Almost everyone has an opinion about almost every topic contained in this book, and even after reading such a book or taking a course that incorporates these materials, most do not, in my experience, change their overall view of these topics. Though some may vary their view a bit, the weight of their history and family and environment and experience, even their brains and genes, has solidified their views. Their views may be consistent with one another or even contradictory, but on each topic they consider their conclusion to be the moral one. For almost everyone, then, the conclusions they reach about the most important life and death issues (as abortion, the care of children, capital punishment, and the right to die) and about the most significant administrative topics (as affirmative action, professional conduct, sexual conduct, and privacy) appear to them to be moral decisions. And they are, for them, and for a variety of reasons, that we will explore in this book.
Further, general or more detailed acquaintance with these topics is widespread. For these topics headline the news, and occupy ordinary people as well as governmental, business, educational, and other leaders. Most of them cause serious controversies between and within religions and courts and legislatures and families as they impact the autonomy of the individual when it conflicts with the wishes of the majority. All of them concern everyone who must deal with basic life and death issues, as everyone must to a larger or lesser extent; and many concern those whose lives are impacted by important administrative issues as well. Because there is misinformation in society, in the media, even among lawyers and ethicists about all the topics, this book attempts to clarify the relevant moral and legal concerns.
Because the book is about moral decision making it is instructive to ask those who are making decisions whether others who directly oppose their view can also be making the moral decision. In response, some will say no, some will say yes, some are unsure. Why this is so and what it means is the broad subject of this book.
Let me begin with an imperfect analogy. Judges instruct juries before they begin their deliberations to discuss the case at some length prior to taking any sort of vote. Jurors are cautioned against beginning with a vote of the members. The theory behind this suggested restriction is that individuals who take a position at the outset may be reluctant to back down from their stated view. They may be acting on limited information; they may have a skewed view of the case; they may be mistaken on some of the facts, theories, evidence, people in the matter. Even so, they may feel, as the deliberations proceed, that they need to justify their initial statement or view or vote. Yet the very process of coming to a unanimous verdict in a criminal case, for example, is to convince those who take a different position at the outset to move toward one consensus conclusion. And that is usually in the direction of the majority of jurors when the first vote was initially taken, whether at the beginning of deliberations or later on during them.
In the award-winning drama, 12 Angry Men, a jury's initial vote of 11-1 for a guilty verdict and the ensuing resistance to and process of change were convincingly portrayed. While the outcome of the jury deliberation was contrary to the usual result in a vote skewed as that one initially was, the psychological processes at work remain valid and compelling.
That script began with a judge giving overall instructions to jurors at the end of a murder trial where the mandatory punishment for a guilty verdict was death. Jurors then retired to the jury room, elected a foreman, and took an immediate vote. In it, all jurors save one considered the defendant guilty. The entire drama then centered around that lone juror arguing his position, questioning the evidence, and gradually persuading the others, generally one by one, to change their vote from guilty to not guilty. He did this by essentially taking the role of a defense attorney questioning the evidence brought out at the trial but presumably left unaddressed in the courtroom itself. As the jurors sized up the arguments and each other, they shifted their votes until at the end of the drama, all voted the defendant not guilty. And audiences over the more than fifty years since its first production have felt that the final verdict was a just one.
The drama was satisfying because of both the intricacies of the script and its questioning of eyewitness identification evidence and because those whose initial change encouraged others to change have been seen as more thoughtful, more balanced, less prejudiced, more humane, more moral it would appear. While psychologists often noted that that strong movement in this drama from 11-1 in one direction to all 12 in the opposite direction was highly unusual, they also noted that the social psychological processes at work in the group were the usual ones in any group. That psychological truth was what made the drama compelling and ultimately convincing for while the result may have been at odds with the likely movement within a group, the two common processes in any group were effectively portrayed.
Two psychological processes made the deliberations in 12 Angry Men and the conclusion reached at its end understandable and compelling. While each juror came to the deliberation with his own views, approaches, history, experiences, knowledge, and sense of justice, the working out of those two processes made the drama especially effective and enduring. The first of these might be termed an expansion of views and the second might be called a comparison of those who hold the differing views.
The first social psychological process opened the members of the jury to a variety of different views, approaches, comments, even tentative conclusions, so that each one of them had a broader array of views to consider than he initially brought with him into the jury room. That is the variety that a book like this, or a course, or a discussion group, or a panel, or the immersion in a college or a different culture can accomplish. This book presents an extensive array of materials and it draws on many different sources. It accepts the challenge of going beyond what many may consider the true or moral or ethical or right answers to the questions which are raised in order to show the wide array of answers others consider to be true or moral or right ones. While some of the materials may immediately strike some readers as too far apart from their own views to be worthy even of consideration, the attempt here is to present as varying a range of views as have been addressed by legal and ethical commentators, by courts, by individuals and groups. The aim is to expand those materials which may prove to be of use in thinking about moral decision making, if not in making actual moral decisions.
The second psychological process on display in 12 Angry Men was different from the presentation of an array of arguments, positions, evidence, approaches. It was more personal in that it allowed the members of the jury to experience for themselves which members held which views, which members argued more persuasively, which members had clearer understandings of the evidence, which members appeared more moral, and then having assessed the other members of the jury, to determine which persons' views they felt most comfortable with. That second process helped to explain why those who enter a new group often seek a group most like themselves or may, in entering a larger or smaller group unlike themselves, at least initially modify somewhat their own views, approaches, conclusions as they identify with some in the group more than with others.
Like the jury's deliberation, the initial purpose of this book is to expand the range of arguments, evidence, comment, approaches to topics at the intersection of law and ethics. When used in conjunction with a course its purpose is to guide that expansion so that those participating can determine which arguments seem more compelling, which persons they more easily identify with, and what influence the arguments and the persons have on the reader or the course-taker. Unlike jury deliberations, there is no need here to reach a consensus on moral decision making, and general moral views are less subject to change than are decisions about facts of a case in relation to the law governing them in a jury trial.
Originally, I compiled a draft version of some of these kinds of materials into a volume called Making the Moral Decision because that was the subtitle of the course I inherited whose main title was Law and Ethics. And yet, even at the outset, I wondered: What does it mean to make the moral decision? For that question implies strongly that there can be only one decision which is the moral one and that other offered decisions are necessarily therefore non-moral or immoral or amoral.
This book addresses that important question of what it means to make the moral decision by focusing on a number of current moral problems, and by examining various approaches to moral decision making. But the book reframes the question as it should be, if the purpose is educational and not indoctrinal. So, at the outset, the question should be: What does it mean to make a moral decision? For it is essentially the difference between the moral decision and a moral decision that captures the controversies now surrounding such issues as abortion and affirmative action and euthanasia and capital punishment and sexual conduct and the other topics included in this volume. What is the moral decision to make concerning abortion, for example? Or what is a moral decision to make concerning abortion, and can another decision which is directly opposed to that one also be a moral decision? Or can there be only one moral decision? This broad ranging inquiry is a large part of the controversy surrounding moral decision making.
This book aims to present, explain, question, and compare the various answers given to the contemporary moral questions raised. Among them are these. Should a woman have a right to an abortion? What are the limits on parents' choice of care for their children? Should there be capital punishment? Does a person have a right to die? Should there be affirmative action? What are the limits of professional conduct? What are permissible forms of sexual conduct? How much privacy should an individual be entitled to? Which ethical theories ought to prevail? Whose religious tradition ought to be controlling? How should the U.S. Constitution be interpreted? How should Judges decide?
To all of these questions there are opposing answers strongly advocated by those of varying views. Looming over all these problem areas is the still larger question of whether all of the opposing answers to these questions are moral answers, or whether each question can only be answered by one moral answer with the other answer either less moral or even immoral? And what is totally outside the realm of moral decision making? Certainly all decent, ethical, reasonable people would agree that genocide (as in the systematic killing of Jews, gypsies, homosexuals, and others in the Holocaust) is totally immoral.
But even where there appears to be but one moral decision, there can be disagreements about moral decision making. For while it is agreed that the genocide as demonstrated in the Holocaust is immoral, there are not many issues on which there is such unanimity in moral decision making. And even with the topic of genocide, there is disagreement. While ethicists agree that genocide is immoral, there are definitional disputes as to what is or what is not genocide. One such dispute arose within the Jewish Anti-Defamation League over whether to call the slaughter of Armenians by Ottoman Turks a genocide. And the House of Representatives and the President of the United States disagreed about whether to apply that term to that historical event, the former declaring it should be applied and the latter that it should not be.
People of good will who are decent, ethical, and reasonable people argue strongly the opposing sides of the major moral problems facing societies and individuals. Many follow the dictates of their own religion or their own sense of morality. When that does not conflict with the law, individuals can follow for themselves any acceptable set of moral values. Thus, many Roman Catholics and Evangelical Christians and others argue against a woman's right to an abortion while many Protestants, Jews, and others argue for a woman's right to abortion. All feel they are religious, moral people. Some minorities argue against affirmative action while their leaders and many of them argue for it. Both groups feel they are ethical people engaged in making the moral decision, yet they take opposing views. In the larger view, all are making a moral decision; yet in the view of those who hold one view (as, for example, those who completely oppose abortion) they are making the only possible moral decision. They feel that any view other than their view is an immoral one. And when the power of religion, for example, is not strong enough to compel people of their own faith or of other faiths to follow some particular moral view, then the effort is made, through the legislature or through the courts, to enact into law that group's view of the moral course of action. In a pluralistic society, one which guarantees the freedom of religion, the decision to enforce a particular moral view cannot be directly a religious one.
But that is not to say that religion does not play a strong role in determining what view the law will incorporate into its statutes, regulations, and court decisions. In the area of basic issues religion has always played a strong, if not dominant role while in the area of administrative issues, the influence of religion has been more subtle. And, of course, in a pluralistic society such as the United States, secular humanism and various ethical constructs may be as important as or more important than religion.
Many times, people argue not about the moral decision but about which issues are within or outside the realm of moral discourse or, perhaps, near the edge of that realm. When the Pope declared at the United Nations that the protection of the environment was a moral cause for the Roman Catholic Church did that make it one to those outside the Church? Would a law mandating English as the national language, for example, be within or outside the realm of moral decision making? Whether or not something is within that realm, it may be an important issue to many people. So one might ask what difference it makes if an issue is viewed as a moral one or not. Perhaps it makes a difference in the seriousness with which the issue is taken. Perhaps it makes a difference in the kinds of arguments used to persuade. Perhaps it makes a difference in the urgency of the competing views. Not only do people argue about which issues dictate a clear decision based on a communal morality, but they take strongly divergent stances on just what is a communal morality, and who should decide what it is.
This book is designed to encourage moral reasoning, to set forth the arguments on various sides of issues, to encourage walking in others' shoes to understand more clearly the kinds of arguments being made and their implications for ethical and legal decision making. Clearly, the book is not a catechism. It attempts to avoid preaching a truth to be memorized and believed. For that exercise the reader must look elsewhere, and I have cited in the Bibliography a number of works of varying approaches to aid with that further exploration.
This book is intended for general reading on the topics covered, and for use in courses in Moral Problems, Ethical or Moral Reasoning, in Current Affairs, or in Law and Ethics. It does not presuppose prior work in either law or ethics. The focus is on cases and accompanying materials representing eight major moral problems: abortion, affirmative action, capital punishment, care of children, privacy, professional conduct, right to die, and sexual conduct. Half of these problems involve fundamental issues of life and death, while half involve important administrative practices in education, business, the professions, and at home. Some cases are drawn from contemporary events which have not found their way to court. These cases are summarized from media and other sources. Other cases have found their way to court. These cases are presented through majority and dissenting opinions of justices in courts in which the cases have been heard or to which they have been appealed.
In this book, cases have been summarized concisely to focus on the major arguments concerning the moral issues, the various lines of reasoning, and some of the examples and data used. Accompanying materials help to frame the issues, draw the arguments, and show varying approaches. The focus on the media and on courts reflects the most prominent sources for most people of guidance and debate on issues of law and ethics. This book emphasizes both the approaches to the problems and the content of the problems themselves. For in moral decision making there is controversy concerning the approaches taken as well as the conclusions drawn.
In concluding this introduction I should add that I have had direct personal experience with some of this material. Three of the case studies in this book involved me in lesser or greater ways. In one of them the son of the convicted and imprisoned judge who sought reinstatement to the Bar was my teaching assistant and then the sponsor of seminars I gave at Yale during his time there, and I came to know him and his family well. In another of them my mother was scheduled to be operated on by the same doctor whose malpractice record was the subject of a 60 Minutes broadcast I had used in my Law and Ethics course, and years later I was given his name as one of two possible consults for my own herniated disk. And in the third, I knew the judge conducting the inquest into the death of a young child of Christian Science parents, and had told him about my use of a case from the Massachusetts Cape in my Law and Ethics course.
Beyond that kind of involvement, I have followed all the cases in the book and many others over some decades of interest and teaching. My own educational background in literature, clinical psychology, and law; my experience in courts and colleges; my personal religious and secular background; and even my initial courses, as a freshman in college, in ethics and in logic, have all contributed to my own views.
The aim of this book, however, is not to display those views so much as it is to address the wide range of approaches, conclusions, and comments about these essential topics for individuals and for society. Toward that end, I attempt to present a balanced view, realizing that in our adversary system of justice, one view is inevitably pitted against its opposing view, and that the pendulum, as they say, swings from one conclusion to another over longer or shorter periods of time. That is part of what makes these topics invigorating and their study a challenge. I hope that reading this book will contribute to greater understanding of moral and legal issues, and to a wider appreciation of moral and ethical reasoning and of the role of law with individuals and with society.
