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Bioethics and Deliberative Democracy: Five Warnings from HobbesGriffin Trottera

a Saint Louis University, Saint Louis, Missouri, USA

To cite this Article Trotter, Griffin(2006) 'Bioethics and Deliberative Democracy: Five Warnings from Hobbes', Journal of Medicine and Philosophy, 31: 3, 235 — 250

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Journal of Medicine and Philosophy , 31:235–250, 2006Copyright © Taylor & Francis Group, LLCISSN: 0360-5310 print/1744-5019 onlineDOI: 10.1080/03605310600712786

NJMP0360-53101744-5019 Journal of Medicine and Philosophy, Vol. 31, No. 03, April 2006: pp. 0–0 Journal of Medicine and Philosophy

Bioethics and Deliberative Democracy:Five Warnings from Hobbes

Bioethics and Deliberative Democracy G. Trotter

GRIFFIN TROTTER Saint Louis University, Saint Louis, Missouri, USA

Thomas Hobbes is one of the most ardent and thoroughgoing oppo-nents of participatory democracy among Western political philoso-

phers. Though Hobbes’s alternative to participatory democracy—assent

by subjects to rule by an absolute sovereign—no longer constitutes aviable political alternative for Westerners, his critique of participatory democracy is a potentially valuable source of insight about its liabili-

ties. This essay elaborates five theses from Hobbes that stand as cogent warnings to those who embrace participatory democracy, especially those (such as most bioethicists) advocating for deliberative democracy

based on a rational consensus model. In light of these warnings, the author suggests an alternative, modus vivendi approach to deliberative

democracy that would radically alter the current practice of bioethics.Keywords: deliberation, democracy, Hobbes, modus vivendi,moral consensus

I. INTRODUCTION

Aristotle thought that human beings could be differentiated from other animalsby their rationality. Though one could make a case for this particular taxonomy, I

find it about as satisfying as differentiating toads (and frogs) by their digital pads.For me, toads are better described as slimy, coarse-skinned amphibians that usetheir disproportionately large hind legs to hop and swim, and use their dispro-portionately large oral apparatus to say “ribbit” and catch insects. The digital padsare useful, no doubt, but no one thinks of digital pads when they think of toads.

Likewise, if toads and other animals could talk, none of them wouldfocus on rationality when sharing their thoughts about humans. They would

Address correspondence to: Griffin Trotter, Ph.D., Center for Health Care Ethics, Saint

Louis University, 221 N. Grand Blvd., St. Louis, MO 63103, USA. E-mail: [email protected]



236 G. Trotter

talk, perhaps, about our bad odor or our death-dealing appendages. Most of all, I think, they would talk about our insatiable will to dominate. This charac-teristic is bound to elicit notice, because it diverges so radically from the normamong other animals. As all outdoor-livers know, wild animals with full bel-

lies are rarely dangerous—unless, of course, they think you want to eat theirchildren or copulate with their latest flame. Apart from its instrumental uses insecuring food, sex, and security, domination has little appeal to the grizzly bear, the bull moose, or to other animals who are capable of achieving it.

Human beings, on the other hand, are always dangerous and alwayshungry for more than a full stomach. If we decide to harvest fish or deer, wego for size and volume—even when there is food aplenty in the kitchen backhome. If we want to fight, we practice every day and then schedule tourna-ments (or wars) that allow us to fight many opponents in rapid succession. If we want to copulate, we enact extravagant dining rituals, trips to Paris, or

subject ourselves to brooding art films that would kill elephants in about fiveminutes. In all of this, we crave novelty, eternal vitality, and… dominance.

Of course, humans of various stripes exert various forms of power,establishing multitudinous and frequently countervailing patterns of domi-nance. Rationality is certainly an important weapon in our arsenal and, as with our other weapons, we experience pleasure in wielding it skillfully. Forhuman beings, there are no pure instrumentalities. But rationality is alwaysmixed with other affections such as anger, greed, pride, lust, and prejudice(to name a few)—and typically it is employed, at least in part, to serve them.

In this article, I isolate a particular breed of human being—the bioethicist— and examine its characteristic methods of acquiring and wielding politicalpower. Bioethicists are typically human in their ravenous pursuit of dominionand their urgency to achieve arbitrary ends. Yet interestingly, they gild and dis-guise such non-rational motives with the Aristotelian conceit, waxing eloquentabout cognitively higher-order things like rational consensus, human rights, andsocial justice. None of these things, I would (but won’t directly) argue, really make much sense as they are laid out by bioethicists. What I will argue here isthat bioethics’ campaign for political influence is founded on a flawed accountof democratic deliberation. It is flawed, I think, in just the way that the venerable

grandfather of Enlightenment political philosophy, Thomas Hobbes, thoughtintellectual advocacy for democracy is bound to be flawed. Unlike Hobbes, Ihave no particular disdain for democracy. My intention here is to improve ourconception of it. To that end, I will employ Hobbesian notions as leading ideas.

II. THE RELEVANCE OF HOBBES

It is no mistake that contemporary accounts of the development of liberalpolitical philosophy typically begin with John Locke rather than Thomas Hob-

bes.1 Contemporary liberalism has wedded itself to two notions that Hobbes



Bioethics and Deliberative Democracy 237

repudiated: democracy and common morality. Locke, counter Hobbes, wasan early champion of democracy (Locke, 1988, p. 354) and, though his ver-sion of toleration leaves far more room for ethical pluralism than current ver-sions of tolerance (Khushf, 1994), Locke was keen to base the principles of

government on a common, Christian morality (Goldie, 1997, pp. 16–20). Yet despite our long tradition of placing Hobbes at the margins of liberaltheory, there are several good reasons for contemporary political theorists toreengage him. First, Hobbes is uniquely prominent among Enlightenmentphilosophers for his critical stance toward democracy. If we are serious abouthoning and improving our conceptions of democracy, presumably it wouldprove worthwhile to reflect on democracy’s liabilities and shortcomings—atask with which Hobbes is well qualified to help. Second, politics is rapidly globalizing; with globalization comes the encounter with ethical and religiouspluralism and a stark, postmodern challenge to assumptions about a universal

common morality. Hobbes stands virtually alone among early Enlightenmentpolitical philosophers in insisting that humanity’s natural state is irremediably plural, chaotic, and bereft of universal ethical standards (aside from the “Rightof Nature,” which is the right of each individual to do whatever he or she willto serve his or her own interests). This sits better with postmodern thinkingthan the tradition-bound accounts of Locke, Kant and other prominentEnlightenment theorists. Third, and perhaps most importantly, Hobbes aligns with contemporary naturalism in his insistence that homo sapiens is not wholly, nor even primarily, a rational animal. He understands far better thanLocke and Kant that we have passions and that these passions—as much asrationality—constitute our nature.

In this article I briefly develop several theses from Hobbes that havebearings on contemporary theories of deliberative democracy, especially asit is developed in bioethics. By “deliberative democracy,” I denote accountsof democracy that focus on the legitimizing role of deliberation among citi-zens. As Will Kymlicka observes, contemporary theories of deliberativedemocracy arose in the 1990s as a response to tensions between liberalindividualism and communitarianism. In the spirit of useful oversimplifica-tion, he says that deliberative democrats sought to mediate countervailing

emphases on rights and justice (liberal individualists), on one hand, versuscommunity membership (communitarians), on the other, by focusing on theoffice of citizenship, which integrates these factors (Kymlicka, 2002, p. 284). According to Kymlicka, proponents of deliberative democracy are unsatis-fied with “aggregative” or “vote-centric” conceptions of democracy because:

1. they provide “no opportunity for citizens to try to persuade others of themerits of their views,”

2. they provide no means for distinguishing between “claims based on self-interest, prejudice, ignorance, or fleeting whims from those grounded in

principles of justice or fundamental needs,” and



238 G. Trotter

3. they provide for little if any social dimension to the political process(Kymlicka, 2002, p. 290).

The goals of the political process, on this mainstream account of delib-

erative democracy, are better and more legitimate political decisions, socialsolidarity, enhanced mutual understanding, and agreement. As to the likely or desirable level of agreement, there is controversy. Some theorists, such asIris Marion Young, seek only limited agreement (Young, 1996, p. 126); oth-ers, such as Amy Gutmann and Dennis Thompson, seek robust moral con-sensus (Gutmann & Thompson, 2004, p. 92).2

Within the field of bioethics, the convergence or consensus-orientedschool has held sway for well over a decade. Conceding that academic bio-ethics is “not directly concerned with developing a societal response” toethical issues (Moreno, 1995, p. 6), Jonathan Moreno nevertheless rightly

observes that bioethics has from its inception manifested a strong commit-ment to deliberative processes and the goal of moral consensus. Hence, heregards bioethics not merely as a field of study, but also as “a set of socialpractices” (pp. 6, 55–72) and as a “social reform movement” (pp. 143–159)based on a particular conception of democracy. The particular conceptionin question is that of deliberative democracy, aimed at enhanced mutualunderstanding, progressive reform, and a convergence of moral beliefs.

For some misgivings about this conception, we now turn to Hobbes.3

III. FIRST THESIS: PARTICIPATORY DEMOCRACY TENDSTO DEVOLVE INTO ARISTOCRACY

For Hobbes there are several features of deliberative (or, more generally,participatory) democracy that directly threaten the welfare, liberty, andsecurity of citizens (Flathman, 2002, pp. 134–142). He believes, first of all,that participatory democracy is difficult to carry off on a grand scale, andalways devolves into rule by an aristocracy of vain-glorious public personal-ities (Hobbes, 1962, pp. 229–230). When people are free to express their

opinions, and empowered to effect them into law when they recruitdevoted followers, many contenders and public personalities will appear.Some of these contenders will be more adept or politically connected(though not necessarily more wise) than others. Ultimately, the most adroitmanipulators of public sentiment will hold power and use this power in the way power is typically used—to serve their individual ends (whether theseends be egoistic, as Hobbes frequently presumes, or of the nature of impos-ing a comprehensive moral vision upon dissenting subjects).4

Bioethicists achieve opportunities for influential public speech boththrough claims of expertise5 and by establishing political connections.6 Each

of these mutually intertwining pathways is opened by bioethicists’ residence




within the academy. Thus, when the National Commission for the Protec-tion of Human Subjects of Biomedical and Behavioral Research (the“National Commission”) was appointed to address issues related to biomed-ical research, academic bioethicists were prominent among the appointees.

Such was also the case with subsequent commissions, including the Presi-dent’s Commission for the Study of Ethical Problems in Medicine and Bio-medical and Behavioral Research (the “President’s Commission”), and alsothe National Bioethics Advisory Commission (NBAC). The ostensible ratio-nale for these appointments seems to include the dubious supposition thatbioethicists’ extensive training in a diversity of philosophical systems wassufficient to ensure an objective, non-partisan approach to the issues athand—despite the fact that the appointees leaned uniformly leftwardtowards the Democratic Party. The actual rationale was probably exactly theopposite—that is, confidence that the commissions would issue recommen-

dations that cohered rather nicely with the ideology of the Democratic Party officials who appointed them. Indeed, that is just what the commissions did,until the latter two were rudely interrupted by the intrusion of Republicanadministrations (Reagan insisting that some actual conservatives be allowedinto the discussion, Bush II appointing a new, more conservative, bioethicscouncil).

While in power, these commissions produced influential guidelinessuch as the Belmont Report, which has structured federal policy on researchprotections ever since the National Commission served it up. When theirinfluence was cut off (by the aforementioned dislocations and terminations)they responded as all aristocracies do when threatened by the prospect of dwindling power: they lamented publicly about the plight of ordinary citi-zens, so suddenly and tragically deprived of needed wisdom and expertisethat only they could offer. Thus, Jonathan Moreno remarks that with theaddition of Reagan appointees, the President’s Commission descended into“partisan politics,” derailing “a rather explicit elaboration and defense of theidea of a right to health care”—as if the latter were transcendently wise andunstained by the subterfuge of partisan motives (Moreno, 1995, p. 80).

All this heartbreak aside, academic bioethicists should take solace in

the rhythms and oscillations of American politics. Their sponsor, the Demo-cratic Party, will rise again, and with it—them too. All of this in accordance with Hobbes’s first thesis.

IV. SECOND THESIS: PARTICIPATORY DEMOCRACY BEGETSUNPRODUCTIVE DISPUTES

According to Hobbes, participation in political discourse focuses attention onprofitless subjects and thus distracts from more important and satisfying activ-

ities (such as attending to family affairs and enjoying the company of friends).



240 G. Trotter

Hobbes’s observation about profitless subjects hinges on his worries aboutthe politicization of ordinary human activities. The purpose of the state, onhis view, is to carve out a secure area where such activities can be conducted without hostile interference.7 Among the inventory of profitless subjects, Hob-

bes would include moral controversies engendered by needless disputationamong those who would be better off to go their own separate ways.Many of the central issues in bioethics qualify on this point. The moral-

ity of abortion or assisted suicide, the maintenance of life-prolonging treat-ments in permanently unconscious patients, for-profit organ donation, andthe application of neurological criteria for death are all issues that hinge onfundamental moral beliefs. The vast diversity of such beliefs, their intensity,and their incommensurability, ensures that subjecting them to public debate will produce only pallid unifying effects. Though bioethics may (and tosome extent does) succeed in influencing legislation on these issues, the

moral controversies persist. For Hobbes, public advocacy of this nature isprofitless, not merely because it cannot succeed in producing a robustmoral consensus, but more importantly because liberty and individual felic-ity would be enhanced by allowing opposing individuals and groups toestablish their own practices, free from government interference and fromeach other (Flathman, 2002, pp. 101–103).

V. THIRD THESIS: PARTICIPATORY DEMOCRACY BEGETSEXCESSIVE GOVERNMENT POWER AND DOMINION

Democratic processes strongly tend to enhance both government’s power(ability to enforce obedience) and its dominion (scope of things enforced).8

Because the citizens of a democracy participate in its rule, they tend to con-fuse dominion with liberty (Hobbes, 1962, pp. 228–229). In actuality, how-ever, effective liberty is maximized when there are “few laws, fewprohibitions, and those too such, that except they were forbidden, therecould be no peace” (p. 228). In participatory democracy, many are involved,each with their own particular interests, desires, and objectives to which polit-

ical power is an available means. As Hobbes observes, in a popular democ-racy, “there may be as many Neros as there are orators who soothe thepeople” (p. 227). Each of these mini-demagogues is potentially capable of converting his/her personal concerns into political issues. Cooperation withdisinterested demagogues is negotiated via a quid pro quo (well illustrated inthe United States by our congressional earmarks)—begetting layer upon layerof political accretions. As we have witnessed in recent years, the metastasis of public projects eventually produces an unwieldy workload that overwhelmselected officials. Rather than viewing this predicament as a signal to scaledown government, these officials create committees, commissions, and agen-

cies—filled with political allies and authorized to create or enact more rules




and prohibitions. The end result is more power, more dominion, and lessspace for the operation of individual liberty.

Bioethics is more than complicit in this hyperplasia of government. Itfeeds on it and sometimes helps constitute it. The bioethics commissions are

an obvious case, but hardly the primary one. To an increasing extent, bioet-hicists and bioethics departments depend on “external funding”—a termthat typically indicates federal grant money divested from taxpayers sanstheir consultation or consent about its specific uses. Grant money flows for“research” projects aimed at:

1. suggesting new research protections (i.e., more regulations constrainingpossible market arrangements between researchers and subjects),

2. suggesting new guidelines for organ procurement and distribution (i.e.,more regulations constraining possible market arrangements between

donors and recipients),3. suggesting ethical remedies for the problem of “health disparities”

(i.e., more laws or regulations constraining the freedom of individualsto choose their own lifestyles and their prerogative not to be heldfinancially accountable for the health effects of others’ lifestylechoices),

4. suggesting funding guidelines for federal stem cell research (i.e., moreregulations constraining individuals and groups from choosing their ownresearch methods and objectives—said regulations formulated, of course, without altering current constraints on taxpayer decisions concerning what research they will financially support), and so forth.

In other words, bioethics is largely in the business of enhancing thedominion of government, even as it enhances its own.9

VI. FOURTH THESIS: PARTICIPATORY DEMOCRACY BREEDSEXCESSIVE COLLECTIVE ASPIRATIONS

Insofar as citizens conflate their political dominion with their liberty or theirfelicity, they will tend to conjure grand visions of what they can achieve with like-minded political allies (against the will of dissenters). The typicalresult, on Hobbes’s account, is a suffocating profusion of collective think-ing. Collective aspirations can be excessive in several senses. They may be:

1. beyond human capacities (and hence politically unrealistic),2. beyond effective political control,3. beyond what is needed for peace (peace being the only cogent rationale

for the commonwealth), or

4. based on irrational fears.



242 G. Trotter

Regarding the latter item, Hobbes spends quite a bit of time delineatingthe ways in which public discourse amplifies realistic personal fears intoirrational public hysteria. He writes: “For the Passions of men, which asun-der are moderate, as the heat of one brand; in Assembly are like many

brands, that enflame one another, (especially when they blow one another with Orations) to the setting of the Common-wealth on fire, under pretenceof Counselling (sic) it” (Hobbes, 1996 [1651], p. 181).

As I have argued in the past, bioethics tends to the assumption— shared by most (liberal or conservative) proponents of majoritariandemocracy—that the nation (and ideally the globe) should constituteone big, happy, moral community, animated by universal convictionsabout social justice, human rights, and the principles of bioethics (Trot-ter, 2003). Beauchamp and Childress, for instance, assert that their com-mon morality framework is shared “by all persons in all cultures who are

serious about moral conduct” (Beauchamp & Childress, 2001, p. 4).Deliberativists like Moreno and Mark Kuczewski are more reservedabout the existence of an operational common morality, but think thatconvergence to common moral beliefs, principles and practices is theproper goal of public deliberation, and eminently achievable (Moreno,1995, pp. 18–38; Kuczewski, 1997, pp. 3, 13–14, 17). More to the point,all of these prominent bioethicists, and the majority of their colleagues, view the construction of a robust public moral philosophy as a collec-tive, national political project.10 This thinking reflects a new, nationalisticanti-federalism (challenging federalism’s deference to state power) which is the contrary of early American forms of anti-federalism (whichchallenged federalism’s deference to national power). The credo seemsto be that it is better to do something coercively in large aggregates thanto do it by consent in small groups. Of course, this outlook reflects bio-ethics’ self-interest in sustaining its emerging role in national projectsand as a recipient of federal money.

In the campaign for collective government action, bioethics participatesin each of the aforementioned forms of Hobbesian excess:

1. it seeks a degree of national moral consensus that is unworkable (Engel-hardt, 2002);2. it seeks inordinate political influence over matters that cannot be effec-

tively controlled by national governments (for instance, elimination of health disparities),

3. it champions projects that have little or nothing to do with securingpeace (this pertains to most of the political advocacy in bioethics);and

4. it stokes exaggerated public fears (for instance, by consistently portraying America’s 45 million uninsured citizens as lower income individuals des-

perately in need of healthcare11).




VII. FIFTH THESIS: RATIONAL CONSENSUS WILL NEVER BE THE PRIMARY MOTIVE IN PUBLIC DELIBERATION

By enumerating the dangers of participatory democracy, we come to under-

stand why Hobbes thinks that rational moral consensus is not the motive, oreven a desirable objective, of public deliberation. According to Hobbes,human beings are afflicted by a “restless desire of power after power, thatceaseth only in death,” arising because power provides the means for living well (Hobbes, 1996 [1651], p. 70). Proximally, then, human beings are moti- vated to political activity by their desire for power. For ordinary citizens, themost primordial case is an appropriation of government power for security against the violence and aggression of other persons. That, on Hobbes’saccount, is the primary reason why it is reasonable for them to consent togovernment. To a much greater degree than other theorists of his era, Hob-

bes insists that the distal objective—living well—is a function of individualconstitution, preference, and choice, varying widely between persons andmoral communities.

Of course people have no qualms about appropriating more powerthan they need for their personal safety and freedom (neither, according toHobbes, do they have a natural moral obligation to avoid doing so). Partici-patory democracy unfortunately tends to inflate the sense that persons shar-ing various interests have that they can successfully achieve dominion overcompetitors (by garnering special privileges, redistributing property, etc.),thus enflaming their will for political dominion. It would be better, Hobbesthinks, for ordinary citizens to respect natural limitations in the accumula-tion of personal political power, understanding that the best they can typi-cally do is to limit the ways in which other parties can wield power againstthem. In sum, then,

1. people act politically to appropriate political power,2. political power is useful instrumentally, as a means to living well,3. peoples’ interests and conceptions of living well are various, divergent

and at odds, and

4. despite these conflicts, people have a common interest in protectingthemselves from one another.

Moral consensus, in any robust sense, is not part of this equationbecause it is neither obtainable nor is it a desirable pursuit. It is not attain-able because peoples’ various and diverging moral beliefs cannot typically be mediated by rational discourse alone (rationality operates on premisesthat reflect desire, faith, training, emotion, or other contingencies, and isimpotent to unseat these foundations except by introducing alternativefoundations that are equally contingent).12 It is instructive, in this sense,

that most of the twelve claims that Moreno identified in 1995 as objects of



244 G. Trotter

bioethical consensus are still contended within the population at large, which does not widely share the moral presuppositions that structure main-stream bioethical discourse.13 Furthermore, even where rationality has logi-cal traction, it typically possesses insufficient volitional traction to carry the

day. In the end, we are not primarily rational animals.Moral consensus is not a desirable pursuit, at least in the politicalrealm, because political processes aimed at moral consensus exacerbateeach of the aforementioned dangers of participatory democracy. Founded,as it is, on the false claim that extensive moral consensus is possible, thequest for consensus requires multiple layers of deception. Citizens must bedeceived into believing that the opinions of statesmen or moral experts aremorally authoritative for the whole group (Hobbes’s sovereign would neverpose such a ludicrous claim). They must be deceived into believing thattheir well-being is enhanced by acquiescing to the purported moral consen-

sus. And they must be deceived into believing that this acquiescence is inimportant respects autonomous and voluntary (despite the obvious fact thatit is coerced).

Contrary to these deceptions, the pronouncement of moral consensusas a political device is similar to other political devices. It exists as a meansof securing power—namely, power against those who are not part of theconsensus, or those who have no interest in abiding by it. To avoid suchduplicity, we should accept that when people join together in politicalnegotiations, the primary form of agreement they seek is agreement about what they will do or refrain from doing collectively; not about why they will, or should, do it or refrain from doing it (Trotter, 2002). In Hobbes’s view, that form of agreement is possible and desirable, to a limited extent atleast. And it has little to do with moral consensus.

VIII. CONCLUSION: IS THERE HOPE FOR BIOETHICS AND DELIBERATIVE DEMOCRACY?

The intent of this article—to articulate a Hobbesian critique of deliberative

democracy as it is interpreted by mainstream academic bioethics—is prima-rily critical. Yet Hobbes’s critique of democracy-by-rational-consensus, andits bioethical counterpart, opens the door to a much longer and more diffi-cult discussion. Is there hope for deliberative democracy? And bioethics? And if so, what is its source? There is little time even to frame such a discus-sion here, much less to conduct it. I conclude, then, with a brief pointing-in-the-direction (which summarizes much of the more extensive work I havepublished or will publish elsewhere, especially in a forthcoming book).

Bioethics is immersed in a version of deliberative democracy that viewsdeliberation as rational discourse, and rational consensus as its summum

bonum. If Hobbes is close to the mark, then this version is unrealistic and




dangerous. Real political discourse is fractious; it involves the whole gamutof moral, immoral, and amoral human motives; and it succeeds primarily by producing cooperative activity, not moral consensus. Hobbes prefers mon-archy over participatory democracy primarily because he thinks it is less apt

to produce tyrannical accretions of government power and dominion, leav-ing citizens and diverse moral communities at relative liberty to chart theirown moral destinies.

Accepting these Hobbesian challenges, is there anything that can bedone to check its vices and tweak deliberative democracy into an effective,authoritative political tool? The best response, I think, lies in a conceptchampioned by neo-Hobbesian political theorists: modus vivendi .

A modus vivendi is a provisional arrangement established through theassent of contending parties, pending future arrangements that will be moresatisfactory for all involved. There are no pretensions about deep moral con-

sensus, rational or otherwise. To the contrary, its end-in-view is workablecompromise. Liberal, democratic versions of the modus vivendi focus onempowering ordinary citizens or citizen groups with some kind of preroga-tive to grant or, especially, withhold their assent. This amounts to providingthem with possible avenues of public expression and, more importantly, with various forms of veto power against government interference. These powersof expression and approval/disapproval are granted without constrainingrules of discourse or justification. One need not prove that her motives arerational or altruistic. Such assessments hinge, after all, on particular moral visions, and modus vivendi theory is predicated on the thesis that no particu-lar moral vision can be established authoritatively by the state.14

This right of giving or withholding assent is the only form of citizenempowerment that the modus vivendi approach allows, and it is deeply entwined with the notion of public deliberation that would hold sway insuch a system. Public deliberation, on this non-rationalistic model, is simply discourse (rational or non-rational; argumentative or negotiative) aboutpublic action. Moral suasion might come into play in some circumstances;but deliberation is in its most fundamental sense the application of humancognition to decisions about action. All of the normal influences on human

cognition (emotive, conative, etc.) pertain, and in the modus vivendi modelof public deliberation, there are not pretensions about distilling them out.Positive rights, that is, entitlements to goods and services (including

those that enhance the capacity for effective public speech), would not beout of the question—but they could be established only insofar as they were not barred by the operation of a more fundamental political right: theright of individuals not to be appropriated without their assent. Of course,the right not to be appropriated includes not merely the right not to be con-scripted for service unless one assents to the conscription scheme, but alsorights to property and ownership—unhindered by untoward takings. These

latter are tricky, insofar as property and ownership are themselves social



246 G. Trotter

constructs—not eternally sketched in conceptual stone as Locke and many mainstream libertarian descendents tend to hold—but themselves theobjects of a modus vivendi .

It is possible (however difficult) to embrace modus vivendi theory with-

out being a libertarian.15

It is not possible, however, for the modus vivendi theorist to be a collectivist on fundamental political principles (they can becollectivists, but the envisioned collectivisms are themselves modus vivendi ).Nor can modus vivendi theory sanction majoritarian democracy of the kindthat increasingly holds sway (especially in the power structures of the twomajor parties) in the United States. Deliberative democracy on the modus viv-endi model will of necessity be some form of concurrent democracy, champi-oned in the American tradition by John Calhoun (Calhoun, 1992)—that is, aform of government where political sub-units have the right not only to grantor withhold assent to fundamental political arrangements, but also to nullify

arrangements when their interpretation becomes a matter of dispute.This version of participatory democracy is shielded, to a much greater

extent than one based on rational consensus theory, against the dangers enu-merated by Hobbes. Aristocracies would certainly emerge, but they would bemanifold and at cross purposes. While majoritarian democracy alwaysdevolves into a two-party, two-aristocracy fight for dominance (where theupper hand means immense power), concurrent democracy breeds a multi-plicity of parties and aristocracies that work better at holding one another incheck. Massive accretions of government power become far less likely. Were bioethics to adopt a modus vivendi model, the office of the bioethicist would change radically – especially regarding bioethics’ overlapping activi-ties of theorization, persuasion, rational analysis, and description. Theoriza-tion would transpire primarily and self-consciously within the context of particular moral and political traditions, and as such would often be mar-keted towards those already sympathetic to said traditions. Attempts to per-suade others of the superiority of one tradition-based political system, basedfor instance on common moral commitments, would still arise, but they would be addressed to citizens and citizen groups capable of giving or withholding assent, rather than to political authorities who are expected to

enact the systems coercively. Rational analysis would still constitute animportant domain in which bioethicists could contribute. However, suchcontributions would be offered in a spirit of humility, recognizing that:

1. rational argumentation always hinges on premises that cannot be estab-lished by reason alone, and likewise

2. rationality is only one tool in the human arsenal, alone never sufficient toconstitute a comprehensive, substantive moral vision.

Were modus vivendi theory to hold sway, the descriptive office of bio-

ethics would be enhanced. Many bioethicists, that is, would be occupied




with interpreting particular moral traditions to the polity at large—clarifyingpoints of contention and agreement, and thus facilitating the processes of political negotiation.

There are, of course, many difficult issues facing any attempt at transi-

tion to forms of deliberative democracy, or the practice of bioethics, thatembrace modus vivendi political theory. Not the least of these is the prob-lem of delineating practical boundaries between moral communities and anacceptable inventory of particular individual or group political rights togrant or withhold assent—without derailing public projects that clearly improve the lives of virtually all citizens. Though I have elsewhere sug-gested strategies for addressing these and related problems (Trotter, 2001),much more needs to be said. Perhaps bioethics would do well to recognizethe cogency of Hobbes’s critique, and embrace this challenge.

NOTES

1. Rawls, for instance, takes the works of Locke, Rousseau, and Kant as “definitive of the social

contract tradition,” writing that Hobbes “raises special problems” (Rawls, 1971, p. 11n). In his seminal

political treatise, Nozick elaborates an essentially Lockean theory, never even mentioning Hobbes(Nozick, 1974). There are, on the other hand, a few prominent contemporary political theorists whoattend seriously to Hobbes. The short list includes Patrick Neal (1997), Richard Flathman (1992), John

Gray (1995), and David Gauthier (1986).2. Young never subscribed to the term “deliberative democracy,” preferring “communicative

democracy” instead. Recently, as the upper hand in theorization about deliberative democracy hasshifted to those who seek robust moral consensus, Young has issued strong criticisms of the movement

(Young, 2003). To her credit, Young staunchly insists that political communication involves more thanexercising our mutual capacities for rationality. She also purposes to make more room for moral plural-

ism, but her efforts here are weak—insisting, as she does, that morally divergent parties appreciate oth-ers’ moral practices and regard mutual participation and moral diversity as positive goods that the state

ought to promote not merely for their instrumental political benefits, but as centrally important ends-in-themselves. Young’s political vision is one of many current versions where “diversity” becomes a linch-pin of state-enforced conceptions of the good and of substantial justice. Such programs preclude the

genuinely morally pluralistic state, which remains sanguine when citizens mutually abhor the opposing

views they nevertheless must tolerate.3. My account of Hobbes in this essay is deeply influenced by Richard Flathman (2002).

4. Perhaps some readers will object that the necessity within democracy of garnering public sup-port for proposed reforms precludes the liability of imposing a moral vision on dissenting subjects. But

that only holds in the unlikely event that an entire populace has been persuaded. With regard to genu-ine public controversies, there is always a dissenting minority. In a simple democracy this dissenting

minority is subject to moral systems and rules imposed by the majority.5. Merely listing oneself as a faculty member on the website of a bioethics department currently

positions the bioethicist to make an exaggerated expertise claim. Like many bioethicists, I receive a

steady stream of requests for media interviews and legal consultation (the latter most frequently foradvice or expert testimony on tort cases, but also sometimes for opinions on legislative matters). Often,

my name has been acquired through a quick Google search. Almost invariably, such solicitations are

accompanied by the assumption that my status as an academic bioethicist qualifies me to identify “whatis ethical” and “what is not” in medical and health policy matters. A similar assumption typically pertains when I am asked to speak at churches, hospitals, government meetings, and so on. Not to correct these

mistaken assumptions is tantamount to making an exaggerated expertise claim.6. Often political connections come passively, as in appointments to bioethics commissions and

requests for consultation (though these appointments and requests presumably often reflect prior



248 G. Trotter

maneuvering). In recent years, there has been considerable enthusiasm among many members of the

American Society of Bioethics and Humanities to “take stands” on political issues—often justified by

claims that bioethicists are well situated to advise the public about what is right and wrong in the clinicand the legislature.

7. Flathman’s analysis is particularly compelling on this point. He writes: “Hobbesian subjects

enter and undertake obligations to political associations exclusively in order to satisfy their desire forpeace, defense, and the possibility of commodious living to which peace and defense are necessary. A

subject’s obligations end if her life or bodily well-being is jeopardized by the Sovereign or by others

against whom the Sovereign should protect the subject… In these respects, subjects relate to the com-monwealth in a cool, calculated, rather distant manner. It seems that the relationship has little depth andan uncertain durability. If it persists, it will do so because the Sovereign takes care not to provoke dis-

obedience or rebellion by arousing fears greater than fear of her, because the subjects fear one anothermore than they fear the Sovereign, or because of a combination of these factors or considerations”

(Flathman, 2002, p. 130). The most central reason for Hobbes’s favoritism of monarchy is that he thinksit tends to be much less intrusive than democracy. This limited practical scope preserves important liber-

ties. Hobbes thinks that all political authority—in monarchy, democracy, oligarchy, and so on—is abso-lute. In monarchy, however, absolute authority is less apt to be applied in unproductive ways.

8. There is another sense of “dominion” sometimes used by Hobbes—denoting the scope of

authority. In this second sense, dominion is always unlimited (Flathman, 2002, p. 136).9. Of course, the aforementioned tendency to engender profitless disputes is organically related

to the tendency to enhance government power and dominion. The negative synergy is well illustrated inthe aftermath of Hurricane Katrina, where bioethical commentary about how to prevent similar future

debacles consists mostly of advice to increase deliberation (especially among bioethicists) about refrac-

tory issues (such as “social justice”) rather than on strategies that would funnel federal money intoimmediately-helpful projects such as construction of a fleet of mobile medical hospitals (Trotter, 2006).

All of this relates to the tendency among bioethicists to insist on a rich canon of collective ethical stan-dards—a tendency that will be discussed in the treatment of the fourth thesis from Hobbes.

10. To buttress their collectivist ideology, bioethicists often misinterpret ordinary political negotia-tion as public deliberation about the deep nature of morality. In this vein, Laurie Zoloth characterizes the

Oregon Medicaid Experiment as an inclusive communal discourse about the nature of social justice(Zoloth, 1999, p. 47). To the contrary, however, public discourse in this instance is better characterized

as political negotiation between those with diverging moral visions about how best to achieve a com-mon goal of access to a basic package of healthcare benefits (Trotter, 2001). Even the moral rationale for

establishing such access was not clearly delineated or agreed upon.11. The portrayal of healthcare-uninsured Americans as a class of uniformly low income individu-

als who are desperately in need of health care is misleading on all fronts. To wit:

1. many of the uninsured are financially well off (25% have yearly incomes in excess of $50,000),2. the majority of healthcare uninsured persons have access to insurance, either through public

programs that they choose not to utilize, or through their own income (this fact stands evenapart from consideration that any American citizen who chooses to serve in the armed forces

will receive medical benefits for life), and3. more than 18 million uninsured persons are young (18–34 y/o), mostly healthy adults who are

encouraged not to purchase health insurance by “guaranteed issue” laws enacted in several states

(Editors, 2004). Bioethicists also tend to the misleading implication that the rising number of healthcare-uninsured persons reflects an increasing percentage of uninsured persons rather than

merely an increasingly large population in residence. In actuality, analysis of Census Bureau data

indicates that the percentage of healthcare uninsured persons was the same in 2003 as it was in1996, and lower in 2003 than in 1997 or 1998.

12. H. Tristram Engelhardt, Jr., a prominent bioethicist squarely outside the mainstream as I have

characterized it here, offers the definitive account of why rational moral consensus is unobtainablethrough discursive means (Engelhardt, 1996, pp. 32–101).

13. Take, for instance, the first of these claims: “competent adult patients should be informed of their diagnosis unless it is certain that immediate and severe harm will result” (Moreno, 1995, p. 13).

Aside from the nit-picky rejoinder that such projections of harm are never certain, this claim is repudi-ated by a number of prominent moral and cultural groups in the United States. Many Chinese Americans

(and many others of Asian cultural heritage), for instance, still maintain traditional convictions that sick




individuals should be spared the details of their medical management, and that these should be handled

by a family member in charge (Hern et al., 1998).

14. This is one point where Hobbes differs radically not only from the contemporary liberal cos-mopolitans who dominate bioethics, but also from traditional conservatives and contemporary neocon-servatives. In his classic treatise on conservative thinking, Russell Kirk quotes conservative Irving Babbitt

as follows: “If one is to refute Machiavelli or Hobbes, one must show that there is some universal princi-ple that tends to unite men even across national frontiers, a principle that continues to act even when

their egoistic impulses are no longer controlled by the laws of some particular state supported by its

organized force” (Kirk, 1985, pp. 424–425). The principle to which Babbitt refers is of needs a substan-tive, positive moral principle, and one that can be codified into a fundamental political principle. In dis-tinction to conservatives, modus vivendi theorists deny the existence of such a principle—agreeing on

only a negative principle, that citizens always maintain a right of violent opposition against encroach-ments of liberty effected without their assent. As Hobbes writes, there is “no Obligation on any man,

which ariseth not from some Act of his own; for all men equally, are by nature Free” (Hobbes, 1996[1651], p. 150). Flathman calls this “the core claim of Hobbes’s contractarianism” (Flathman, 2002, p. 71),

and indeed it is the only sense in which I believe that Hobbes can properly be called a contractarian, hislaws of nature being subordinate to and contingent upon actual acts of assent (Flathman, 2002, pp. 60–

61) rather than the ideal contracts of rational deliberators. This austere limitation of political foundations

to a negative principle does not preclude the modus vivendi theorist from recognizing a supreme, unify-ing principle or spirit operating in the world; it merely precludes the claim that it can be codified as apolitical principle. The closest Hobbes comes to a fundamental positive political principle is his dictumthat we ought to seek peace, so far as it is obtainable (Hobbes, 1996 [1651], p. 92). But this is a dictum

of prudence.

15. John Gray and Stuart Hampshire are prominent examples (Gray, 2000; Hampshire, 2000). The

modus vivendi socialist is one who envisions an agreement among citizens to rules of property acquisi-

tion and ownership that accord with a socialist program.

REFERENCES

Beauchamp, T. L., & Childress, J. F. (2001). Principles of Biomedical Ethics (5thedition). New York: Oxford University Press.

Calhoun, J. C. (1992). ‘A disquisition on government,’ in R. M. Lence (Ed.), Union

and Liberty: The Political Philosophy of John C. Calhoun (pp. 5–78). Indianapo-lis: Liberty Fund.

Editors (2004, August 27). ‘Health and poverty,’ Wall Street Journal , p. A12.Engelhardt, H. T., Jr. (1996). The Foundations of Bioethics (2nd edition). New York:

Oxford University Press.Engelhardt, H. T., Jr. (2002). ‘Consensus formation: The creation of an ideology,’

Cambridge Quarterly of Healthcare Ethics, 11(1), 7–16.

Flathman, R. (1992). Willful liberalism: Voluntarism and Individuality in Political Theory and Practice . Ithaca, NY: Cornell University Press.

Flathman, R. (2002). Thomas Hobbes: Skepticism, Individuality, and Chastened Poli-

tics (New Edition). New York: Rowman & Littlefield.Gauthier, D. (1986). Morals by Agreement . Oxford: Clarendon Press.Goldie, M. (Ed.). (1997). Locke: Political Essays . New York: Cambridge University Press.Gray, J. (1995). Enlightenment’s Wake . New York: Routledge.Gray, J. (2000). Two Faces of Liberalism. New York: New Press.Gutmann, A., & Thompson, D. (2004). Why Deliberative Democracy? Princeton, NJ:

Princeton University Press.

Hampshire, S. (2000). Justice Is Conflict . Princeton, NJ: Princeton University Press.



250 G. Trotter

Hern, H. E., Jr., Koenig, B. A., Moore, L. J., & Marshall, P. A. (1998). ‘The differencethat culture can make in end-of-life decisionmaking,’ Cambridge Quarterly of

Healthcare Ethics, 7 , 27–40.Hobbes, T. (1962). ‘De corpore,’ in R. S. Peters (Ed.), Body, Man, and Citizen:

Thomas Hobbes (pp. 23–162). London: Collier Books.Hobbes, T. (1996 [1651]). Leviathan (Revised Student Edition edition). New York:

Cambridge University Press.Khushf, G. (1994). ‘Intolerant tolerance,’ Journal of Medicine and Philosophy, 19 ,

161–181.Kirk, R. (1985). The Conservative Mind (7th revised edition). Washington, D.C.: Regnery

Publishing, Inc.Kuczewski, M. G. (1997). Fragmentation and Consensus . Washington, D.C.:

Georgetown University Press.Kymlicka, W. (2002). Contemporary Political Philosophy: An Introduction (2nd edition).

New York: Oxford University Press.

Locke, J. (1988). Two Treatises of Government (Student edition). New York:Cambridge University Press.

Moreno, J. (1995). Deciding Together: Bioethics and Moral Consensus . New York:Oxford University Press.

Neal, P. (1997). Liberalism and Its Discontents . New York: New York University Press.

Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books.Rawls, J. (1971). A Theory of Justice . Cambridge, MA: Belknap Press of Harvard Uni-

versity Press.Trotter, G. (2001). ‘Pragmatism, bioethics and the grand American social experiment,’

American Journal of Bioethics, 1, W11-W30 Available: http://bioethics.net. Accessed June 10, 2002.

Trotter, G. (2002). ‘Bioethics and healthcare reform: A Whig response to weak con-sensus,’ Cambridge Quarterly of Healthcare Ethics, 11(1), 37–51.

Trotter, G. (2003). ‘Pragmatic bioethics and the big fat moral community,’ Journal of

Medicine and Philosophy, 28 , 655–671.Trotter, G. (2006). ‘When the trough breaks,’ American Journal of Bioethics, 6 (1),

W25-W26 Available: http://bioethics.net. Accessed February 14, 2006. Young, I. M. (1996). ‘Communication and the other: Beyond deliberative democ-

racy,’ in S. Benhabib (Ed.). Democracy and Difference: Contesting the Bound-

aries of the Political (pp. 120–135). Princeton, NJ: Princeton University Press.

Young, I. M. (2003). ‘Activist challenges to deliberative democracy,’ in J. S. Fishkinand P. Laslett (Eds.). Debating deliberative democracy (pp. 102–120). Malden,MA: Blackwell Publishing.

Zoloth, L. (1999). Health Care and the Ethics of Encounter . Chapel Hill, N.C.:University of North Carolina Press.

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