If there were a market in organs, we would be obligated to trade on it

I'm participating in a debate on the goodness of markets for the trade of organs on the Practical Ethics blog hosted by the University of Oxford. Nicholas Shackel has made a case that such a market would only be a benefit. Simon Rippon has objected that such a market would give rise to social obligations to make use of the market even when doing so would harm you. Shackel has responded that talking about such social obligations is unwarranted, because at most there would be an expectation to trade on the market, but never an obligation. I've chimed in and made use of David Lewis's work in Convention to show that expectations do sometimes lead to obligations, and it would in the case of a trade in organs (and, in fact, in any legitimate market).


Shackel believes that a market in organs would be a good thing, even for the poor people who are most likely to be the ones selling organs, because it allows the buyer to gain a kidney, greatly extending their life, and the seller to make a lot of financial headway. He describes this as a win-win situation. But believing that this is a fair trade is exactly which leads to there being obligations to trade on the market, as Lewis's framework shows.


A quick, simplified gloss on Lewisian conventions: there is a convention to do C (and we should do C rather than not) when almost everybody expects people in the relevant circumstances to do C (and expects people to expect doing C), prefer doing C given this expectation, and would prefer some other action C* if almost everybody expected to do C* instead. This gives rise to straight-forward obligations because when I act against these expectations, I frustrate everybody's ability to co-ordinate towards mutually preferred ends. This is all pure game theory to this point, so I don't expect you have much to object to here. So, for the organ market case, it would go: for any legitimate market, I expect that trading occurs on that market and I prefer there being trade on a market over no trade (otherwise there wouldn't really be a market), which covers the 1st and 2nd conditions. If there were no market, or if it were banned, I prefer no trade on it, like I do for the market for hard drugs or illicit weapons (the 3rd condition). Because the three conditions are met, there is a convention to trade on the organ market. Thus, if I am in the relevant circumstances -- needing money and having something to trade on the market -- there is a convention to make use of the market, and an obligation to do so, otherwise I am arbitrarily frustrating people's attempts to reach the type of scenario Shackel describes as win-win. But this means that a market in organs leads to at least some obligations.

Shackel is committed to this result exactly because he describes someone improving their economic condition through organ trade as a win-win situation. To deny that somebody would prefer trade to non-trade (denying the 2nd condition I outlined above, and the only plausible response) would mean denying that such an exchange, even at full market value, would be fair, and that would be to deny the good of the organ market. Shackel makes the claim that we have second-order norms on the fairness of expectations which would stop exploitation, and such norms are certainly present and in effect. But for there to be such norms describing even trade at full market value as an unfair expectation would mean that there are constraints on the fairness of trade which goes beyond what determines fair market value. Those of us who are more skeptical of the goodness of such a market have that option available to us, but Shackel does not.

Brom - 'Expressive-Communicative Function of Legislation'

Frans Brom asks us to consider the expressive-communicative function of legislation, where what some law does is to give voice and legal standing to some commonly held moral value, in contrast to two other ostentive roles for legislation, as a way to codify the dominant morality of a society, and as a way to modify behaviour in certain ways the legislators deem necessary. I will respond that I'm unconvinced that this expressive-communicative function (ECF), as Brom's short piece presents it at least, is distinct from the two other functions.

It is worth quoting Brom on the ECF at a bit of length:
"The interactive paradigm of legislation shows that law can form a point of reference in moral discussions. This is especially the case when legislation is based upon a societal agreement the impact of which is not sufficiently conceptualised in moral terms. Once this agreement is restated in legislation, the law becomes an authoritative source fr the concrete normative implications of this agreement. One could even say that the societal agreement is recreated into a moral framework for the public domain."
This is all well and good, but I think Brom needs to do more to seperate the ECF from legal codification and modification. His view seems to be that the ECF of a law is to give a moral framework wherein some value is given creedence, which in turn provides normative guidance that would be lacking if we were still arguing about what that value comes down to. I say that the first part of this falls under codification and the second under modification, that is, the ECF reduces to the cases where the codification of some moral position is such to modify behaviour in the jurisdiction away from other positions, which is hardly a strange effect of codification.

If codification happens, it is always the codification of one position among many. That position needn't be one which is actually endorsed by anybody (nor is it likely to be exactly like any non-legal framework, but never mind that). The fact that such-and-such a framework is the product of a code of laws carries with it the consequence that that framework now works upon everybody in the jurisdiction. Being under the effect of some law can't help but modify behaviour in its jurisdiction to the effect of encouraging actions in line with the codified framework (leaving aside the interesting case of dead-letter laws, which don't concern us here because they also fail to authoritively express the position of anybody, because they fail to carry authority). And so much the worse for different frameworks to the extent that they differ from the one enshrined in law.

So the normative implications of ECF are covered by the classical codification and modification views as well. There still is an issue of what exactly the target of the codification is, especially in the type of cases Brom draws attention to, where there isn't widespread agreement on exactly what the endorsed value consists in, like the intrinsic value of non-human animals in Dutch animal welfare law. An important point about vague concepts like these, which David Lewis reminds us of, is that while it's unclear where their applications start and end, it isn't that anything goes. Just as the boundary between blue and green is unclear and yet there are blues that aren't at all green and vice versa, so there are many things that might be an animal's intrinsic value and things which clearly couldn't. Pointedly, the type of view where animals have ethical value only in as far as they are valuable to people simply couldn't qualify. Thus, the position being codified is actually a range of what could count under the vague term. This means that you can still have sensible disagreement in the courts about, say, whether a law protecting the inherent worth of animals prohibits conditions where they are kept in good health but in extremely restrictive settings, since it's vague whether an animal moving in its distinctive ways is part of its inherent worth. But it stops acts which egregriously disregard the well-being of the animals involved. Once again it is important to note that the view in law needn't be the view anybody had prior to the passing of legislation, so the fact that the law covers a range of positions rather than any single one isn't a problem. It can gain support from everybody across that range (though that support is likely to be qualified) in that they agree that something like the law needs to be enacted.

Thus, the classical functions of codification and modification can do everything Brom recommends the ECF for: it can posit an authoritative framework with normative implications, and can do so in a way to accomodate vague values rather than precise positions.

Verweij - 'Moral Principles and Justification in Applied Ethics'

As is usual in this introductory collection, this entry by Marcel Verweij is very compressed and yet covers a lot of ground, so I'll do what I've done mostly and offer a comment on a particular aspect of the discussion I think can do with some expansion. Verweij concerns himself with laying out some reasons to believe that general principles can't do all the work that needs to be done in applied ethics. Be that as it may, I believe that there is some work which principles of the most straightforward and forceful sort can accomplish, and that is to put constraints on what courses of action we could rightly pursue. Vermeij's presentation gives the impression that this wouldn't be the case, because principles are supposedly too abstract to give clear guidance in concrete cases. However, a thickly developed concept like 'always be honest' can do exactly that, I argue.

The main difficulty with working with principles, as Verweij rightly points out again and again, is that it isn't always straightforward to see what they would entail. However, this is a problem of vagueness rather than one concerning a principle's normative force: if you could be clear about exactly what the content of a principle is, this problem would disappear, or it would become clear that it wasn't as useful as it at first appeared. Perhaps the latter turns out to be true of every principle, but we should hesitate before we conclude as much. If we could determine what would count as fulfilling the demand of a principle, and what a clear failure would be like, that would meet the challenge to provide concrete guidance. Perhaps the principle wouldn't tell you which course of action would be uniquely right, but it would filter the options by rejecting a number of candidates which would simply be unacceptable on account of that principle: that is what I mean with principles placing constraints on what we should consider right action.

The principle of 'be honest', by which I mean 'never intentionally deceive someone so that on your account they reason from false grounds' is an excellent example of how this can be done, because it is a principle which is established in a number of independent ways. Firstly, it is a principle with enormous standing. It is the one clear success of Kant's categorical imperative, for instance: it is simply inconceivable to have a situation in which people communicate without most things they say being true, because that would only lead to a failure in communication. Doing the same but in an entirely different way, David Lewis gives an analysis and vindication of a convention of truth-telling, that is, the regularity of people telling the truth and expecting others to do so, on game-theoretic grounds. And, different again, Elizabeth Anscombe held that there simply are no situations in which it is right to lie, though not as an absolute prohibition, but as a matter of fact which drops out of the fact that each of us rely so heavily on what we tell each other that the goods we might gain from deceit could hardly be goods of moral worth. Secondly, what honesty demands of us is perfectly clear in almost every case. We know very well what it means to tell the truth, and because deceitfulness is predicated on deceitful intent, we can't help but know when we lie. That is, there are clear success conditions on being honest, and a precise way to tell when you're being deceitful. There are debates and difficult questions about how far you should pursue it: Kant's insistence that you should tell the truth even to an enquiring murderer might not impress most people, but everybody can (or damn-well should) agree that it is not good in itself to deceive other people, and that it is not bad in itself to furnish people with the truth. The degree to which a course of action demands deceit is the degree to which it is to be avoided, and the contrary: this isn't a complete decision procedure, but it is an informative and concrete constraint on action.

Perhaps it is a mistake to appeal to principles to settle the question of what you should do in such-and-such a situation, but it would be too quick to move from that to a conclusion that principles can't offer guidance in real cases. They might not tell you everything, but given the appropriate success and failure conditions, principles can tell you to some extent at least what it is you should do.

Futher comment re: reflective equillibrium

Thinking back on my previous post, a comment on Collste's introduction to applied ethics, I've decided my treatment suffers from the same problem I see in Collste's piece. The discussion is too short to clearly distinguish two different uses of reflective equillibrium, one where RE serves as a structure for argument, the other where it acts as justification. So let me try that again.

First, RE as a formal tool: If a suitable course of action has been picked out, or one that you believe is suitable, you can try to explain why by showing how that action sits in a reflective equillibrium. That would consist in stating the various relevant factors, drawing out the conflicts between them, staking out a suitable give-and-take between these factors and indicating how the chosen course of action fits appropriately between them. To say it in a different but equivalent matter: for relevant facor X, determine how the other relevant factors Y, Z, etc. impact on the demands of X to determine X', being the demands X makes in this case compared to Y, Z, etc, and do so for Y, Z, etc. as well; the appropriate course of action C is one which fits X',Y',Z' and so on. The fact that the appropriate course of action is so is explained by it respecting all the demands of the relevant factors as measured against the others.

Of course, not every candidate course of action can fit in such a reflective equillibrium. If it doesn't, you could try to use RE as a method to find the right course of action. Let us say the most attractive candidate course of action C meets demands X' and Y', but not Z or even an appropriately modified Z'. There could be a change to C to make a C' which might fit the bill, or if no such change is forthcoming, perhaps a further modification to the apparent demands of the various factors, maybe making a X'' which leads to changed demands on Y' which makes a Y'' and a Z'' which a C or C' could meet. Because you have made moves to change your approach to the case, and have done so based on RE, RE has done substantive work here. This is different from the former case, where RE does just formal work.

So, to sum up in conclusion: where the course of action one picks is picked independently of RE, and RE is used to explain why that is the right thing to do, there RE only does the formal work of structuring the argument; however, you might be tempted to change your approach based on what would bring about an RE, and that would be to use RE substantively, to choose to do this rather than that, and even (in what Rawls calls cases of 'wide reflective equillibrium') to modify your approach in other relevantly similar cases.

Collste – 'Applied and Professional Ethics – an Introduction'

Göran Collste contributes to the MAE handbook with a bit of an overview off the field of applied ethics. There is a point about reflective equillibrium I am a little uncertain about, which I'll discuss here.

In discussing RE, Collste remarks that it can be used either as a structure for debate, or a form of justification, but not both. As I understand it, this is because if it is used as an organisational schema, anything contributed by RE to the argument can't be informative, but can only be a different way to portray the content of the various positions. I don't think that Collste's severely compressed discussion distinguishes the two positions sufficiently, so for my purposes I'll try to do so. From what little I know of him, RE in applied ethics seems to be a particular interest of Collste's, but I have only this short article of his to work from, so that is all I'll try to engage.

Collste's example is of introducing an expert opinion (a doctor's considered judgement) and a general principle (the principle of utility) into a discussion of how to respond to a particular problem (suitable treatment for neonates). He chose an intuitionist and principlist disagreeing with eachother to bring out RE's features, he tells us. I'm a little worried about his characterisation of the intuitionist approach and what that entails, which is the point I'll work from towards my characterisation of the two different uses of RE.

Collste first introduces the doctor's judgement as an intuition, and then as a considered judgement, but there is a lot of ground to cover between the two. A considered judgement is a mere intuition (a snap judgement) that has been supplemented with careful attention to the specifics of the case and what the various options entail, and so on. A considered judgement is the type of thing you can have in hindsight, whereas a mere intuition is the product of a moment's sensation. Collste is welcome to pick out considered judgements, the least flighty type of intuition, as what he means to contrast with a deduction from a general principle, but he then proceeds to give them short shrift in what follows. He states that if the doctor were asked to back up his conclusion, there would be nothing to point back to other than their own “intuition and practice, but not much more” (p. 80). But more than intuition and practice goes into a considered judgement. 'Intuition' in the sense of 'sensation' can pick out salient dimensions of the case (the quality which intuitionists claim makes expert intuition indispensable), but what makes an intuitive judgement considered is exactly the careful attention that is given to the possibilities along those dimensions. The precedents an expert can draw upon have content, after all: in a similar case this happened when such-and-such was attempted; thus, in our case, this or something relevantly similar will happen again; and so on. If nothing else, it includes the weighing up of consequences that experience has taught one to expect. When deciding between uncertain consequences, it's hard to deny the power of an appeal to a precedent, especially one where the implications are drawn out with an expert's sensitivity. Knowing what will happen in such-and-such cases is after all exactly what we have doctors for.

On my view there is still a clear difference between an intuitionist line and a principlist one. An intuitionist one is a product of the specifics of the case, whereas a principlist one abstracts over specifics and makes proclamations of general scope. For the utilitarian of Collste's example, no other dimension other than expected happiness is relevant, whereas the doctor's intuition can draw on every aspect of every suitable precedent. When both views are given a place at the table, then, they pull in different directions: the principlist insistence that everything can be decided on some general considerations, while the intuitionist brings the intricacies of the case to bear. One can see the different sides being argued as a gauntlet that some candidate response to the problem has to run through. As I see it, if the response can satisfy every side, then RE functions as an organisational schema, and if it doesn't, it serves as a decision making procedure. In the former, the response is cast as the product of an equillibrium between the demands of ones principles and the realities of the case, and in the latter, the promise of an equillibrium motivates revisions to the candidates and the various sides to the debate until an equillibrium is reached.