informed consent is a concept for an individual. But groups are recognized as more than just many individuals. They have their own identity, and the issue is how to describe a way for the group identity to consent to something. I think the concept of political health can help. The researcher must appeal to the political community for consent, not to the subject community. That implies there is a political community, which may not always be the case. If there is not, then how can consent be considered? One option is for the researchers to create a political community so it can make the kinds of decisions asked of it by the researchers. But, are researchers competent to undertake this kind of political activity? It is clear that regardless of who undertakes the political community building, the acquisition or development of a political community must not be confused with the scientific ends of the researchers. The political community, in order to be legitimate, must at least consist of value neutral ways to make community decisions. The least problematic way to accomplish the building of a political community is to have it facilitated by political workers, so there is no possibility the decision-making process is somehow influenced by the researchers.

The foregoing focus on the trees does not reveal anything about the forest of power relations. The scientific community is so ideologically, socially, institutionally, and financially powerful that subject communities may never have, on their own, the wherewithal to adequately make informed consent or its collective analogue. Well, let me correct this with a note about the misleading nature of the idea of informed consent. Informed consent is a kind of fiction we allow to stand in for real understanding. Since few subjects have scientific backgrounds, or are free from some compulsion, we have a weak standard that we say is good enough to go forward. I think especially when considered on a group basis, it is inadequate to stop any research even though in theory it is supposed to have that kind of potency. So, in most all cases researchers have access to power that subject communities will never have. At the macro-economic level few countries can withstand the commercial and scientific pressures of the drug companies. In this context it is difficult to imagine even a well-organized political community withstanding the pressure of intent researchers.

Read more ...

29 May 2008

Public health or political health?

John Lunstroth

To triangulate a meaning for public health, three "public" entities that can be said to be healthy have to be identified: 1) patients, as reflected and exemplified in the doctor patient relationship; 2) populations described by epidemiologists (orthodox public health); and 3) political collectives (states, etc.). The boundary between 2 and 3 is ambiguous, and in my opinion, the source of much difficulty in pinning down a definition of public health, since the idea of a "healthy" political collective is ancient. Is the social determinants movement a political movement?

For the purposes of this blog I assume there is a conceptual break at some point, that the "health" of the populations studied by epidemiologists is not the same "health" that is postulated by political scientists. It is not the same because it is described in different terms. Epidemiological health is related primarily to medical health, whereas political health is measured in philosophical, demographic and other measures, such as whether the population can be said to be flourishing. It is wholistic, whereas epidemiological measures are in a relevant way reductionistic. Political health is demographic, whereas public health is epidemiologic. Epidemiology is a species of demography.

There is another limitation and prioritization that is important and involves the institutional distinctions between 1 and 2. Public health is in some ways a residual category (re)created by the medical profession as it, the medical profession, assumed the mantle of its social authority. Public health became all the health related disciplines that were not profitable or glamorous in some way. That is why, at least until the bioterrorism funding explosion following 9/11, public health as an institution was perpetually underfunded and considered the poor step-sister or hand-maiden of medicine. Its chiefs were all doctors, and public health students and practitioners aspired, in some cases, to be doctor-like, to have that utopian level of social authority.

The foregoing describes some features of the institution of public health as seen in and about its schools. However, where the rubber hit the road, in the state legislatures, where public health is primarily regulated, public health looked a little different. All health matters in the legislatures, whether uni- or bicameral, were first considered in the public health committees. They have different names, but their function is the same. From a regulators perspective all regulation of health construed as a medical matter is focused through one committee. Of course, insurance, and other institutions that bear on the health economy may be dealt with primarily in other committees.

From a legal perspective Larry Gostin got it right in his book Public Health Law: Power, Duty, Restraint. Public health includes medicine, and all kinds of other policy issues that have to do with medical (including mental) health. That is, as a legal matter, the social authority of medicine is a nullity. Medicine is simply another profession to regulate, another group of lobbyists to deal with, another set of interests to consider.

Public health is a comprehensive concept that ranges from biochemical models of disease to social determinants, from doctors and other health workers to policy-makers. It is everything to do with health that is not definable as political health. Public health is part of political health, but political health includes norms with which to evaluate political structures, e.g., constitutional design (and theory); fit between the government and the constitution; human rights; international law; and other concepts.

Read more ...

Community based participatory research ethics

John Lunstroth

A prominent proponent of community based participatory research describes it as follows:

“I am struggling to pin down how community-based participatory research differs from traditional research-principled based ethics so IRB's can value what CBPR does. I am dealing with the science-humanities divide through the concept of "emancipatory information" and propose an oscillation between "shared-meaning" intersubjective research steps, and "scientific-evidence" objective (measurable) research steps throughout the research process. Sort of moving from the outsider's perspective to the insider's and the when you come out again the community gradually comes "out" (ie sees things objectively) with you.“
There may be a danger in that scenario that the community is not respected. I am worried by what appears to be the emphasis on maintaining the scientific end throughout the bonding experience. An important element of informed consent is the independence of the subject. When the kind of bonding occurs that I think the example is describing, then the independence of the subject is potentially compromised inasmuch as the bonding implies both parties equally respect the independence of the other. But since the scientists are working for their ends, the question of whether the friendship is put to the use of the scientific end, or is it respected for its own sake? If there is the possibility the friendship is subordinate to the scientific end, then ethical questions surround the formation of the friendship, assuming friendship is a value in its own right, and is a space that is relatively free of larger intentions. That is, is the friendship instrumentalized in this scenario? I do not know enough about the project to say, but that is my concern based on the short description above. If the “friendship” was truly bilateral, then an equal possibility would be that the “friends” would be just as likely to undertake community humanistic goals as to undertake the scientific goals of the researchers. That is, the joint resources of the friendship would be truly open to both ends. I look forward to learning more about the social dynamic contemplated by the abbreviated description above.

To me the solution, not possible at the moment, would involve at minimum advocates for individual and collective subjects who are trained in the sociology and ethics of medicine, research and public health, and who are not party to the neo-enlightenment obsession with quantitative science. Since the push-back from subjects must be both against science-as-ideology and the research enterprise, both of which are immensely powerful in their respective domains, two kinds of power in or for subjects must be developed. The first is a kind of dignity power that would arise from a significant part of the population recognizing it is a target of “science,” and establishing some kind of institution to interface with “science,” so it is not subject to the “divide and conquer” feature implicit in “informed consent.” Instead of a passive population it becomes active, recognizing its own dignity as having priority, not the ends of science. The scientific community, and science, should be recognized as tools of society, not its masters. Although this sounds strange perhaps, especially to those scientists whose hearts are in the right place, the emphasis on expert knowledge in public health and public health ethics points to the immense importance of the scientist in conceptions of social guidance in the scientific and regulatory community. Human and democratic values should dominate science-as-institution. The second is a more pragmatic and economic power. Since drug companies cannot establish intellectual property without access to human bodies, the quid pro quo for access should be commensurate with the use and profits of the data. That is, a significant percentage of drug company and other profits from the intellectual property should flow directly to the individuals/communities without which the intellectual property could not have been created. With regard to research in which no intellectual property results, the community should have some mechanism of its own to determine whether it thinks the research is worthwhile in terms of its own interests.

To put it in more philosophical terms, the metaphysics of the reductionist and quantitative sciences should not extend into human and social metaphysics. Human and social metaphysics should prioritize ideas/values of natural law, dignity, human rights and so on. Man, when considered as a locus of moral values, is irreducibly a political animal, not a biochemical or quantitative event. Although there are many reasons biochemical understanding of organisms is important, such understanding is weak in the domain of justice.

This administration has been criticized for politicizing science. By that is meant that the methods of science have not been respected. I do not mean the foregoing to intrude into the methods of science. However, inasmuch as scientists put their methods on trial, so to speak, then they are fair game. Examples readily spring to mind: peer review; non-disclosure agreements for research results; control of scientific regulatory bodies by industry; industry underwriting of academia; and so on. The methods of science are routinely distorted by the private sector for its ends, and this is socially acceptable and anticipated (e.g., the Supreme Court decision holding the FDA determination of medical device safety preempts individual claims against the device manufacturers for badly designed devices). The important question is, why is its use for political ends any different? Science and the scientific method are ideal categories, epistemological utopias. In reality, especially in the area of health, practice is far from theory. Since in our neo-liberal society science is primarily for the sake of the market, and contrary to liberal ideology only benefits the wealthy, then shouldn’t democratic social values, dignity, human rights, etc. have ethical priority when thinking about research on peoples? What that means exactly is not clear, but it would appear that standard is violated if we take a group and educate them only to the value of our purpose, without also empowering them to criticize the undertaking from an outsider’s point of view.

That begs the question of whether there is an outsider’s point of view. Is it possible to train people to see the world without the enlightenment/progressive patina of science as the best and highest way to understand the world?

Read more ...

27 May 2008

Marketing placebo for use by the public

Today experts say placebo use by a parent is deceptive and unethical. Perhaps they have never practiced "medicine" or health care. Surely, they understand placebo has been used since antiquity, and continues in use. There are three issues: 1) does placebo work? 2) is placebo use in and of itself unethical, without consideration for who uses it, because it is deceptive? 3) is placebo use by parents unethical?

1) Placebo has been used by physicians and other health workers since antiquity, and continues in use today. There is a strong argument not using placebo is unethical. One expert says: “Each and every time you give a placebo you see a dramatic response among some people and no response in others.” Of course, that is well understood. In fact, it disguises by leaving unsaid one of the reasons placebo is justified. No medicine works 100% of the time. It may give some bodily reaction most of the time, but that is not the same as a curative action. Henry Beecher, whom we know as one of the initiators of research ethics, also gave us the medical short-hand that about 1/3 of patients get better by themselves, 1/3 by medicine, and 1/3 don't get better. That is based on his early 50's paper that said about 1/3rd of cures from any intervention are not due to verum, but to the placebo effect. The research about placebo ranges from 30-40% (or more) effectiveness to it is not effective at all. As a matter of professional judgment, in which "evidence" is primarily based on the physician's experience, placebo is a valuble tool in the arsenal of tools to help people feel better. As a general matter, in short, there is no pragmatic reason not to use it. It works.

2) The deception issue in medicine is problematic. But if placebo is treated llike any other intervention, then perhaps the problems disappear. Since no medicine works all the time, some more than others, when the physician tells the patient about any medicine it would be unethical to say it works all the time. So, what is the problem with treating placebo like any intervention, all of which have a potential not to work? That is, if use of placebo is unethical because of deception, then much use of medicine is deceptive for similar reasons. Any argument about placebo must be generalized to an argument about the use of deception in medicine and the uncertainty of medical knowledge in general. No physician knows with theoretical certainty whether any substance he or she gives will work.

3) Given the foregoing, the protestations against parents using placebo for their children sound more like the familiar refrain of "only physicians (MDs) know how to treat disease, and you parents should not be mucking about with the lives of your children." Defenses of this kind are dubious on many axes.

Read more ...

25 May 2008

About political.animals

This blog is about health as seen through the focal points of political theory, moral theory, theory of biology, ethics, law (international, natural), justice, history, human rights, national security, sociology and policy. I understand health to refer to a state or condition of a living thing, taking into account Aristotle's observation that "man is a political animal." The reference to a definition of "man" consciously refers to two ideas. First, ethics (or health) requires a theory of biology. We cannot discuss (as a philosophical matter) any of the foregoing subjects without knowing what a person, or other living thing, is. Are living things biochemical machines? Are they definable by the level of autonomy they have, with man at the apex of a more or less well described hierarchy of autonomy ranging beneath her from the great apes down through plants and into single-celled organisms? Or are we purely social animals, determined by socio-economic status or some other social determinant? These three determinisms dominate, mostly from a unacknowledged position of authority, the outcomes of discussions of health.

Health then, may simply be a word that has no instrinsic or unified meaning. Can it mean the same thing for a biochemical determinist as it does for a social determinist? Pragmatists use a hybrid approach, thinking of the human as the focal point of the three determinisms. However, even this position ultimately requires decisions about a theory of biology, if moral discourse is to proceed from the pragmatist's position. Moral theory cannot tolerate, in my opinion, a bifurcated essence because morality is a characteristic of a whole thing, it is values, ends, goods, or other concepts related to living things, their self-image and relationships. Biochemicals, nerve plexes and statistics cannot have moral status apart from the focal point of the living thing(s) of which they are characetistics. Since morality is about what to do in the future, it must be about things that can be said to have the capacity to contemplate the future, and make and act on decisions about what is contemplated. Living things and political organizations of living things fir the bill. If man is not a political animal, then how can we make moral sense of the world we live in?

Read more ...