ethical analysis in public policymaking

liCV Studies Joiirnai Vo! 15. Nc 3 V-arc'n "987

CRITICAL ESSAYS AND RESEARCH NOTES

ETHICAL ANALYSIS IN PUBUC POUCYMAKtNG

Daniei Feldmar'i

DO YOU NEED IT AND CAN YOU DO IT?

With increasing frequency since the mid'1970s. I have heard mystudents, my constituents and other citizens express the convictionthat policymakers-be they legislators or bureaucrats-tend to act fromselfish corrupt and othervvtse tnappropriate motives The prevalenceof thts conviction that public officials are generally corrupt makes ithard to generate pressure for ethics particularly if and when thecynics reach policymaking positions themselves If the next generationgrows up heanng tittte but blanket cynicism the self-selection processfor public policymakers will probably be skewed toward corruption

The present reality is that most oolicymakers like most otherpeople, think highly of themselves Since they do not regard them-selves as crooks or scoundrels they prefer to act in ways that theybelieve are consistent vvith honorable pnnciples This does notguarantee honorable behavior, partiv because some may be unconcernedabout self-image Others may engage in virtuoso performances atrationalization, even to the point of convincing themselves that takingbribes is justifiable (Payne. 1981 183-184)

But examples abound of policvmakers acting against their ov/npersonal interests when they believe that to do so is the onlvhonorable course President Kennedy described such behavior inProfiles of Courage More recent examples are the whistleblowers atevery level of government who risl- their careers to bnng importantmatters to public attention While corrupt officials from former VicePresident Spiro Agnew (Payne. 1981) dov^n to low-level bureaucratsexist and sometimes go to pnson pienty of unsung heroes andheroines augment the ranks of those whn do come to public attentionsuch as Ernest Fitzgerald who exposed vast cost over-runs in theDefenss Department and was punished by then-President Nixon mretaliation {Nixon ••- fitzerak^ 102 S Ct 2690 (1982)) Another example

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IS Joan Stake, who exposed gross inadequacies m New York CityWelfare Department programs to combat child abuse and was initiallypunished by Mayor Koch's administration until public pressure forcedhim to reinstate her during the summer of 1984 {New York Times.8/1/84. 11.3 5. and 8/16/84 II. 4 6)

Ethics, therefore, can sway those m a position to make orinfluence public policy But the ethical imperatives are not alwaysclear Biotechnical. economic, gender, and religious issues are difficultand complex enough to provide plenty of room for rationalization Thepublic servant may well be able to rationalize to find some persuasivereason to believe that the best decision for the public servantpersonally also happens to be the nght ethical choice-therebyenabling the public servant to keep a good self-image

Public servants who make policy are often called upon to batancetheir own self-interest against their duty to the public They may seekcareer advancement, greater prestige, more power, wealth, re-election,or other goals At the same time, they may understand their mandateto assure a fair and equitable distribution of society s resources Thewords "fair and equitable." however, beg many questions In con-junction with self-interest, the policymaker must consider variousconstituencies supporters, interest groups to be affected by the policychoice, perhaps some historically disadvantaged groups For purposes ofthis discussion, there is no need to distinguish between legislators andadministrators Both groups face these problems Both are pulled byself-image and self-interest Both can rationalize

Hillel. a Hebrew sage of the first century B C E. asked. "If I amnot for myself, who will be for me'? But if I am only for myself, whatam P" (Aboth. 1 14. The Mishnah. [trans 1933] 447) He set forth thepolarity but did not suggest how to weight each side, except thateach deserves some weight There are several such polarities thepolicymaker must resolve one's own district versus the entire polity(for the legislator), the desire of the policymaker (of either kind) tospend more time with his or her family against infinite demands of theinnumerable constituent and interest groups, the needs of the dis-advantaged against the outcries of overburdened taxpayers Theseconstitute but a mere sample of the competing forces that tug andpull

In resolving these or other dilemmas, it is easier to find ethicaljustifications for various decisions if one is free to choose from avariety of ethical premises Thus, a bureaucratic decisionmaker mayjustify a decision to implement an agency-wide affirmative actionhiring plan for racial minorities on the grounds that a true commit-ment to equality requires bringing those who have been disadvantaged

Ethical Analysis m Public Pohcvmaking 443

to a point of equality of opportunity Then the same bureau chief mayhire a top personal assistant only from among those personally knowneven if none of them hold minority status on the grounds that thechiefs own responsibilities are too important to risk the interests ofthe public by hiring someone whose capabilities he or she does not\<novj well Many in such poficymaking positions may simply ignore theapparent inconsistency rather than engaging m hard value analysisthat either would preclude tt or that would truly justify it

The likelihood that the decisionmaker will find some handyethical justification wit! be reduced if the decisionmaker seeks todetermine the specific nature of his or her ov n ethical premises Ifdecisions are made with conscious reference to one particular andexplicit set of ethical pnnciples selfish choices can no longer berationalized with tnconststent and contradictory arguments Forexample if no lie is ever justified " is a person s basic ethicalpremise that person cannot in good conscience justify lying in aparticular situation on the grounds that in that one case the public isbetter off being lied to But if no clear and explicit ethical premiseunderlies a policymakers decistonmaking process he or she can tellthe truth when that is easier but harmful, and lie when that is easierbut harmful and still convince himself or herself that both choiceswere ethical

Some critics seem to have taken my approach too literally ThereIS no claim here that the complexity surrounding tough issues will meltaway to reveal the obvious ethical solution in the face of analyticattack by a policymaker brandishing his or her own ethical premisecollection Rather the method to be presf^nted here is an ideal form,which can rarely be applied precisely as stated Its value is as anapproach, a guide, a corrective to the usual gross neglect of analyticethical thinking Testing one s policy choices against a particular seto' ethical premises that one recognizes as one's own precludesunconscious inconsistency or subconscious hypocnsy Later thispresentation will address the process by which alternatiye policychoices can be derived from various ethical premises First, however,some of the more standard categones of ethical premises will bereviewed

ETHICAL STARTING POINTS

It IS helpful for people who wish to discuss policy issues witheach other to understand each other s premises so discussion can beconstructive, otherwise they may talk past each other Even more tothe point however it is important for oeople to understand their own

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ethical premises so they are not led into choices inconsistent withtheir own principles

Ethical premises may be placed in three grand categoriesintuitionist. utilitarian, and contractarian (Atken. 1962 12-15."intuitionists" and "naturalists." by which he means something roughlvlike utilitarians Leys. 1952 9-10. "utilitarians' and "casuists." by whichhe means something roughly like intuitionists. Rawls. 1971 22-60)

Intuitionists utilitarians, and contractarians may arrive at thesame policy choice or at different policy choices, but their processesof choosing always differ from each other tntuitionists choose asfundamental a small number of variables such as truth-telltng.holiness, or human equality, which they define as the highest good(Leys. 1943 16) Utilitarians are committed to the greatest good for thegreatest number, and may define "good" across as wide a range ofvariables as they choose (Aiken. 1962 295) Contractarians choose somevariable or variables as a measure of hov-/ people can live togetherbest (see Bloom's [1975] invidious but interesting companson of Rawlswith earlier contractarians)

Most people are probably unconscious intuitionists They tend tobase their responses on ethical pnnciples which seem appropriate tothem, without having engaged m any analysis of why they seem so orafter deciding that it is neither necessary nor possible to engage insuch analysis For example, "do unto others as you would have themdo unto you." is a principle that may not stand up to analysis ifothers have different likes and dislikes, they might find it unpleasantto be done unto as you would like them to do unto you Nonetheless,this ts an ethical premise that many people clatm to accept as a guideto their behavior simply because it seems and feels appropriatePremises developed for such reasons are satd to be held "mtuitwely."and here we term the enormous group of ethtcal philosophtes based onsuch premises "intuitionist" Also included in thts group are philos-ophies based on larth These range from the case of the nineteenthcentury Christian existentialist. Soren Kierkegaard, who asserted hisfaith in conscious awareness that no rational analysis could supportthe decision to make such a choice ("faith begins precisely wherethought stops." Kierkegaard, [trans 1983] 53). to. as in the ordinaryperson's case, a faith chosen without much or any conscious choicebased on family, society, or cultural tradtttons Thus, vanous beltefs inGod and God's law. whether as expressed in the Koran or m theJewish or Christian bibles, would be considered "intuitionist "

Idiosyncratic approaches may be intuttionist as well Someone, forexample, whose fundamental premise is that lying is unacceptable,without regard to any other human value, could be satd to choose

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truth-iellmg on a purely tntutttontst basis Surh a person if consistentand true to pnnciple. could not be dissuaded from telling the truth byarguments that doing so 'would, in a given situation or even in thelong run. do more harm than good for such a person telling a liesimply IS the greatest harm and cteavmg to the truth is the greatestgood

The foregoing cancature intended simply to clarify is notrepresentative of intuitionists generally indeed an intuitionist canmake policy judgments with tools functionatty indistinguishable fromthose of a utilitarian The great modern Protestant theologian ReinholdNiebuhr. for example, argued that the traditional distinction betweensaving grace and common grace has been e>;aggerated. i e that a goodmeasure of one s status in the eyes of God was one's work for thebenefit of humanity (Niebuhr 1965 123-125) Niebuhr remains anintuitionist because for him the fundamental value is still one s statusin the eyes of God. not the greatest good for the greatest number Heseeks the latter for the sake of the former, not for its own sake

Actually just as the apparently utilitarian follower of Niebuhr isreally an intuitionist the apparently intuitionist fanatical truth-tellercould be a utilitarian, if he or she selected truth-telling not because itIS Itself the highest good but because it will result in the greatestgood for the greatest number A communist therefore, who believes onthe basis of rational analysis that faith in the ability of a centralgovernment organization to collect from each according to his abilityand to distnbute to each according to his need will accrue to thegreatest good for the greatest number is a communist utilitarian Bycontrast, a communist who adheres to faith iit the virtue of govern-ment power to control such collection and distnbution without regardto the evidence supporting or refuting such a test is a communistirituitionist This may be a controversial statement sinre few if anycommunists will agree that they are intuitionists To balance thescales, note that capitalists may be of either fype as well the typewho believes that free enterprise is tor the overall greatest good(utilitarian) or the type who believes ^hat free enterprise is theoverall greatest good (intuitionist)

There are some apparent problems vith utilitarianism and its"overa'l greatest good definition First, it must be conceded at oncethat al fundamental yalues even 'the greatest good for the greatestnumber" are in the final sense intuitionist One cannot prove thatbenefitting humanity is better than sl-aughtenng humanity withoutreference to some fundamental value based on faith or on humanprejudice It ig after ali. a human prejudice that makes us feel thatbenefittmg humanity is more important than benefitting all living


things even if humanity, as compared with for example, cabbages,came out somewhat worse off Were cabbages articulate they wouldprobably disagree Indeed, not all people do agree that "the greatestgood for the greatest number" is the ultimate value some intuitionistsbelieve that the law of God can conflict with the benefit of humanityas usually defined ( le , with respect to earthly life), and that theformer takes precedence So the premise that one should maximize thewelfare of humanity is also intuitively held, but nonetheless we do notconsider this to be an "intuitionist" philosophy

This IS somewhat arbitrary, but there is a rationale While it isobvious that theories as to what will produce the greatest good forthe greatest number can be as numerous as the human population, atleast in theory "the greatest good for the greatest number" canprovide a common ground for discussion, since it does not by defini-tion exclude any human value Any intuitiontst philosophy, by defini-tion selects a particular value, or constellation of values, but in anycase selects a finite number of values as critically important to theexclusion of others The intuitionist who chooses truth-telling aboveall other values will choose it above avoidance of pain, or loving one sneighbor, or developing human potential, everv time The intuitionistwho believes that each human life is absolutely sacred beyond measuremust, if honest and consistent in his or her fealty to that principle,choose life over liberty and happiness even if it means sacrificing anentire world to torture and slavery in order to avoid the death of oneperson Otherwise, if one is willing to kill in order to achieve v/orldhappiness, one is not absolute in one s respect for the sacredness oflife, but IS willing to subject the question of killing to rationalcalculation in terms ot other values, such as world happiness

Furthermore, if there is no common ground, as in the utilitariantest, there is no basis upon which to re|ect outrageous intuitionsHistory gives us all too many examples of fanatics whose sincerelyheld beliefs overcame all respect for individual dignity liberty, andself-determination as they pestered, brainwashed, or tortured theirneighbors until the victims accepted the favored variety of salvation,or died resisting Of course, a utilitarian approach could also placeeternal happiness in its scales, weight it heavily, and use it as ajustification for doing ternble things to people But utilitarianism atleast takes debate to the second stage, i e how do we weight therespective values we use to define "the greatest good for the greatestnumber"'? It does not close off debate after the initial premise isselected, as some intuitionist choices for example. "I merit salvationby dying in battle, all else is secondary or worthless '

Ethica' An<Vys'S m Pubhc Policymaking 447

Jeremy Bentham s original formulation of utilitarianism, of coursewas presented tn terms of pain and pleasure not in the highty elasticterms we have been using {Bentham. 1948 [1789]) More modernformulations gam in value-inctustveness what they lose in clarity andspecificity That such formulations offer at least the possibility of afully inclusive range of values, with the weight of each value to bedetermined before the philosophy is to be applied, gives their status apotential common ground for discussion that intuitionist philosophiescannot match Since valueinclusiveness is utilitarianisms greateststrength, the modern more elastic formulations are more useful (SeeRtley [1985]. who actually finds much of his own "modern" formulationimplicit in John Stuart f^ill s writings)

Utilitarianism has often been subjected to the following kind ofattack assume that one could assure the greatest good for thegreatest number by the extended torture of an innocent child If. saysthe attacker it were somehow incontrovertible that, by some clear andagreed-upon definition of the greatest good some v 'eird situationwould indeed produce that result a utilitarian would be required tocondone or even if necessary to perform that torture Given thisresult, intuitively unacceptable to most people, utilitarianism itselfmust be unacceptable as a philosophy or as a guide to ethicalbehavior

There are various answers to this objection One answer is thatIt IS not necessary to defend a useful philosophy against any hypo-thetical situation whatsoever, no matter how unlikely, and this one isindeed unlikely Another answer is that the hypothetical incorporatesm its assumptions preconditions that are inconsistent with thephilosophical system that is being tested that is. for the situation aspresented to exist, the surrounding conditions must already contradictsound utilitarian pnnciple. and therefore the hypothetical poses anillegitimate and invalid test (Gewirtz 1982) A third somewhat weakerargument depending on stretching still further the already very elasticconcept we have been using to define utilitarianism and then requiringcertain arbitrary decisions about its nature is that the long-termpsychological costs to a society whose benefits derived from such aterrible cnme would make it impossible for such a crime truly toproduce "the greatest good for the greatest number"

The foremost modern contractarian, John Rawls. offered hisversion of contractananism as an alternative to defenses of utilitarian-ism or retreat to intuitionist philosophies (Rawls. 1971 60ff) Here wedepart from our practice of assessing whole genres of ethical premisesnarrowing our focus to the Rawls version of contractananism simplybecause his great contractanan predecessors Hobbes Locke and


Rousseau, do not leave us with pnnciples that can be describedbriefly "Locke's ethical statements." for example, "point in manydirections at the same time" (Laslett. 1960 95) Laslett cites Warrender(1957) for the interesfjig proposition that Hobbes "is not obviouslymore contradictory than Locke" (Laslett. 1960 103) Since the presentpurpose IS to be able to trace ethical premises to policy choices, onlyRawls can be dealt with briefly enough to illustrate the process

Rawts proposed that one could derive acceptable ethical premisesby imagining a convocation of individuals rendered impartial by certaintypes of temporary ignorance about their stations m life, so that theirdecisions would not reflect what would otherwise be most advantageousto their class or status These tndiwduals would then select rules forthe operation and governance of society rules that would be in theirown best interests considering they did not Unovj to which class orposition they would be returned after the convocation and rulestherefore that would be in the best interest of humanity regardless ofclass or position Rawls proposed that the contract" to which theyv/ould agree would consist of two rules first, that the liberty of eachwould be the maximum possible without endangering the liberty ofeach other, and second, that inequalities in society should be struc-tured so that they work to the benefit of the least advantaged (Rawls.1971 302) The claim made for a contractarian theory such as Rawls sIS that It IS value-mclusive not depending on an arbitrary commitmentto some values at the expense of other values and therefore canprovide common ground for discussion, while it does not countenancepolicy choices of the intuitively reprehensible sort, such as tortunng achild for the benefit of everyone else-or. more realistically, per-mitting a society to exploit a disadvantaged minority Some cnttcs ofRawls. however dispute the first claim, arguing that although Rawls s"veil of ignorance" could shield the members of his imaginary convo-cation from class interests and prejudicies. it could not preventRawls's own implicit prejudices from influencing the result In the wayhis rules work out. his socfety evinces an excessive tilt towardequality and away from respect for the rights of the individual todevelop personal potential which, it Is claimed, reflects Rawiss ownpersonal prejudices and is therefore not truly value-inclusive (For aferocious and compelling attack on Rawls. see Bloom [1975] Bloomrejects the categories we use here, calling Rawls s teaching onlyutilitarianism made contemporary" and utilitarianism itself only a glosson Hobbes and Locke [Bloom. 1975 657] Nothing in his article.however, persuades against the use v e are making of the categorieshere)

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Whether or not such criticism of Rawls is valid, his principlescan easily be used to illustrate consistency problems in ethicalpolicymaking. For example, Robert Moses changed the face of NewYork with his highways but destroyed neighborhoods in the process. Inopening Long Island to the poor for parks and beaches in the 192O's(decades before Rawls himself wrote his treatise), Moses might havebased his policies on an explicit and conscious Rawlsian commitment torestructure society so as to benefit the least advantaged. (I ampurposely oversimplifying this history, as described in various places inCaro [1974:i20ff] to enhance the clarity of the illustration. Actually,Moses is accused, persuasively by Caro [1974:318-319] of excluding thevery poorest from Long Island by various policies. However, Mosescertainly did open the Island to much poorer people than had beenpermitted access previously. For argument's sake, assume he opened itto the poorest.)

Later, in deciding whether to build the Gowanus highway anddestroy Brooklyn neighborhoods, and whether to build the Cross BronxExpressway and destroy Bronx neighborhoods. Moses could have framedthe problem as one of utilitarian "greatest good for the greatestnumber" versus Rawlsian "no exploitation of a disadvantaged minorityfor the benefit of the majority." That is to say, although someneighborhoods wouid be destroyed, the usefuiness of the highwayscould have conferred a great enough net benefit on New York City asa whole to justify this construction in terms of a utilitarian calculus.However, the need to further disadvantage the residents of Gowanusand the South Bronx (poor people who were thus already in society's"least advantaged" class) in order to construct the highways, wouldserve to prohibit their construction if the problem were assessed inRawlsian terms.

Since he had (in this somewiiat imaginary illustration) justifiedhis earlier policy of opening Long Island to the poor on the basis ofthe Rawlsian premise that society must be restructured to benefit theleast advantaged, Moses could not now in this iatter case choose theutilitarian route, at the expense of the least advantaged, withoutabandoning his own eariier stated" principles. Since in fact as far aswe know Moses never formulated any principles of ethics to governhis poiicy choices, he was free to convince himself in each case thatthe public interest, defined conveniently for each occasion, justifiedcourses of action that rode roughshod over estabiished procedures andsometimes over peopie. But since the "pubiic interest" rationaiizatlonremained totally available to him, he was able to retain a good seif-image nonetheless, one which would have been harder to retain,consistent with his policies, had he been forced to recognize that the


guiding motivation behind those policies was not the public interest,but rather his own empire-buiiding drives

Some may argue that for Moses to have held to consistent ethicalpremises over the several decades in question would have manifested aserious deficiency in personal grovrth Such an argument misses thepoint had he articulated his ethical premises at the beginning, hemight have developed and changed them later, but in an examined,conscious way

Policymakers who do attempt to identify their own fundamentalethical pnnciples may find that they come from religious beliefs,utilitanan philosophies, or elsewhere But once they have identifiedtheir own pnnciples. they can no longer turn to alternative andcontradictory principles to justify what may be the more convenientcourse of action, when their own pnnciples demand the less con-venient course of action The discussion that follows, on abortion andthe death penalty, ts intended to provide an illustration of the kind ofanalysts that reflects ethical thinking, and precludes unexamined butconvenient contradictions

CASE STUDY ABORTION AND THE DEATH PENALTY

The ferocity and violence that frequently characterize debateover these two issues stem from the fact that strongly held valuesunderlie the opposing points of view Those values, however, are notalways made explicit, so neither party to the debate is necessarilyaware that the other is operating out of fundamental ethical principleswhich each could respect, although their respective basic principlesdiffer The worst misunderstandings probably arise out of debates tnwhich one party takes an intuitionist position and the other takes autilitarian position It is a truism that western religious traditionshave profoundly influenced our society Their most direct reflectionappears among the various intuitionist points of view, although not allintuitionists admit to religious antecedents and some utilitarians andcontractarians do

While the intuitionist/utilitarian conflict creates misunder-standings if the two sides do not understand each other's premises,when those premises are presented clearly, that match-up can produceone of the most elegant of the various confrontational patterns Thetype of intuitionist frequently influenced by the religious traditionsmentioned above, whose argument is informed by a commitment to theabsolute sacredness of human life will, in this particular formulation,oppose both abortion and the death penalty This is the position forexample, consistently put forward by the New York State Catholic

Ethical Analysis in Public Policymaking 451

Conference, the lobbying arm of the Catholic bishops of the State ofNew York (New York State Cathoiic Conference, 1987). The sym-metrically opposite position is that of the utilitarian who believes thatthe costs of abortion and the death penalty, in terms of pain,injustice, and damage to society's respect for life, are more thanoutweighed by the benefits, in terms of the reduction of those verysame elements. But the intuitionist will not be persuaded by theutilitarian's arguments based on the benefits, even if (as is rarely thecase), the intuitionist concedes that all the claimed benefits wouldaccrue. To the intuitionist, nothing, no matter how valuable in its ownterms, can justify violating the prohibition against the taking ofInnocent life, whether it be the life of the fetus or the life of thestatistically inevitabie innocent victim of capitai punishment. Even thedeterrence argument for the death penaity, were it accepted as valid,wouid not suffice for many intuitionists, who could not accept their.own participation in the taking of life, through acquiescence in theState's policy.

The religious arguments against the legalization of abortion andagainst the death penalty which are most difficult to answer depend,in their purest form, on the premise that the sanctity of life isinfinite and may not be weighed against other values. The Talmud, forexample, states that he who saves a single human life is regarded asthough he had saved a universe (Sanhedrin. 4:5, The Mishnah, p. 388).No arguments about deterrence or justice can very well persuadesomeone who must equate executing a human being-any humanbeing-with destroying a universe. A fortiori, for one to whom a fetusis a human being, no argument about "a woman's right to control herown body" or any other argument, indeed, can support a decision todeclare, as a matter of State policy, that abortion is legal. In fact,one who single-mindedly applied the Talmudic principle would havegrave doubts about legalizing abortion even if he or she were notnecessarily convinced that a fetus is a human being, since anotherTalmudic principle speaks of making "a fence around the Law" (Aboth1:1 The Mishnah, p. 446), meaning that one should not even comeclose to violating a biblical command, and surely a fetus is no morethan nine months away from being a human being. This last argumentis by no means without support in today's world, where science andtechnology have made us capable of sustaining life in babies withcongenital defects so severe that they would have had no chance ofsurvival in previous eras. In the years since abortion has been legal inthe United States, controversies over withholding iife support frominfants with birth defects have proliferated, and it seems to someobservers that it has become more acceptable to withhold life support


in such cases because of the decrease in respect for the sanctity ofhuman life that the acceptance of abortion has furthered (Stimson.1979 72. 137-142)

This absolutist "pro-life position is relatively easy to lampoondo we bar the automobile because of highway accidents that takelives' Do we outlaw electricity because from a statisticai point ofview It IS inevitable that some children will stick their fingers intosockets and electrocute themselves"^ And indeed, the very Talmudictradition from which the foregoing pnnciples were taken is much lessabsolutist, hardly mentioning and restncting. but not barnng abortion(Feldman. 1968 261-262. 275. 284-294. Luker. 1984 12 note) andrestricting, but not barnng. use of the death penalty, e g "Any courtthat condemns to death one man in seven years is {branded as]destructive" (The Code of Maimonides. Book 14. Ch 14. p 40)

The orthodox Roman Catholic position is an absolute bar againstabortion (Charles. 1982 17-18, 156. 477. Extracts from the Address ofPope John Paul II at the Opening of the 3d General Conference ofLatin America Bishops. 1979. begining at page 463 Recent, as well asolder, papal pronouncements preclude abortion even when necessarv tosave the life of the mother See Harnson. 1983 292 n 29. and Luker.1984 59 Clearly there are other Catholic viewpoints See. Hallett.1983 92-96 and Curran 1983 133 )

New York State's Governor Mario Cuomo, who considers himself agood Catholic and is conversant with Catholic theology, argued that itIS unethical to impose one's religious beliefs on others with respect tothis issue, and therefore supports legalized abortion, although herejects it personally as an ethical alternative (See Excerpts fromAddress by Cuomo at Notre Dame," New York Times. September 141984 A 21 3 ) Some of my legislative colleagues who are practicingCatholics take a similar position But to the more orthodox RomanCatholics among mv colleagues, and outside the legislature, a fetus isa human being, and therefore abortion is murder No argument basedon suffering or difficulties exacerbated by making abortion illegal canpersuade one who follows the orthodox Church position on thequestion to accept legalization of this 'taking of innocent human life "

Those to whom such moral absolutism is anathema might considerthat rational arguments can usually be found for most points of view.and can be used to attack the intuitionist position on any given issueNo doubt the legislators who pleaded for the canneries' in the 1912New York State Assembly debate on a bill requinng one day off aweek for women and children argued that the women and childrenreally needed the money that they might earn only with a seventh dayof work and that if the cannenes were forced to dispense with them

Ethical Anaiysis in Public Policymaking 453

for the o^ie day, they might be forced to close, throwing out of workand into the direst of poverty the very people the tecjisla\\on ^ (asdesigned to help. Sometimes only moral absolutism, as then Assembly-man Al Smith exhibited that year, can supply an answer to the hubrisof intellect: "I have read carefully the commandment 'Remember theSabbath Day to keep it holy,'" he said. "I am unable to find anylanguage in it that says, 'except in the canneries'" (Caro. 1974:124).Who is to sa-y that \he iuYure may not show the CathoVtc Conterenceto have been the true morai progressives in our debates, as Smith-itis clear to us now-was in 1912? •

But the utilitarian perspective appears to offer the more respon-sible position to most legislators (including the present writer), judgingfrom today's legislative debate on these issues. Most legislators whoregard their responsibility as the effort to maximize human happinessand minimize human misery appear to premise their policy choices onutilitarian cost-benefit anaiysis, which is not compatible withintuitionist moral absolutism, even one as life-affirming as tiiat whichmakes paramount the sacredness of human life itself. Cf course, manyutilitarian cost-benefit analysts could argue, persuasively, that theirphilosophies also make paramount the sacredness of human life, butthey express their commitment to that sacredness a different way: notby prohibiting the abortion of a fetus, or the execution of a personconvicted of murder, but by attempting to assure the highest qualityof life for the general population. As noted above, however, thisrequires an assessment of a wide range of factors, and thereforeprecludes the possibility of decisions made on the basis of a singlevariable, i.e., does the policy involve State complicity in the taking ofany innocent life? (It would also bar decisions made on the basis ofan arbitrarily-selected small number of variables. Singie-variable orsmall-number-of-arbitrarily-selected-variable assessments, to recapdiscussion above, characteriie UUuitioaist approaches, a\ teas\ at \heirfundamental level, although, as noted, basic intuitionist premisessometimes lead, not arbitrarily, to highly complex, multiviariatedecision-making matrices.)

Several otiier confrontational patterns pit various kinds ofutilitarians against each other, but when they differ with each other,at ieas\ they can \\rt6 some common ground and trace their d'lsagree-ments to factual disputes. Does the death penalty kill more innocentswrongly accused than save more innocents by deterring potentialmurderers from killing them? Does legalized abortion encourage morethan enough abortions to make up for the mothers killed in furtiveself-abortion attempts or "back street" jobs? Or if the death count isthe same, or unknowable, or slightly higher, do the qualities of justice


and respect for the individual benefit enough from one policy choiceor the other to balance the scales'? For the sanctity-of-life intuitionistnothing can balance the loss of human life in which the intuitionist.indirectly through the State, has acquiesced, not even the saving ofanother human life For the State to take or to condone the taking ofa human life, to this kind of intuitionist. is unacceptable notwith-standing any other factor For the cost-benefit utilitarian some thingscould "balance the scales", utilitanans differ however over whetherthe benefits of death penalty statutes and legalized abortion qualifyIndeed, a common position is that the latter do and the former don'tFor that reason, some may have found may arrangement of thisdiscussion puzzling or annoying It was presented this way in order tohighlight the inconsistent positions held by some, and to encourageothers to make more strenuous efforts to identify the common themesthat may underlie the positions they have taken, but which they neverpreviously analyzed in depth

Finally, there may be intuitionist positions in support of thedeath penalty and legalized abortion The argument that the deathpenalty doesn't work and is indeed counterproductive, even werecompelling evidence to be adduced in its support, would fail toconvince someone who believed as a matter of unshakeable faith thatjustice IS the highest goal, and that justice demands at least thepossibility of the ultimate retribution Similarlv. the argument thatlegalized abortion results in a general lowering of the society's levelof commitment to protect human life, even were compelling evidenceto be adduced in its support, would fail to convince someone whobelieves as a matter of unshakeable faith that everything going oninside a person's body must remain under her control in order to avoidinfnnging on her nghts as an individual, and such nghts extend atleast to the limit's of one s own body

It should be evident, at this point, that an explicit understandingof the ethical premises underlying one's own and ones opponents'policies on these matters will make discussion and debate moreproductive, and at the very least will help one to be more consistentin one's own point of view A legislator, for example, may consciouslydecide that the sacredness of human life is not to be weighed againstother social or economic values Further, whether or not a fetus ts ahuman being, that legislator may believe that it is at least closeenough so that to legalize abortion woutd intolerably damage oursociety's adherence to the pnnciple of that sacredness If so. thatlegislator would have at the very least a great deal of intellectualwork to do before convincing himself or herself to vote with his orher pro-death penalty or pro-war constituency Alternatively, and this

Ethicai Analyses m Public Policymaking

IS but one of innumerable alternatives a legislator may choose toaccept the cessation of brain activity as a definition of the termination of one s status as a human being This legislator may well find itdifficult to define as a human being a fetus of less than twentyweeks which is pnor to the onset of brain activity, and thereforemay not be able to justify legal opposition to aborttons perfortnedbefore that stage of pregnancy

The chart on the next page and its notes show common examplesof utilitarian, intuitionist, and contractarian posttions on the deathpenalty and abortion Of course, people s positions are rarely thatclear or simple Arguments are mixed and matched without regard totheir philosophical pedigree This discuss'on and the chart, reflect anattempt to sort them out

CONCLUSION

The preceding discussion of abortion and the death penalty waspresented as if legislators are actually aware of and explicit aboutthetr ethical premises Of course thts is not necessarily the case Insome instances, they may consciously appiv ethical standards to certainissues (perhaps the above two) but it may not occur to them to applythe same standards to the range of issues which they must address Ifindeed, a policymaker at any level is a utilitarian, committed to policychoices which produce the greatest good for the greatest number thepolicymaker must be able to argue convincingly to himself or toherself that a policy choice in his or her own interest but againstwhat the policymaker honestly perceives as the immediate publicinterest is nonetheless justified by the long-term public interestSometimes, this standard of integrity requires the policymaker torelinquish his or her position, as when Cyrus Vance was required bythe dictates of public policy (as he saw themi to lie to our WesternEuropean and Japanese allies dunng one phase of the Iranian hostagecrisis Lying in that manner was so offensive to Vance that he felt hecould not remain as Secretary of State after having lied he did infact resign (French. 1983 5-60) George Michaels, who served in theNew York State Assembly felt that his conscience dictated a decidingvote in favor of legalized abortion m 1970 although he knew it wouldend his political career representing Auburn in upstate New York{New York Times. 4/10/70. 1 83 6/5, O 40 4 6/24/70 35 1. 8. 11 70.23 2 11/5/70 43 3)

But consistent ethical pnnciples rarely dictate this kind of resultas IS illustrated by a possibly apocryphal story told about the lateUnited States Senator Wayne Morse of Oregon known for his courage


Typical Legalized Abortbn and Death Penalty Argumentsby Ethicai Category

Key

+ la =

tor death penaltyagainst death penaltyfor legalized abortionagainst legalized abortiongreater than

Utilitarian

-la

dp -dp

B>A, D>C B > A C > D

A>B D>C A>B.C>D

Intuttionlst

+la

-la

-dp

B - C

D * C

-dp

B + A

D - A

A The deaths of fetuses, the misery that willresult from the lessened respect for lifecaused by legalization of abortion

B the suffering and deaths of mothers experi-encing illegal abortions, the sufferings offamilies with unwanted children

C lives saved by virtue of fncreased respect forlife based on State example of refusing totake tife via death penalty, lives of wronglyaccused saved

0 lives saved by deterring rationaily calculatingpotential killers, mentally healthier societythat is confident that appropriate retribution15 avaiiable

A Sanctity of human life State must not takehuman life innocent or not. or sanctity ofinnocent human life no matter how fewinnocent lives of the wrongly accused wouldbe lost, some will be. and even one would beunacceptable

B sanctity of personal integrity requires, atminimum, control over one s own body, and afetus is part of a woman's body, not aseparate human being

C sanctity of justice requires at least theavailability of a death penalty, retribution Isa legitimate part of justice, death penalty isa legitimate form of retribution

D a fetus is a human being with an individuallife

Rawfsfan Contractorfan A A fetus IS a member of the least advantagedgroup

B a poor woman desiring an abortion is amember of the least advantaged group

C a potential victim of a pubfic kilfer (theState) IS a member of the least advantagedgroup

D a potentiai victim of a private i<iller is amember of the least advantaged group (andmore private killers are deterred thanencouraged by the death penalty)

•This utilitarian position includes the argument that white very few innocent.wrongly-accused lives are taken by the State v pth a death penalty, very manyinnocent fetal lives are taken by abortion

Ethicai Analysis in Public Policymaking 457

independence, and integrity. It is said Ihat on one occasion when heguest-lectured at Columbia Law School, a student asked him why, sincehe was a forceful and outspoken advocate of free international trade,year after year, he invariably voted for the wheat tariff. "Son/' hesaid, "it's true I like free trade. But I also like being Senator fromOregon!" Few familiar with Wayne Morse's history would wish he haddone otherwise. A perfectly legitimate utilitarian calculus could havejustified that vote on the basis of all other things it enabled him toaccomplish, and any decisionmaker may justifiably make similarassessments, assuming a utilitarian stance.

Of course, this can be a slippery slope, given the naturalpropensity to rationalize what is in one's own interest. What has beenproposed here, though, is that each policymaker limit the range fromwhich to draw rationalizations to ethics drawn from one particularethical starting-point, so that at least the field of possible rationali-zations is not infinite. If the policymaker decides tiiat the source ofhis or her behavior shall be one of the morally absolute schools ofintuitionism, that policymaker cannot then justify one violation of thatcode for some perceived net benefit to society. If the policymakerchooses one of the usual cost-benefit varieties of utilitarianism, thatpolicymaker should not, then, turn to a popular religious tradition tojustify to himself or to herself departures from the dictates of his orher own utilitarianism, (If the policymaker has carefully reconciled thetwo, then of course the religious tradition will not depart from thedictates of the policymaker's brand of utilitarianism.) If a contrac-tarian of the Rawls school, the policymaker must be prepared toaccept some sacrifice of majority interests for the benefit of thepoorest members of society. If he or she is a legislator happilyrepresenting a disadvantaged district, someday that legislator may haveto be prepared to sacrifice the interests of the majority in thatdistrict to those few who are the very worst off of all.

It should be apparent that utilitarian, intuitionist, and contrac-tarian principles can ail grow rationally, and consistently, out ofpremises rooted in one of the three. Consistency is not necessarilysimplicity. The real theme of this exercise is ethical analysis, notconsistency. Honest analysis which looks toward consistency will findit in sufficient measure.

it is hardly my intention to argue that explicit and consciousawareness of ethical premises will produce uniformly ethicai poiicychoices, by anyone's definition or even by everyone's various defini-tions. Legislative bodies, as well as bureaucracies, will no doubtcontinue to "muddle through," as Charles Lindblom noted iong ago(Lindblom, 1959). Ethical analysis is for the individual policymaker's


conscience it is not a group process Even for the individual, it willrarely be possible to perform as clearly as in the examples chosenhere They were chosen, after all. for their clarity The effort bypolicymakers to use ethical analysis, within realistic limits, should,however, produce incremental improvements With respect to externalcontrols on corruption and abuse in government, a general awarenessIS emerging (one may hope) that whistle-blowing, vigorous monitonngof government programs, and other efforts to reform government are aconstant necessity, that the persistence of waste and dishonestydespite these efforts is no excuse to abandon them, and that withoutconstant pressure for reform, corruption can grow to a point at whichthe entire system becomes dysfunctional There is some awareness thatreform efforts which result in a government that is eighty-fivepercent honest, rather than less so. are worth maintaining

There needs to be a similar awareness that ethical education isalso worth maintaining It. too. will improve the honesty level ofgovernment performance, usually on a more subtle level, and theobvious fact that it cannot produce a perfect or even a near-perfectresult IS no reason to avoid making the effort

We need to do both to enforce accountability by outsidepressures for reform, and to achieve compliance with ethical standardsby providing policymakers with educated consciences educated toarticulate consciousness of ethical values they already own

REFERENCES

Aiken. Henry D 1962 fleason and Conducf (New York Knopf)

Bentham, Jeremy 1948 The Principles of Morals and Legislation (NewYork Hafner Publishing Co )

Bloom. Allan 1975 "Justice John Rawls vs The Tradition of PoliticalPhilosophy " American Political Science Review 69 648-662

Caro. Robert 1974 r/7e Poiver SroAer (New York Grove Press)

The Code of Maimonides [Translated by Abraham Hershman] 1949(New Haven. CT Yale University Press)

Charles, Rodger S J 1982 The Social Teachings of Vatican II (SanFrancisco Ignatius Press)

Ethi( . •' An^iys-s iri Public PoUcymakinq 459

Curran. Charles 1983 D'recf'on'^ m Cpthol'c Social EthicsDame IN Universitv ot Notre Dam« Press!

Feldman. David 1981 Refon^vnq Government (New York WilliamMorrow and Companv)

Feldman David 1968 S/rr/-Confrc'a'Trf Je'v/s^? Laiv (New York NYUPress)

French Peter 1983 Efhics -n Govemm'^nf (Englewood Cliffs NJPrentice-Hall)

Gewirtz Paul 1982 The Junsprudenne of Hvpotheticals Journal ofLegal Education 32 120

Hallett Garth L 1983 Christian Moiai Reasoning (Notre Dame INUniversity ol Notre Dame Press)

Harrison. Beverlv 1983 Our R/g/ir ro Choose (Boston Beacon Press)

Kennedy. John F 1956 Profj/es ci Courage (New York Harper &

Kierkegaard Soren 1983 Fear and Trembling [trans bv EV and EMHong] (Pnnceton NJ Princeton University Press)

Laslett Peter 1960 'Introduction In John Locke Two Tieatises c-fGovernment (New York Cambridge University Press)

Leys. Wayne 1952 Ethics fa -QI-CV D'^asions (New York PrenticeHall)

Leys Wayne 1943 "Ethics and Administrative Discretion" PublicAdministration Review 3 iO-?3

Lindblom. Charles 1959 "The Science of Muddling Through PubhcAdmuvstiation Re-'iev- 19 79

Lukef Kristen 1984 Abortion and the Politics of Motherhood(Berkeley and Los Angeles University of California)

The Mishnah [trans by Herben Danbv] 1933 (Oxford England OxfordUniversity Press)


New York State Catholic Conference 1987 'Legislative Agenda 1987"(Albany. New York)

Niebuhr. Reinhold 1965 Man's Nature and His Communities (New YorkCharles Scnbners Sons)

Payne, Bruce 1981 "Devices and Desires Corruption and EthicalSenousness" Pp 175-203 in Fleischman Liebman. and MoorePublic Duties The Moral Obligations of Government Officials(Cambridge. MA Harvard University Press)

Rawls. John 1971 A Theory of Justice (Cambridge. MA HarvardUniversity Press)

Riley. Jonathan 1985 On the Possibility of Liberal Democracy"American Political Science Review 79 1135

Stimson. Robert and Peggy 1979 The Long Dying of Baby Andrew(Boston Little. Brown and Companv)

Warrender. J 1957 The Philosophy of Hobbes His Theory of Obliga-tion (Oxford. England)

ethical analysis in public policymaking

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