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Prof. Glenn Cohen is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also[…]

Helping someone in desperate need is an ethical choice, yet it is a choice we would all make without hesitating, i.e. thinking a single thought. The reason, according to Harvard Law Professor Glenn Cohen, is that ethical choices start in the gut. Our intuition, programmed my millions of years of evolution, instructs us what to do without needing rational deliberation. But at times, especially when making an ethical decision implies a sacrifice on our behalf, rational deliberation is necessary, and likely inescapable.

Because humans have given extensive thought to hypothetical and real-world ethical dilemmas, entire schools of ethical thought have developed. Perhaps the most well known of these schools are consequentialism and deontology, and within these, utilitarianism and Kantianism, respectively.

Glenn Cohen’s book is Patients with Passports: Medical Tourism, Law, and Ethics.

Glenn Cohen:  When thinking about an ethical problem first of all you should start always with your gut intuition. What's my intuition about this case? You never stop there. You have to keep pushing yourself to say why do I think this. First thing to do I think is to think about cases that are somewhat similar and somewhat different. Sometimes it's varying one fact. So a great example from this classic one in philosophy is the trolley problem. There's a trolley coming at – you're the conductor of a trolley; it's coming at a branch in the road; you're heading towards five people but if you flip of the switch you can redirect it so that it kills only one person. What should you do is the problem.
Well, when you start with that case we then begin with variations: what if it's three people versus one person? What if in fact there are three tracks and not two and one of them would lead to your own death for example? What if in fact instead of having to just flip the switch you'd have to push a fat man off a bridge in the way of the trolley? So these are all variations in the case and you begin by thinking does my answer change by that variation? Why would my answer change in that variation? Can I derive a principle from this? So there are principles like action versus inaction. The greater versus the fewer. The question of how at proximity I am. Did I cause the problem to begin with or am I just coming on the scene at a time when I can help, for example? So you push yourself to derive principles. You then test those principles out in new cases that are alike and unalike again. That's one way of approaching the problem.

The other is a much more top or down way, which is to start thinking about big schools of thinking in ethics. And really the big schools are on the one hand consequentialism, of which utilitarianism is probably the most common, which says that which maximizes good is the right thing to do. So do that, which maximizes good and we aggregate across people. We think of individual as containers of utility in the classic utilitarianism. The second big school is deontology, would of which the most famous version is probably Kantianism. And here there is an idea that even if something would maximize good states and affairs would produce the most welfare, we sometimes have obligations to do something different. We have constraints in what we can do. And for Kant it was a question of whether the maxim behind your action could result in a universal law of nature. That was his test or one of his tests under the categorical imperative. So Kantians think about things like rights, they think about things like dignity and they think about it in a way that freestanding from welfare and utility.

And the third big division I would call virtue ethicists who really have their routes all the way back to Aristotle. And these folks think that instead of thinking about the right or the good instead we ought to think about character. We ought to think about what it is to be a virtuous person. What are the virtues of being a good human being? Just as we can say a piece of clothing was excellently made or a horse is an excellent horse, they think that there are characteristics of human beings that make human beings better versus worse. And when we think about what to do we ask ourselves what would a virtuous agent do in this situation? So that's another way of approaching the problem a little bit more abstracting. And in an ideal world with those two approaches kind of meet in the middle. And we think about also other kinds of problems we've encountered in our lives and what's helped us thinking about that.

So in the ancient Greeks there is a famous philosopher who was known for actually dressing in rags and walking around ancient Athens. He was kind of known as a crank and a fool and we had like a lantern and he was struggling always towards the truth. And I think that's really where we are. It's the ethicist. We have to realize that we're struggling through these conversations. We can't avoid making decisions. Where in a position where we have to decide. This is true of the courts also in their faith of particularized dispute they have to decide who gets the kidney? Do we allow abortion to go forward? Are we allowing people to commit assisted suicide, physicians to assist? These are real dilemmas and somebody has to make a decision. But even though we have to make a decision it's important to realize we're struggling towards it. We're constantly learning and constantly debating. We can think in abstract terms and think about these principles and policies and philosophies, which is all really good but it's important to also realize that we're situating. We are trapped to some extent by the possibilities of the world we live in. When we look at the history of reasoning about ethical questions, in particular the example of slavery in America, it's easy from where we stand to say this was a failing of moral imagination, a failing of moral athletics. These people were just unethical. But in reality I think the right way to think about it is these were people who were thinking about dilemmas in a particular world and a particularized world. That doesn't excuse them. We can still view the practice as wrong, but we have to also realize that a hundred years from now we may be the victims of this historical kind of judgment. It could be that our treatment of the animals, for example, the idea that we ate animals is viewed 100 or 500 years from now as barbaric, much the same way we view slavery or genocide or other kinds of horrible acts.

So this is to say we do the best we can. We struggle, we have to be humble about what we can figure out. It's not an excuse for not figuring out, it's not an excuse for not bringing ourselves best selves forward, but it's also to realize that in the cold light of historical judgment even the kinds of decisions we're able to make it will seem at times weak and as seen at times to the future wrong.

I think it's easy to think that people who have to worry and think about ethics are people like me who study it professionally or teach it. But in reality every day in your life you're probably faced with two or three ethical dilemmas. And you may become so habituated to what you do in the situation. Everything from do you give money to the person begging you on the street to do you tell a white lie to those of us who are professionals like medicine or law professional questions that come up on a day-to-day basis? This is just to say that to be more attuned, the more in the moment, live kind of a mindful life. There's a kind of ethical mindfulness that's really good.

And, you know, there's a well-known study that shows that studying ethics and thinking about ethics doesn't itself makes you a more ethical person. There was a famous study done by psychologists where people were given a task of studying up on they were theology students I think and preparing a sermon on The Good Samaritan from the Bible, a person who helps other people. And they engineer it so the person was late for whatever lecture they had to give. It was running out and there was somebody, crutches if I remember the experiment right, falling on the street. And the question was were those people who were given the task of preparing and thinking about The Good Samaritan more ethical and more likely to help a person than people who have been given a different task or thinking about a different thing? And the result was actually no they weren't particularly more ethical. They weren't less, which was good, as I recall the study, but they certainly weren't more ethical than helpful, which is just to say studying ethics is great but living ethics and putting it into your life and being ethically mindful is equally important. It's a question of being aware of the kinds of dilemma you're facing in a particular day, taking a moment out of your day to think about it, talk about it with others and think about how you can live a better life and be a more ethical person.