Daniel Brudney

This chapter opens with an examination of Barbara Herman’s integration of the role of character in contexts of human interaction and understanding into neo-Kantian thought, arguing that the attempt pushes us outside Kantian ethics. Herman stresses that a virtuous character must be capable of providing an accurate description of the moral circumstances of action. But as shown in Jane Austen’s _Pride and Prejudice_ and E. M. Forster’s _Howards End_, an accurate description down on the ground of our moral practices will require a fine-grained exercise of imaginative sympathy with other persons. Thus a virtuous individual, qua accurate describer, is crucially someone with well-developed non-rational capacities: this, as literature powerfully shows, is a condition of virtue. This addition takes us beyond Kant, and so literature here becomes a prime source of a cultivated form of ethical awareness that functions powerfully within contemporary ethical theory and its arguments.

In some views, philosophy’s glory days in bioethics are over. While philosophers were especially important in the early days of the field, so the argument goes, the majority of the work in bioethics today involves the “simple” application of existing philosophical principles or concepts, as well as empirical work in bioethics. Here, we address this view head on and ask: What is the role of philosophy in bioethics today? This paper has three specific aims: (1) to respond to skeptics and make the case that philosophy and philosophers still have a very important and meaningful role to play in contemporary bioethics, (2) to discuss some of the current challenges to the meaningful integration of philosophy and bioethics, and (3) to make suggestions for what needs to happen in order for the two fields to stay richly connected. We outline how bioethics center directors, funders, and philosopher bioethicists can help.

Substituted judgment is widely used at the bedside, but the moral value that underpins its use needs examination. I argue that this value is the value of leading an authentic life. I then argue that an authentic life has multiple axes and that patients (like all human beings) vary widely in how they score on these axes. This entails that the moral weight of the value of authenticity in bedside decision-making also varies widely. And that means that, at the bedside, substituted judgment should not be seen as a moral trump. Put differently, when a surrogate must make a bedside decision, the answer to the “What would the patient choose?” question should not be morally decisive for that decision. The answer to that question should be a part, but only a part, of a more complex decision-making process.

This chapter compares the 1844 Marx (the Marx of the Economic and Philosophic Manuscripts of 1844) and the Rawls of A Theory of Justice, with the central topic being the young Marx and the middle‐aged Rawls. It starts with the standard Marxian criticism of Theory, and then discusses the two ways in which the writers resemble one another. Eventually, the discussion returns to the standard criticism, casting it as a difference in the writers’ conceptions of “alienation.” The 1844 Marx condemns capitalism for its deep and multiform alienation of labor but misses the fact that a theory of distribution asks, among other things, what ought to be distributed. The alienation associated with the absence of the difference principle in a restricted utility society stems from a perceived deficit of concern. Rawls claims in Theory that the difference principle is “an interpretation of the principle of fraternity”.

In this article I note two ways in which current assessments of patients’ decisional capacity rest on disputable philosophical assumptions. The first disputable assumption concerns the nature of practical reason; the second concerns patients’ articulation of their preferences. I do not argue that clinical practice should be changed. Still, relying on disputable philosophical assumptions can distort the description of such practice. It would be good for philosophers and philosophically oriented clinicians to work with a philosophically accurate account of clinical practice. Moreover, every so often more accurate description might make for better practice.

It is a clinician’s cliché that a physician only challenges a patient’s capacity to make a treatment decision if that decision is not what the physician wants. Agreement is proof of decisional capacity; disagreement is proof or at least evidence of capacity’s absence. It is assumed that this asymmetry cannot be justified, that the asymmetry must be a form of physicians’ paternalism. Instead what is at issue when patient and physician disagree are usually two laudable impulses. The first is physicians’ commitment to patients’ well-being: physicians have a professional obligation as well as, ideally, a personal commitment to take care of patients—to do their best to bring about a positive medical outcome. The second impulse is common to much of human life, namely, the urge to find and to understand the source of our disagreements with one another. In this article we argue that, jointly, these impulses justify the asymmetry with regard to examining patients’ capacity.

In lieu of an abstract, here is a brief excerpt of the content:Nostromo and Negative LongingDaniel BrudneyWhat, as the upshot of this exhibition of human motive and attitude, do we feel Conrad himself to endorse? What are his positives? It is easier to say what he rejects or criticizes.—F. R. Leavis, The Great Tradition1IWriters, playwrights, filmmakers have often seen their work as political. In this essay I discuss one way in which a narrative might be political. My proof text will be Joseph Conrad's novel Nostromo.2Let's start by noting several ways in which a narrative might criticize the present.(1). It highlights a shortcoming, say, an injustice, of the present.(2). It shows the possibility of a different and better society, usually inhabited by people with a different and better psychology.(3). It shows nothing positive, and yet it elicits a desire for a radically different and radically better future, that is, for something very different from the present.The first option divides into:(1a) The narrative shows a particular injustice, the sort of thing that concrete institutional change might eliminate or ameliorate. There are plenty of examples of (1a): Uncle Tom's Cabin, The Jungle, the movie Dirty Pretty Things. We could debate how far particular instances are propaganda, journalism, or "literature," and what difference these categories might make. Here, I merely note that narrative is capable of pointing to, making palpable, evoking outrage at, this or that particular injustice. Narrative will rarely tell us the best way to fix the injustice ("There ought to be a law" merely begins that conversation), but it can convince us that a particular injustice exists and needs to be addressed. [End Page 369](1b) The narrative shows what is wrong with something more general: a pervasive social institution, such as the market, imperialism (of one or another kind), some general pattern of social feeling and conduct. Many classic works do this, such as Middlemarch and Madame Bovary. Of course, precisely because such works criticize large and pervasive phenomena, they usually do not point to any specific solution. They say, "This (something fairly general) is bad."When we move to narratives that try to present better worlds, things get more complicated. We can see the issue by noting a distinction in (2) and between (2) and (3). With (2a), we are in the realm of what John Rawls calls a "realistic utopia."3 This is supposed to be (i) sufficiently specifiable, in terms of, say, principles of distribution, a conception of the person, and a conception of justification; that is, in terms of several central organizing ideas. It is also supposed to be (ii) sufficiently realistic in terms of the moral psychology needed for its instantiation. Rawls often talks of full compliance in his well-ordered society, but for that society to be sufficiently realistic, the psychology of its citizens must merely be a sufficiently real possibility in the sufficiently near future to generate sufficient compliance to make for sufficient stability.Call a realistic utopia realizably realistic if (I) the better angels of our nature upon which it calls are sufficiently like our actual nature to be plausible in the relatively near term, and (II) it does not require too often the instantiation of those better angels. The contrast is to (2b), a realistic utopia that is unrealizably realistic because although it satisfies (I) it does not satisfy (II): it is too dependent on the more or less constant instantiation of those better angels. It assumes that "can implies will" even though in real life the inference often fails.4 Still, such a society remains "realistic" since it is possible for us always to instantiate those better angels.With (3), condition (i) is not satisfied. The issue is not that we cannot or that we believe human beings will not realize something specifiable in terms of institutions and citizen psychology. It is that we have only a vague and primarily negative understanding of what we want. It is substantially (perhaps entirely) a political via negativa. And so (ii) cannot be known to be satisfied.The distinction between (2a) (and maybe also [2b]) on the one hand, and (3) on the other, tracks two ways...

Let’s start with three cases of refusal of treatment.[A] 24-year old graduate student is brought to the emergency room by a friend. Previously in good health, he is complaining of a severe headache and stiff neck. Physical examination shows a somnolent patient without focal neurologic signs but with a temperature of 39.5 degrees centigrade and nuchal rigidity. Examination of spinal fluid reveals cloudy fluid with a white blood cell count of 2000; Gram stain of the fluid shows many Gram-positive diplococcic. A diagnosis of bacterial meningitis is reached, and administration of antibiotics is recommended.... When [the patient] was told his diagnosis and that he would be admitted to the hospital for treatment...

Jack, who is seventy‐five years old, is in the hospital with a terminal condition that has undermined his cognitive faculties. He has left no advance directive and has never had a conversation in which he made his treatment wishes remotely clear. Yet now, a treatment decision must be made, and in modern American medicine, the treatment decision for Jack is supposed to be made by a surrogate decision‐maker, who is supposed to use a decision‐making standard known as “substituted judgment.” According to the substituted judgment standard, Jack’s surrogate decision‐maker, his wife, is supposed to decide on his treatment by determining what Jack would do if he did have decisional capacity. That is, she is supposed to answer the question, what would the patient choose? I will argue that this is the wrong question to ask because when the question has a determinate answer, that answer is sometimes not sufficiently connected to the value that is supposed to make the question morally salient, and because sometimes, perhaps often, there is no determinate answer to the question of what the patient would choose. Jointly, these two problems suggest the need for a different question.

My topic is a problem with our practice of surrogate decision-making in health care, namely, the problem of the surrogate who is not doing her job—the surrogate who cannot be reached or the surrogate who seems to refuse to understand or to be unable to understand the clinical situation. The analysis raises a question about the surrogate who simply disagrees with the medical team. One might think that such a surrogate is doing her job—the team just doesn't like how she is doing it. My analysis raises the question of whether she should be overridden. In approaching this problem, I focus not on the range of difficulties in practice but on the underlying moral conceptual issue. My concern will be to show that the moral values that underpin patient decision-making are fundamentally different from those that underpin surrogate decision-making. Identifying the distinctions will set parameters for any successful solution to the “Who should decide?” question. A patient has a specific kind of moral right to make her own medical decisions. A surrogate has no analogous moral right to decide for someone else. We want the surrogate to make the decision because we believe that she has a relevant epistemological advantage over anyone else on the scene. If and when she has no such advantage or if she refuses or is unable to use it, then there might not be sufficient reason to let her be the decision-maker.

Recently political philosophers have shown an interest in describing our society's understanding of its social ideals. In this context it is appropriate to examine Marx's attack on utopia, for that attack brings out the issues facing any attempt to found a political philosophy--particularly one with a socially critical intent--on the description of an ideal. ;The dissertation is concerned with the status of such a description. How can it be shown that the description does not proceed from a standpoint which undermines its claim to objectivity? In Marx's terms, how can it be shown that the description is not a form of false consciousness? ;I provide a reading of the work of the Young Hegelians Ludwig Feuerbach and Bruno Bauer to show that they are representative targets for Marx's attack on utopia, and I then examine his criticism of the Young Hegelians as presented in the German Ideology. ;The Marxian alternative to utopian description is a combination of empirical science and an "immanent critique" of capitalism. The latter attempts to decode phenomena within capitalist society to find within them a hidden social protest. Critique claims that, despite the strength of false consciousness, we do continue to have a conception of true human needs and capacities, a conception which points beyond capitalism. The idea is to extract this conception from existing phenomena, doing so in a manner which shows that the conception is already our own--the critic is merely articulating our deepest beliefs. I examine the practice of critique in the section on commodity fetishism in Volume One of Capital, and in the work of Theodor Adorno. ;I argue that in Capital an immanent standard for critically judging capitalism is not successfully extracted. And I argue that Adorno is so concerned with the ubiquity of false consciousness, with the claim that nothing can escape it, that he deliberately precludes the possibility of generating adequate content for a conception of true human needs and capacities. ;In this situation, a turn to utopian description would be productive; and from a Marxist standpoint, given the claim that false consciousness is essentially everywhere, utopian description would be no more theoretically problematic than any other attempt to derive a critical standard from within capitalism.

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 …

Communitarians have long criticized John Rawls′ theory of justice as fairness. In this paper I sketch a picture of communal relationships and use it to examine the nature of community in Rawls′ theory. In the first section I extract a picture of communal relationships from Karl Marx′s work of 1844; in the second section I argue for this picture′s distinctiveness; finally, I look at a shift in the nature of Rawlsian community between A Theory of Justice and Rawls′ later book, Political Liberalism. I argue that a picture structurally similar to that in Marx is exhibited by the well-ordered society of A Theory of Justice, although not by that of Political Liberalism. The communitarian charge – the charge that Rawls′ view is at odds with an emphasis on community – turns out to be justified, but not with respect to A Theory of Justice, the standard communitarian target.

Among the tasks of modern political philosophy is to develop a favored conception of the relations among modern citizens, among people who can know little or nothing of one another individually and yet are deeply reciprocally dependent. One might think of this as developing a favored conception of civic friendship. In this essay I sketch two candidate conceptions. The first derives from the Kantian tradition, the second from the 1844 Marx. I present the two conceptions and then describe similarities and differences. My approach is both taxonomic and programmatic. My taxonomic goal is to provide an initial sketch of the conceptual territory. My programmatic goal is to provide reasons to think that the conception derived from Marx is both appealing and feasible.

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 27.2 (2003) 318-340 [Access article in PDF] Marlow's Morality Daniel Brudney "Good is a transcendent reality" means that virtue is the attempt to pierce the veil of selfish consciousness and join the world as it really is. —Iris Murdoch, The Sovereignty of Good I THE REPUTATION OF Conrad's sailor-narrator, Charlie Marlow, has risen and fallen through the years. Initially seen as a simple master mariner or at most as a technical device, a way to get a tale told, with the work of Albert Guérard he began to receive his due, becoming lionized as the true subject at least of Heart of Darkness, and of more than technical interest in the other stories. 1 In recent years, however, his reputation has slumped hard as his racism and sexism have come to the fore. In this article, I attempt no full-scale rehabilitation but simply point out that, despite his failings, Marlow possesses a virtue worth remarking and that his failings involve a failure to extend that virtue far enough.I call that virtue attentiveness, and more specifically, attentiveness to the other. It has been neglected, at least by philosophers, although as a virtue it is utterly obvious. This is not surprising. The moral life is generally the sphere of the obvious and progress here often consists merely in noting what has been overlooked. The presence or absence of this virtue is revealed less by what the agent feels or doesn't feel or does or doesn't do than by her stance or orientation toward others. And as orientations are slippery things to describe (and this one more than most) there is an advantage in looking at literary characters: they show palpably the virtue (or corresponding vice) at issue. My focus in this [End Page 318] article is the forms that Marlow's tales (particularly Lord Jim and Heart of Darkness) show attentiveness to the other can take—and fail to take—in a human life. II Let's begin with Marlow's sexism, and specifically as manifested in his lie to Kurtz's Intended. She asks for Kurtz's final words, and Marlow replies not "The horror! The horror!" but "The last words he pronounced was—your name" (HD, p. 161). 2 Marlow says that the truth "would have been too dark, too dark altogether" (p. 162). But what doesn't Marlow want the Intended to know? That her beloved went mad in the jungle, became evil? And why shouldn't she know this? Because it would bring her pain? But Marlow insists that the Intended has "a mature capacity" for suffering (p. 157; a capacity to handle it, presumably, not a proneness to it). Anyway, Marlow's lie will perpetuate suffering, her mourning for her image of Kurtz: smash her idol and she might be able to get on with her life. In any event, the issue of suffering does not explain why the truth is "too dark."Marlow does not class the Intended as "one of us" (LJ, p. 43). This is the phrase he, like Conrad, uses to characterize Jim in Lord Jim. It is usually taken to refer to national or racial identity or perhaps to membership in the merchant service. However, the phrase also has a biblical resonance. Genesis 3:22 says, "Behold, the man has become like one of us, knowing good and evil." I think the reason the Intended is not "one of us" is that she does not know good and evil—does not know that there are good and evil. That is the mystery into which Kurtz's final words would have initiated her."There is a taint of death, a flavour of mortality in lies," Marlow says, "which is exactly what I hate and detest in the world—what I want to forget" (HD, p. 82). Yet he does lie, so there must be something he thinks worth saving even at the cost of siding with mortality. What might that be? In the beginning of Paradise Lost, Milton declares that he will sing Of Man's first disobedience, and...