Daniel Brudney

In current American medical practice, autonomy is assumed to be more valuable than human life: if a patient autonomously refuses lifesaving treatment, the doctors are supposed to let him die. In this paper we discuss two values that might be at stake in such clinical contexts. Usually, we hear only of autonomy and best interests. However, here, autonomy is ambiguous between two concepts—concepts that are tied to different values and to different philosophical traditions. In some cases, the two values (that of agency and that of authenticity) entail different outcomes. We argue that the comparative value of these values needs to be assessed.

In this essay, I raise the question of whether some degree of noncoercive state support for religious conceptions(broadly understood) should be left to the majoritarian branch of government. I argue that the reason not to do so is that such state support would alienate many citizens. However, to take this as a sufficient reason to constrain the majoritarian branch is to accept the thesis that not being alienated from one’s polity is a significant part of the human good. Those who would prohibit even a small amount of noncoercive support of religious conceptions must appeal either to pragmatic considerations (the worry that noncoercive will lead to coercive support, i.e., to tyranny) or to a conception of the good that puts great value on the agent’s sense of connectedness to the polity. And the latter is something that reasonable citizens in a modern democracy could reasonably reject.

I am grateful to John Phillips and David Wendler as well as to The Journal of Medical Ethics for the opportunity to express some thoughts about surrogate decision-making. Current practices are just a few decades old. It would not be surprising if they need a bit of tweaking. An earlier acceptance of the physician as the decision-maker at the bedside relied on the premise that, among those at the bedside, the physician was most likely to be a person of practical wisdom, what Aristotle called a phronimos. The premise was that, in the welter of medical and non-medical considerations, the doctor was the most likely to pick out the best available option for the patient, the option that would best advance the patient's interests. Read this way, there are reasons for scepticism: 1. In an era of hospital medicine, the doctor is unlikely to be sufficiently well acquainted with the patient to know what is best for her, what is in her best interests. 2. If the decision is (non-medically) difficult, calling for sagacity and human insight, there is no reason to think that the doctor, through being selected, trained and put to work by the medical establishment, will have more of such qualities than the patient. It is thus understandable why the premise of physician wisdom might no longer seem attractive with decisionally competent patients. Turning to the surrogate context, three questions need answers: What did the patient say or indicate she wanted? What would the patient want? What is in the patient's best interests? Let's examine them in reverse order. The above objections also apply to the issue of who is more likely to get the patients’ best interests right, the doctor or the surrogate. With the question of what the patient would have chosen, the scale tilts further …