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by Marinos Diamantides
Ashgate Publishing, 2000
Review by Ann Munro Iverson on Nov 17th 2001

The Ethics of Suffering

Philosophers of law (at least those of a positivist bent) are most often preoccupied with questions concerning the validity conditions for statements that are purported to be lawful. They want to know, for example, if the validity of statutes is relative to their moral goodness, or to their source, or to their place in custom or conventional practice. These may seem rather dry topics for contemplation, but they invite reflection on some of the most provoking and challenging philosophical problems. Moreover, without some effort to wrestle with these and related issues one is without the resources to answer the so-called hard questions that engage legal theorists and laymen alike. Case law, after all, is rarely examined as evidence of the mechanical application of general rules to particular circumstances. Instead it is employed to illustrate the challenges associated with the interpretation or extension of legal standards. It can be hard work indeed to uncover the scope of even well-entrenched principles. For example, even the right of a patient to refuse medical treatment, something generally described as inviolate, may be infringed if there is doubt about his competence or the durability of his expressed desires. As the late Herbert Hart so famously stated, core cases inevitably give rise to exceptions (or generate a so-called penumbra of uncertainty).

Biomedical ethics, unsurprisingly, has its own set of uncertainties with which it must struggle. Not only are our bodies subject to an astonishing array of frailties, and our technological capacities often beyond our ability to appreciate their significance, but - and perhaps this is most troubling of all - our communities are far from arriving at a shared and stable system of values. Most ethicists are ready to intone the principles which have become their stock-in-trade, but there remains ample room for dispute concerning their ranking in particular circumstances. For better or worse, one cannot fix a value for individual principles prior to their application in specific cases. Autonomy sometimes has to yield to beneficence, whilst in only slightly different circumstances the converse may hold.

The relentless struggle to arrive at decisions we can rest easy with, or at least justify as reasonably defensible, is characteristic of these two often intersecting disciplines. It is not odd to suppose, therefore, that an ethicist might have wisdom to share with his judicial compatriot and vice versa. Still, few have made the connection in an explicit way, and the appearance of a text with the title The Ethics of Suffering: Modern law, philosophy and medicine, is more than a little exciting for those of us who straddle these disciplines. Furthermore, its inclusion in a series which promises to be relevant to "researchers, students, and practitioners worldwide" makes it appear too good to be true.

Unfortunately, Marinos Diamantides' attractive little book is precisely that. It is a volume of greatest interest to a specialised audience well versed in the philosophy of Emmanuel Lévinas. Although rather painstaking effort is devoted to an explication of the technical language that is an inextricable part of that system, I fear that many readers will be unwilling to struggle with the nuances essential for an adequate appreciation of the material. Biomedical ethicists and legal theorists certainly understand that each discipline (and indeed sub-discipline) relies on terms of art that can frustrate outsiders, but I'd wager that few would exhibit the patience necessary to assimilate the language of Being, authenticity, absurdity, passivity, and so on.

The book is at its most compelling, and vexing, when Diamantides brings Lévinas's concepts to bear on concrete cases such as Yetter and Northern. Here his treatment of the doctrine of informed consent is instructive because it problematises the liberal interest in the incompetent patient's ability to frame rationally defensible arguments in his effort to refuse treatment. Those trained in the Analytic tradition of Anglo-American jurisprudence undoubtedly will share Diamantides' belief that our well-worn principles become terribly strained in the effort to extend justice to the mentally incompetent (given that these standards are designed with an idealised rational, autonomous, actor in mind). They may even support his contention that compassion is sometimes as needful as justice. What is bound to excite some ire is the further claim that these are terms of identity - that judges ought to jettison the disinterested stance which is the hallmark of their profession and open themselves to the absurdity of suffering. It is perhaps best to let Diamantides speak for himself on this point:

In so far as the recognition of rights for the mentally vulnerable is linked to 'truth', either about their status or about their ability 'to understand', there is a deficit of judicial responsibility. Without personal responsibility for the unilateral act by which the mental patient is faced as other, so that he or she can be abstracted as an absolute rights-holder, the principles of patient autonomy and self-determination . . . lose all sense and appear absurd and arbitrary. However, the judges' utterly individuated, non-shareable personal responsibility in their proximity to patients can reverse this situation. Through assuming responsibility as their only authorisation, a judge can uphold the incompetent patient's autonomy (or, more precisely, can impute autonomy to the patient) and shift the accusation of absurdity from the principles of law to the intrinsic absurdity of the patient's situation. After all, human suffering is, and must be responded to obsessively because it is totally absurd (58).

The difficulty with such a position, at least for those of us on the Analytic side of divide which cuts through the philosophical discipline, is that it makes universalisable recommendations impossible. This may be perceived as an advance, particularly if one reflects on the lack of significance that the individual sufferer generally has in the impersonal institutional contexts of law and medicine, however, it leaves the judge or ethicist in an unaccustomed and indefensible position. His function is no longer to judge, but to empathise. And if his human sympathies have atrophied as a consequence of his role we may have something to fear.

For good or ill, I believe that The Ethics of Suffering will engage few on the applied end of the medical or legal professions. His carefully written text, however, may eventually find an eager audience in graduate philosophy classes. It is a shame that such challenging material is advertised much in the manner of an ordinary casebook. It may reach a rather large but unappreciative public, and elude those who might benefit from its insights.

© 2001Ann Iverson

Ann Iverson is a doctoral candidate in the philosophy programmeat McMaster University in Hamilton, Ontario. Although she specialises in legal theory, she also works in applied ethics and is currently serving as the clinical ethics intern for the Hamilton Health Sciences Corporation.