INTRODUCTION

The moral and practical issue that is raised by proxy consent is the issue of when one individual may make decisions about, speak for, and represent the interests of another. In the case of a fetus, or a young child, or a mentally retarded person, or an unconscious person, or a person in great mental distress, or a person who has been found “unfit” to perform certain obligations and duties, the individual whose interests are to be secured and rights protected is viewed as not in a position to, not competent to, make certain important decisions. The issue of proxy consent is one of who shall be authorized to make those decisions and what criteria should guide the proxy in making such decisions.

The issue of proxy consent can arise in many different contexts. We might be concerned with the financial responsibility of a senile individual. We might be concerned with the legal powers of a guardian with respect to his or her ward. We might be concerned with who will be best able to look after the interests of a minor child. In this chapter we are primarily concerned with the issue as it arises in the biomedical context, and in particular, as it arises with respect to children and their parents. Thus we are concerned with third-party authority to make decisions about the use of children in medical treatment and research.

In this essay I shall consider an argument that is often made in discussions of methods of influencing people's behavior. This argument states that control of one person by another is constantly taking place, but in an implicit and unconscious fashion, and that it would be preferable for control to take place on a systematic and explicit basis. Here is a small sample of these arguments.

There are those who know from the start where they are going and those who only realize after the journey where they have been traveling. I am one of the latter. I wrote about issues, problems, theses, as they occurred to me, as they provoked or baffled me, seriatim. My Ph.D. thesis was on the nature and justification of coercion, and two of my earliest publications were based on that work. In one I considered why those who choose under coercive pressures should not be considered to be acting freely (in spite of the fact that they would prefer to choose as they do, given their circumstances). In the other I considered the kinds of interferences with people justified by reference to their own good and when, if ever, such interferences might be justified. In both cases I was dealing with the choices people make and the significance and value of their making those choices in accordance with their own standards and preferences. I had embarked, without being aware of it, on a voyage circling that territory which I later came to think of as “autonomy.”

My first actual use of the term was in an essay in applied ethics. It was written at a time when there was much concern about issues such as psychosurgery, aversive conditioning, subliminal advertising, and drug therapy. I was asked by the Hastings Center to participate in a working group considering the ethics of various ways of influencing persons and their behavior.

In recent years the use of ways of thinking practiced by economists has provided the theoretical apparatus for attempting to clarify and resolve normative problems in a number of different areas of social policy. Among the areas in which fruitful work has been done are tort theory, voting behavior, constitutional choice, criminal justice, and the theory of property rights. At the same time, of course, economists have applied the tools of welfare economics to problems of allocation of resources in areas such as education, health, consumer choice, insurance, and natural resources. In all these areas – both traditional and new – there are two kinds of tasks at issue. One is the descriptive one of trying to explain various phenomena – why rules of liability are the way they are, or why they change over time, why a system of private property arose, why individuals make certain choices in the marketplace. The other task is to provide assistance in answering various normative questions – should manufacturers of various products be held strictly liable for accidents caused by defects?

The concept of autonomy has assumed increasing importance in contemporary moral and political philosophy. Philosophers such as John Rawls, Thomas Scanlon, Robert P. Wolff, and Ronald Dworkin have employed the concept to define and illuminate issues such as the characterization of principles of justice, the limits of free speech, and the nature of the liberal state.

In the most recent formulation of the foundations of his theory of justice, Rawls makes clear – what was implicit in his book – that a certain ideal of the person is the cornerstone of his moral edifice. A central feature of that idea is the notion of autonomy.

Scanlon's defense of a Millian principle of free speech relies also on a view of what powers autonomous persons would grant to the state.

Ronald Dworkin, in his article on Liberalism, does not use the word “autonomy,” but in discussing the idea of treating people as equals he is arguing for equal respect for the autonomy of citizens.

As seems appropriate for second thoughts, I shall begin at the beginning—the definition of paternalism. Elsewhere, I defined the concept as “interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced.”

A number of critics have objected that confining the concept to interference with liberty is too restrictive in scope. Given the problem I was interested in, that is, the proper limits of state coercion, this restriction was reasonable, although even here one ought to be aware that the state has other ways of influencing people's behavior. It may refuse to enforce contracts, give in-kind rather than cash aid, set up licensing boards, require manufacturers to install seat-belts as original equipment, and so forth.

If, however, one wishes to consider the issue of paternalism in other contexts, for example, in the professions, one will need a broader definition. Not all paternalistic acts are acts of the state. Not all paternalistic acts involve interference with liberty. The doctor who lies to her terminally ill patients, the parent who stipulates in her will that a child may not inherit an estate before the age of thirty, the psychiatrist who tells his adolescent patient that he must inform her parents of her drug use, the professor who refuses to recommend her Ph.D. student to a certain university because he will be “out of his league” – these are all cases of paternalism that do not involve the use of coercion or force and, therefore, on standard views of liberty do not involve restrictions on liberty.

1. There is a philosophical view about morality that is shared by moral philosophers as divergent as Kant, Kierkegaard, Nietzsche, Royce, Hare, Popper, Sartre, and Wolff. It is a view of the moral agent as necessarily autonomous. It is this view that I wish to understand and evaluate in this essay. I speak of a view and not a thesis because the position involves not merely a conception of autonomy but connected views about the nature of moral principles, of moral epistemology, of rationality, and of responsibility.

2. I shall begin by distinguishing a number of ways of explicating the notion of moral autonomy. In the philosophical debate very different notions have been confused, and because they are involved in claims that range from the trivially true to the profoundly false it is essential to distinguish them.

I am well aware that these essays represent the middle of a research program rather than its completion. In the past few years a number of books have been published that have made significant contributions to this effort. I shall outline some of the problems and issues that require continued investigation.

There are a number of conceptual issues that must be worked out in greater detail. Perhaps the most crucial is gaining a better understanding of the difference between what I call “procedurally independent” second-order evaluations and those that are not. Roughly, the distinction is between those modes of evaluation that interfere with the rationality of higher-order reflection and those that do not. We believe, prior to philosophical reflection, that there is a difference between a person who is influenced by hypnotic suggestion or various modes of deception and those who are influenced by true information and modes of rational inquiry. In the former case, but not the latter, we think of someone else as responsible for his reasoning and his conclusions. This is not a metaphysical distinction but a practical one and it is important to make explicit what criteria we use to make such a distinction.

It would also be useful to work out the connections between a clearly defined notion of autonomy and other notions such as rationality, being free, self-knowledge, ambivalence, neurosis, weakness of the will, and so forth.

This book was intended to be, and remains, a short introduction to a subject whose boundaries recede with each attempt to characterize them. Nevertheless, the role of benevolence, care, solicitude, and love in human life is so obvious and important that at first glance any new discussion of it may seem to be redundant. Yet the truth is otherwise. For the character of personal relations in advanced industrial societies is constantly being altered by the ceaseless changes in the social institutions of which those relations are a part. Hence as members of such societies, it is natural for us to wish to examine those relationships over a period of time in order to understand what sort of people we are in the process of becoming. Before we can do that, however, we have to try to remind ourselves of the nature of the emotions and attitudes that are embedded in some of our ways of dealing with other people, and with animals and objects. Love and care are basic elements in many of these practices, and thus the former will attract attention whenever the latter are under close scrutiny. For this and other reasons there has been renewed interest in recent years concerning the connections among the different emotions and various traits of human character on the one hand, and the links between both of these and the moral virtues and vices on the other. In Analyzing Love I have attempted to discuss at length only some aspects of one emotion, but it should be clear that a powerful motive for doing so is eventually to shed light, if possible, on our judgments – or misjudgments – of human character.

sexual desire as the wish for physical contact

Normal sexual desire, says Alan Goldman, is ‘purely the desire for contact with another person's body and for the pleasure which such contact produces’. The desire for such contact is both sufficient and necessary to make the desire sexual; and this physical contact, rather than the feelings and emotions that the contact might express, is ‘the goal of sexual desire’. Activities that have only this goal – for example, kissing embracing, and caressing under certain conditions – ‘qualify as sexual, even without the presence of genital symptoms of sexual excitement’. (1976, pp. 268–9)

Now the desire for bodily contact, and for the pleasure that it produces, will certainly be a necessary condition of normal sexual desire if the word ‘normal’ is used to exclude all difficult cases. Scoptophilia – the expression of sexual desire by visual means alone – is an obvious example of the sort of activity that will be ruled out. Similarly, according to Goldman, such activities as voyeurism, masturbation, and the use of pornography, are simply substitutes for ‘actual sexual contact’, (p. 270) So in the absence of the desire for bodily contact for its own sake there is no normal sexual desire. But given this definition, is it also the case that the desire only for physical contact, and for the pleasure that it brings, is a sufficient condition of normal sexual desire? The answer is not obviously ‘yes’.

scruton's distinction between emotions and attitudes

It is a striking feature of our terms for the emotions that many of the same terms are also used for character traits, for the virtues and vices, for the feelings, and for attitudes. ‘Courage’, ‘avarice’, ‘fear’, ‘jealousy’, ‘envy’, ‘pride’, ‘humility’, and ‘love’ are all obvious examples. It may seem obvious why such terms should be used to refer not only to our emotions and feelings but also to character traits – to the dispositions to display these emotions and feelings. The reasons why we appraise these dispositions as virtues and vices may seem to be clear enough. But what is the connection of the names of emotions with the names of attitudes?

One answer has been offered by Roger Scruton. His suggestion is that both attitudes and emotions ‘are expressed in directed behaviour; that is, behaviour of a consistent kind directed towards some object or class of objects’. Attitudes differ from emotions, however, in being ‘founded on belief, and a man can give up any attitude to the extent that he can give up the beliefs on which it is founded’. (1971, pp. 26–7) Emotions, on the other hand, are states in which ‘desires and wishes tend to exist in the context of relatively few beliefs and of perhaps no definite intentions’, (p. 30) To this distinction Scruton adds another. It is an elaboration of Aristotle's distinction in the Rhetoric between emotions that have universal objects and those that have particular objects.

We seem to possess all the information that we could possibly wish to have concerning love as a relationship between people; and yet some apparently simple questions on the topic have received rather different answers; and in some cases no clear answer at all. If A loves B, must A, as a matter of definition, want to benefit and cherish B, wish to keep company and communicate with B, and have B reciprocate this beneficial interest? ‘Yes’, says Gabrielle Taylor, for ‘we view love as a give-and-take relationship, so the essential wants will have to reflect this feature’. (1976, p. 154) ‘No’, remarks J.F.M. Hunter, ‘some are able to love without their love being reciprocated while others can only love those who love them’. (1983, p. 70) Curiously enough, however, Hunter does not mention the fact that the former might wish their love to be reciprocated. David Hamlyn agrees that reciprocity is not required and suggests that neither is the wish for association and communication. ‘Suppose’, he writes, ‘that someone has got to the point of recognizing the absolutely disastrous character of a relationship. It is possible for them to renounce it and any desire for its continuance while still loving the person concerned’. (1978, p. 13)

Again, we can ask whether A must love B – or usually loves B – for what A takes to be worthwhile qualities or features. More generally, we can ask whether anyone ever loves another person simply because he or she values certain qualities of the beloved.

the central traits of the beloved

It is commonly said that loving care for another person requires the lover to try to further the welfare and good of the beloved. To love someone is to will that person's good. The lover must try, in Tov-Ruach's words, ‘to discover what the beloved is really like to determine the best development and exercise of the person's central features’. A lover, she goes on to say, whose ‘attentions are active in forming and crystallizing the beloved's personality… takes care that his constituting attention is appropriate to the real traits and the tonal character of the person whom he loves’. (1980, p. 469) The question is how to interpret and then apply this precept.

In Colette's novel Chéri, for example, Léa, who is twice as old as Chéri, parts from him with the words:

You are breaking away from me very late in the day, my naughty little boy; I've been carrying you next to my heart for too long, and now you have a load of your own to carry: a young wife, perhaps a child… I am to blame for everything you lack… Yes, yes, my pretty, you are, thanks to me, at twenty-five, so lighthearted, so spoilt, and at the same time so sad… I'm very worried about you. You're going to suffer and make others suffer. You who have loved me…; (1955, p. 166)

Here Léa is remarking that she has helped to create in Chéri someone who is inadequate to deal with his own future needs. Her attention has been active in forming his personality, and she certainly knows what he is really like.

Love is commonly reckoned to be one emotion among many. But how many emotions we think there are depends on what account we adopt of the necessary and sufficient conditions for something to be an emotion. If we think that emotions are simply our awareness of the physiological changes produced in us by our perception of certain sorts of objects, then we can try to count the different sorts of objects that are capable of causing these bodily sensations in us: for example, frightening objects, extraordinary objects, delightful ones. Or we can try to count emotions by distinguishing the different patterns of these physiological changes that certain sorts of objects and situations produce in us: in sorrow, irregular heart beats combined with weeping and trembling, for instance. However, if the view adopted is the one that we shall employ here, an emotional state consists in abnormal bodily changes caused by the agent's evaluation or appraisal of some object or situation that the agent believes to be of concern to him or her. Distinguishing such states from each other, and hence counting them, will require us to distinguish the different kinds of evaluations and appraisals embedded in them – evaluations, for example, of situations as being inexplicably strange or embarrassing or pathetic or pitiful or appealing. Since not all societies make these same sorts of evaluations, some emotions named and recognized in one society can be nameless and unfamiliar in another. Thus the German Schadenfreude, or malicious glee, is a response that is familiar outside Germany but perhaps not common enough in some societies for it to be classified by their members as an ordinary emotion.