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nature of genetics. In addition to these challenging topics, a few methods and issues have emerged that have dramatically expanded the scope and depth of contempo- rary Jewish bioethical discourse.

Whereas since the mid-twentieth century Jewish bioethical discourse has been dominated by formalist or legalist methodologies in which laws, rules, and principles dominate and unequivocal conclusions are a must (a few Orthodox Scholars include Bleich 1977-; Rosner 1986; Steinberg 2003; Abraham 2004; of non-Orthodox scholars, see Freehof and Zemer 1995; Dorff 1998), a turn toward extralegal sources, especially midrash, has developed in which contexts, narratives, and their inherent ambiguities are investigated and celebrated (Newman 1998; Cutter 2011). In addition to taking stories seriously, this turn has given rise to bioethical discourses attentive to textual reasoning, wherein closer critical analyses of classic sources point to ways of thinking through bioethical conundrums rather than prescribing or proscribing certain actions (Zoloth 1999; Belser 2011; Crane 2013). This increasing attention to textual details and their margins has also brought to the fore greater debate about the ethics of caring for marginalized entities and identities, characteristics, and classes. Disability studies, sexual and gender diversities, Judaic virtue ethics, and animal studies are just a few of the emerging fields enriching contemporary Jewish bioethical discourse (Abrams 1998; Schofer 2010; Dorff and Crane 2013).

SEE ALSO Abortion: IV. Jewish Perspectives; Authority in Religious Traditions; Christianity, Bioethics in; Death:

IV. Western Religious Thought; Death, Definition and

Determination of: III. Philosophical and Theological Perspectives; Eugenics: I. Historical Aspects; Genetics and Racial Minorities; Islam, Bioethics in; Nazi Legacy and Bioethics; Near and Middle East, Bioethics in:

IV. Israel; Population Ethics: V. Jewish Perspectives;

Research, Unethical; Women, Historical and

Cross-Cultural Perspectives


Abraham, Abraham S. 2004. Nishmat Avraham: Medical Halachah for Doctors, Nurses, Health-Care Personnel and Patients. 3 vols. New York: Mesorah Publications.

Abrams, Judith Z. 1998. Judaism and Disability: Portrayals in Ancient Texts from the Tanach through the Bavli . Washington, DC: Gallaudet University Press.

Belser, Julia Watts. 2011. Reading Talmudic Bodies: Disability, Narrative, and the Gaze in Rabbinic Judaism. In Disability in Judaism, Christianity, and Islam: Sacred Texts, Historical Traditions, and Social Analysis, edited by Darla Schumm and Michael Stoltzfus, 5 27. New York: Palgrave Macmillan.

Bleich, J. David, 1977. Contemporary Halakhic Problems , 6 volumes, New York: Ktav Publishers.


Crane, Jonathan K. 2013. Narratives and Jewish Bioethics . New York: Palgrave Macmillan.

Cutter, William, ed. 2011. Midrash and Medicine: Healing Body and Soul in the Jewish Interpretive Tradition. Woodstock, VT:

Jewish Lights Publishing.

Dorff, Elliot N. 1998. Matters of Life and Death: A Jewish Approach to Modern Medical Ethics. Philadelphia: Jewish Publication Society.

Dorff, Elliot N., and Jonathan K. Crane, eds. 2013. Oxford Handbook of Jewish Ethics and Morality. Oxford: Oxford University Press.

Jacob, Walter, and Moshe Zemer, eds. 1995. Death and Euthanasia in Jewish Law: Essays and Responsa . Pittsburgh, PA:

Freehof Institute of Progressive Halakhah.

Newman, Louis E. 1998. Past Imperatives: Studies in the History and Theory of Jewish Ethics. Albany: State University of New York Press.

Novak, David. 2007. The Sanctity of Human Life. Washington, DC: Georgetown University Press.

Preuss, Julius. 1978. Julius Preuss Biblical and Talmudic Medicine . Translated and edited by Fred Rosner. New York: Sanhedrin Press.

Reconstructionist Rabbinical College. Center for Jewish Ethics. 2002. Behoref Hayamim / In the Winter of Life: A Values-Based Jewish Guide for Decision Making at the End of Life . Wyncote, PA: Reconstructionist Rabbinical College Press.

Rosner, Fred, 1986. Modern Medicine and Jewish Ethics . New York: Ktav Publishing House.

Schiff, Daniel. 2002. Abortion in Judaism. Cambridge, UK:

Cambridge University Press.

Schofer, Jonathan Wyn. 2010. Confronting Vulnerability: The Body and the Divine in Rabbinic Ethics. Chicago: University of Chicago Press.

Steinberg, Avraham. 2003. Encyclopedia of Jewish Medical Ethics. 3 vols. Translated by Fred Rosner. New York: Feldheim Publishers.

Zoloth, Laurie. 1999. Health Care and the Ethics of Encounter:

A Jewish Discussion of Social Ethics. Chapel Hill: University of North Carolina Press.

Jonathan K. Crane

Raymond F. Schinazi Junior Scholar in Bioethics and Jewish Thought, Center for Ethics, Emory University


Justice most fundamentally concerns the respect due each of us. Broadly conceived, justice comprises the part of ethics that addresses what people deserve or have a right to as opposed to what is the most compassionate or responsive to the good of others. Thus we generally distinguish between justice, on the one hand, and charity, on the other. Justice encompasses both distributive and


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nondistributive aspects, described below. The primary focus of this entry will be distributive justice.


When there are not enough resources to provide them to everyone who stands to benefit, we face ethical questions about how we should distribute resources and which individuals or groups should receive priority. Distributive justice traditionally refers to the problem of devising normative principles for distributing income and wealth in society. However, it is generally understood more broadly to include the distribution of other social goods, such as health care, education, housing, and the powers and authorities attached to jobs and positions. With distributive justice, a necessary background assumption is always that the resources or benefits to be distributed are limited. An analogy sometimes employed in describing distributive justice compares the situation of those needing scarce resources to the plight of people adrift on a lifeboat. Assuming the lifeboat has a limited carrying capacity and not everyone clamoring in the water can be saved, the distributive justice question is, Who should be saved? According to what criteria? In addition to the distribution of scarce resources, justice concerns nondistributive senses of giving people their due. Aristotle (1984) describes formal justice in its broadest sense as requiring that we treat like cases as like. While this clearly has implications for how we distribute scarce resources, it also carries implications for not discriminating for or against persons on morally arbitrary grounds. In public education or public transportation, for example, access for people with disabilities is recognized as a right in both law and ethics. Moreover, disability activists have pointed out that whether or not a disability constitutes a handicap often turns on society s willing- ness to accommodate the needs of disabled persons. Another example of nondistributive justice is corrective justice, which deals with the punishments individuals deserve when they perpetrate crimes against others. Nondistributive justice also may focus on the social conditions that support or interfere with individuals ability to develop and exercise their capacities. For example, conditions such as poverty, lack of education, and living in an unsafe neighborhood place people at increased risk of morbidity and early death. Since these conditions can be modified through policies such as redistributing wealth, increasing access to education, or improving police protection, we can raise the ethical question of whether people have a right to have such conditions modified and their associated risks diminished. Solutions to both distributive and nondistributive justice may draw on the ethical theories of libertarianism, egalitarianism, utilitarianism, and contractarianism, dis- cussed below.


Answers to the question of how to distribute scarce resources among different individuals or groups in society will often take either liberty, or equality, or some particular mix of liberty and equality as a fundamental value. Generally speaking, the more we emphasize liberty, the more we must be willing to tolerate departures from equality. Likewise, the more we place emphasis on equality, the more we must infringe on individuals liberty to produce a more equal distribution. Scholars propose a variety of solutions to the problem of distributive justice. It has been proposed, for example, that the ultimate criterion for distributing scarce goods should be the free market. According to this approach, those who can afford to pay for a benefit, such as a seat on the lifeboat, should be awarded that benefit. Others argue that a standard of equality should be established. This approach may require, for example, implementing a fair random method, such as a lottery, that gives each person an equal opportunity to obtain a resource. Still others propose contractual fairness or the greatest happiness for the greatest number as the most ethical solution to the problem of distributive justice. These proposals are set out more precisely as principles of justice, understood as ethical principles designed to guide the distribution of burdens and benefits among different individuals or groups in society. Such principles are justified by showing that they are part of a broader ethical framework or theory, which is itself supported by establishing that it is preferred over the available alternatives. It is helpful to distinguish four central theories of distributive justice.

Libertarian Justice. Libertarian theories of justice under- score the value of individual liberty either (1) as a basic moral principle or right or (2) as derivative from other ethical principles. Thus libertarians might highlight the essential role liberty plays in the development of an individual s character and self-realization. Alternatively it might be claimed that individuals possess a basic or natural right to exert control over themselves and the property they have fairly acquired. Liberty itself can be interpreted in both negative and positive ways, that is, in terms of absence and presence. For instance, a negative interpretation may refer to the absence of frustrations or constraints on what a person actually desires to do. Persons are free in this respect if they are not prevented from doing what they actually want (at the present time) to do. For example, if someone is free from jail, that person is free in the sense that something he or she regards as an impediment or obstacle to doing what he or she desires to do has been removed. Likewise if a person is free from a gambling addiction, he or she is no longer impeded by a compulsion to gamble. To infer this about a person is to think in terms of


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negative liberty. This interpretation is most closely associated with the libertarian position, which holds that persons are free if government does not block or interfere with their doing what they choose to do. By contrast, when liberty is interpreted as positive

freedom, then liberty is identified with the presence of alternatives. People are free in this sense if they can do considerably more than they want (at the present time) to do. It is not enough that someone is not being kept from doing what that person actually desires to do; to be free requires also that a person could have done otherwise had that person s desires been different than they actually are. So understood, it is possible for an individual to be constrained without having any awareness of being constrained, and it is possible for a person to lack freedom even when that person s actual desires are not frustrated.

A lack of positive freedom occurs when an individual

cannot choose otherwise either because that person has no alternatives or because he or she has a very limited range of alternatives. For example, a person can be having the time


his or her life while locked in a room, either because he


she does not know that the door is locked or because he

or she does not care. Likewise a gunman can follow

someone to the polls and force that person to vote for the candidate he or she had intended to vote for anyway. In these situations a person s actual desires are not frustrated,

so he or she is free according to the absence-of-frustrations model. However, according to the alternative positive conception of freedom, that person is not free. Even though our actual desires are not being frustrated, we cannot leave the locked room or vote for a different candidate were we to change our minds and decide we wanted to do these things. Positive freedom is valuable, because in the event that our desires or preferences change, we like to know that we are free to pursue alternatives. As noted already, libertarians give emphasis to liberty interpreted as the absence of constraints on what one chooses to do. Drawing on the thought of scholars such as

Friedrich Hayek, libertarians hold that the conduct of individuals, not the actual distributive result, is what can

be properly judged as just or unjust. Hayek, for example,

maintains that goods should be distributed based on the workings of the marketplace and people should not expect

to be compensated based on their effort, need, or equal

value as a person. Instead, what we should expect to receive is the amount of wealth (or other good) that corresponds to the value of our services to others. Hayek calls attention to the fact that people differ in many attributes that we cannot alter, such as their strength, intelligence, skill, knowledge, and perseverance, as well as their physical and social environments. As a result attempting to create a particular distributive outcome, such as an equal distribution, would require that


government continually regulate individuals lives. Once remuneration was made not for the value of labor but to create equal shares, government would have to essentially take over the whole distributive process. In The Mirage of Social Justice , Hayek claims that to genuinely achieve equal bargaining positions

government would have to control the whole physical and human environment of all persons, and the more government succeeded in these endeavours the stronger would become the legitimate demand that, on the same principle, any still remaining handicaps must be removed. This would have to go on until government literally controlled every circumstance which could affect any person s well-being. (1990 [1976], 219 20)

Perhaps the best-known contemporary example of libertarianism is Robert Nozick s (1974) entitlement theory, which holds that what people deserve or have a right to is what they have justly acquired or transferred. The entitlement theory consists of three principles specifying when acquisitions and transfers are just. The principle of just acquisitions concerns the original acquisition of unheld things and holds that an original acquisition of goods is just if it is not acquired through blatantly unfair means, for example, stealing, enslaving, defrauding, or otherwise coercing people (Nozick 1974, 15053). A person who acquires a holding in accordance with this principle is entitled to that holding. The principle of just transfer addresses the transfer of holdings from one person to another and holds that an exchange of goods is fair provided it meets similar kinds of standards, that is, it is not coercive, does not involve excluding some people from an exchange, and so on (Nozick 1974, 15053). A person who acquires a holding from another person in accordance with the requirements of just transfer is entitled to the holding. Since no one is entitled to a holding except by repeated application of the principles of just acquisition and just transfer, holdings that violate either of these principles must be dealt with. The final justice principle addresses the rectification of unjust holdings. The principle of rectification directs that any distribution of goods that did not come about in these ways is unfair and we should rectify it by creating the distribution that would come about if the unfair process had not occurred (Nozick 1974, 150 53). The entitlement theory draws on the absence-of- frustrations model of liberty in the sense that it would be wrong, according to this theory, to interfere with the actions of individuals who are acquiring or transferring goods through buying and selling them on a free market, provided the market conformed to the principles of just acquisition and just transfer. The fundamental value


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underlying this approach is that what makes a distribution just or unjust is how we arrived at it. We cannot tell by simply considering the end result, for example, consider- ing which groups are advantaged or disadvantaged in the final outcome or considering how well the final outcome lines up with a desired end, such as ensuring that everyone has a minimal share of resources. Instead, to evaluate the justice of a distribution we must understand its origins. Moreover, it would be unfair to interfere with individuals liberty by coercing people to give more to those who are less well-off to produce a more equal distribution of resources. To focus on the ends or outcomes and produce

a desired ideal, such as equality, is specifically rejected on the ground that it allows far too much intrusion into personal liberty. For example, to improve the condition of the worst off, we would need to intrude too deeply into people s lives, and we would undercut the very idea of a free society. As Nozick notes,

We are not in the position of children who have been given portions of pie by someone who now makes last minute adjustments to rectify careless cutting. There is no central distribution, no person or group entitled to control all the resources. [Instead,] what each person gets, he gets from others who give to him in exchange for something, or as a gift. In a free society, diverse persons control different resources, and new holdings arise out of the voluntary exchanges and actions of persons. (1974, 148)

In a just society the distribution of resources will be the product of many individual decisions that the different individuals involved are entitled to make. Contemporary variants of libertarianism include libertarian feminism, which places emphasis on the state as a source of women s oppression and seeks to address

this, for example, by abolishing laws that limit women s liberty. According to Susan Moller Okin, the opportunity to live as fulfilling and as freely chosen lives as men can may also require laws that protect women from sex-based discrimination (1999, 10). For example, in hiring or promotion, candidates who are equally capable of performing a job should not be discriminated against on the basis of sex. The slogan that the personal is political

is used by some feminists to argue for additional laws that

protect women against abusive conditions in their personal lives, such as domestic violence or such traditional cultural practices as wife murder. As Okin notes, Culturally endorsed practices that are oppressive to women can often remain hidden in the private or domestic sphere (1999, 23). Okin gives the example of the 1996 law criminalizing cliterodectomy passed by the US Congress and criticizes US physicians who argued that cliterodectomy is a private matter and as such should be

decided by a physician and family, not the US Congress (1999, 23).

Egalitarian Justice. Whereas libertarians emphasize the value of individual liberty, egalitarians emphasize the equal moral worth and dignity of all individuals. This approach highlights our common humanity and reflects a distinctively modern vision of justice. In premodern times it was widely assumed that certain people ought to live in need or would not work otherwise or that poverty was part of a divine order. Neither Plato nor Aristotle, for example, raise the possibility that everyone s needs ought to be met or that the state ought to organize the distribution of goods among its members to accomplish this. Contemporary egalitarian scholars, by contrast, argue that everyone deserves certain goods independent of merit and that merit is not supposed to begin until some basic goods (housing, healthcare, and education) have been distributed to everyone (Fleischacker 2004, 5). Accord- ing to egalitarianism, the value of persons is independent from the circumstances or relations in which they exist, and it holds by virtue of each person s intrinsic qualities. The value of a person is incalculable and cannot be quantified or compared with the worth of any other person. Instead, all people deserve to be regarded as moral equals. Expressing the modern vision of justice, the scholar Sara Lawrence-Lightfoot (2000) regards respect not as a debt we owe people because of their attained or inherent position but instead as a form of recognition that creates symmetry in relationships by acknowledging a shared humanity. What exactly egalitarianism requires may be inter- preted in a variety of ways. A commitment to equality need not imply that everyone should receive an equal share of resources. It might instead be understood as implying that people deserve or have a right to equal respect, equal opportunity, or equality in terms of each persons basic functioning capability. The socialist approach to justice, which draws on the ideas of Karl Marx and Friedrich Engels (1998 [1848]), provides one interpretation of egalitarianism. According to socialism, a fully just society is one where the class distinctions associated with capitalist society gradually disappear. Marx himself predicted that the breakdown of capitalist society, including the abolition of private property, would take place as a result of historical processes and that capitalist society would ultimately be replaced by a future communist society. In The Communist Manifesto, Marx and Engels proclaim that capital is a collective product, and only by the united action of many members, nay, in the last resort only by the united action of all members of society, can it be set in motion. Capital is, therefore, not a personal, it is a social power(1998 [1848], 69). The guiding principle during the first phase of transition from capitalism to communism would be to


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each according to his contribution,which would later be replaced with a principle of distributing capital from each according to his ability, to each according to his needs(Marx 189091, 11). Critics note that there is no guarantee that even if all contribute according to their abilities all needs can be met. Moreover there is little guidance as to what justice requires if some needs must go unmet. Although Marx and Engels are an important source of ideas for egalitarian theories of justice, it is noteworthy that neither of these political theorists discusses justice as such or regards it as anything more than a philosophical abstraction, impotent to create revolution or social change. As Engels proclaims, the abolition of class antagonisms and class distinctions depends on forces of history unfolding, not on the conceptions of justice and injustice held by any armchair philosopher(1990, 211). A somewhat different construal of egalitarian justice underscores the importance of equality in our basic functioning capabilities. This approach focuses more on whether or not people can effectively achieve what they want to do or be and less on the actual wealth or income they possess. Pioneered by Amartya Sen (1979, 2002, 2009), what has become known as the capability approach holds that what matters is not that people have an equal share of resources but their ability to convert these resources into real capabilities and functioning. Sen insists that we need to consider first and foremost what people are actually able to do or to be. While not all capability theorists set attaining capability equality as a goal, those who do endorse an egalitarian approach to justice. Martha Nussbaum (2003, 2006), for example, seeks to establish a set of basic capabilities required for human flourishing and argues for equality of these basic capabilities. She maintains that justice requires that each and every person be sustained in each of his or her basic capabilities at a threshold level (Nussbaum 2000, 2006). The capabilities Nussbaum considers basic include:

life being able to live to the end of a human life of normal length

bodily health being able to have good health, being adequately nourished, being able to have adequate shelter

bodily integrity being able to move freely from place to place

senses, imagination, and thought being able to imagine, think, and reason and to use the senses and being able to do these things in a way informed and cultivated by an adequate education

emotions being able to have attachments to things and persons outside ourselves; being able to love those who love and care for us


practical reasonbeing able to form a conception of the good and to engage in critical reflection about the planning of one s life

affiliation being able to live for and in relation to others, to recognize and show concern for other human beings, and to engage in various forms of social interaction

other species being able to live with concern for and in relation to animals and the world of nature

play being able to laugh, to play, to enjoy recreational activities

control over ones environment having control over one s political and material environment, such as having the rights of freedom of speech and freedom of association and being able to hold property; having the right to seek employment on an equal basis with others.

Utilitarian Justice. In contrast to libertarians and egalitarians, utilitarians conceive of justice as derived from the more fundamental principle of utility. A principle of utility expresses the general idea that we should bring about the greatest good for all those affected by our actions. This principle can be interpreted to apply either to each individual act (act utilitarianism) or to general rules (rule utilitarianism). The notion of good can also be understood in a variety of ways. Classic utilitarians identify the good with pleasure (Jeremy Bentham 183843 [1834], 1962 [1789]) or happiness (John Stuart Mill 1975 [1869], 1998 [1861]), or recognize a plurality of goods, such as friendship, beauty, and truth (G. E. Moore 1912). Contemporary preference utilitarians interpret good in terms of what satisfies an agent s desires or preferences. Contemporary welfarist interpreta- tions define good by means of various values that advance individuals welfare (Sen 1979, 2002, 2009). Mill, one of the founders of utilitarianism, argues that what distinguishes justice from all other branches of morality is that justice is concerned with certain moral requirements which, regarded collectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others (1998 [1861], 376). According to Mill, rights are claims to a very special class of benefits, and desire for these benefits is so important that we give them a special name. The benefits rights protect, such as physical security, property, and life, are especially vital to well-being and are needed by all persons. In light of this it is almost always the case that we should respect others rights, because doing so will maximize utility. Using utilitarian principles as his starting point, Mill was one of the early champions of women s rights. In The Subjection of Women he argues in support of


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equal rights for women and predicts that equality of rights would abate the exaggerated self-abnegation which is the present artificial ideal of feminine character (Mill 1975 [1869], 476).

Mill holds that rights entail corresponding justice duties, and when we call anything a person s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law or by that of education and opinion (1998 [1861], 370). For Mill, although the principle of utility remains the only absolute requirement, duties of justice are more nearly absolute than any other duty. Yet Mill cautions against the belief that justice and rights are separate or distinct from utility. Instead, he is committed to the view that justice is grounded ultimately in a principle of utility. On those rare occasions when rules of justice do not on the whole promote utility, considerations of justice must give way to the more fundamental value of promoting the greatest good.

Whereas Mill embraces the idea of rights and argued that recognizing rights will in general produce the greatest happiness, Bentham takes a quite different stance. Although a strong advocate for individual legal rights, Bentham opposes any broader idea of natural or human rights that are not explicitly imposed by law. In a famous passage he critiques the concept of natural rights put forth during the French Revolution: Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts (Bentham 1838 43 [1834], 501).

Critics of utilitarianism raise a number of salient objections. A well-established criticism has been that it is unfair to require some individuals to make grave sacrifices to bring about the greatest good. Elizabeth Anscombe (1958), for example, argues that certain actions, such as punishing an innocent person, are forbidden whatever consequences threaten. In response proponents of utilitarianism defend their view by claiming that such sacrifices, while initially objectionable, are less objection- able upon reflection. Kai Nielsen (1972) defends utilitarianism on these grounds, claiming that there are circumstances where sacrificing the innocent must be reluctantly assented to or regarded as something that one must do. Another prominent objection to utilitarianism holds that the theory bars individuals from giving priority to projects and relationships that are central to their lives. For instance, in distributing resources we typically feel a special obligation to provide for family members and loved ones over and above strangers, even if it would produce more good simply to distribute resources to the most needy. Critics contend that by requiring that we treat all people s utility the same, utilitarianism requires too much. Defenders of utilitarian principles, such as

Peter Singer (1972), reply to this objection by arguing that such partiality is an attitude that must be carefully circumscribed and eventually set aside. Finally, from a practical standpoint opponents of utilitarianism note that the theory would be difficult to implement. It is notoriously difficult to know, for example, how to interpret all goods in terms of a single measure of utility and then compare the utility of different actions or policies for all persons affected by the action or policy in perpetuity.

Contractarian Justice. A different approach to the problem of distributive justice is found in the work of John Rawls. In A Theory of Justice (1971) Rawls argues that principles of justice are the principles we would arrive at if we were to choose on the basis of a fair procedure. Like Immanuel Kant before him, Rawls holds that principles of justice consist of the principles that free and rational persons would choose to impose upon themselves. Rawls s description of a fair initial situation for choosing justice principles is set out more fully in what he calls the original position.In the original position hypothetical parties deliberate under a veil of ignorance, which renders them ignorant of their social positions, natural talents and liabilities, psychological makeups, and conceptions of the good life. The original position is a fair position for choosing principles of justice, Rawls argues, because it represents an impartial point of view, guaranteeing that parties cannot tailor principles to their own advantage. The original position is often understood as egalitari- an, because the only principles that could emerge from Rawls s original position are principles that treat persons as substantive equals. Thus perfectionist principles that favor an elite group in society are excluded from serious consideration. Parties in an original principle would also reject utilitarian principles of distribution, because a rational person would not agree to a distribution that maximizes the aggregate advantages irrespective of the effect on him or her personally. Rawls holds that parties in an original position would reason in accordance with a maximin strategy. Such a strategy ranks alternatives according to their worst possible outcomes and then chooses the alternative that maximizes the minimum situation. Employing this strategy, parties in the original position would choose the distributive principle with the best worst case. Rawls (1971) holds that the following two principles of justice would be chosen by parties in the original position. The first is the principle of greatest equal liberty, which holds that each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties of all. (Rawls modified this principle in his 1993 Political Liberalism , discussed below.) The second principle has


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two parts. Part one is called the principle of fair equality of opportunity and holds that social and economic inequal- ities are to be arranged so that they are to the greatest benefit of the least advantaged. Part two is known as the difference principle and holds that social and economic inequalities are to be arranged so that they are attached to positions and offices open to all under conditions of fair equality of opportunity. Taken together these principles comprise the theory of justice as fairness and govern what Rawls calls the basic structure of society (Rawls 1971, 7), which consists of the major political and social institutions of a liberal society. The basic structure distributes the benefits and burdens of social life, such as basic rights and liberties, jobs and offices, and income and wealth. A guiding idea behind Rawls s approach is that those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system (1971, 73). The goal is to mitigate the influence of social contingencies and natural fortune on distributive shares, because from a moral point of view these influences are arbitrary. For this reason, free- market institutions, which are the hallmark of libertarian approaches, must be set in a framework of political and legal institutions that regulate them and preserve fair equality of opportunity.

After the original 1971 publication of A Theory of Justice , Rawls modified his theory of justice as fairness to address the problem of political stability. In A Theory of Justice , Rawls assumed that society would be stable over time, because everyone would adopt the two principles he had outlined. He later acknowledged the enduring pluralism of comprehensive moral doctrines in a diverse society and revised the theory to account for this. In Political Liberalism , published in 1993, Rawls proposes that justice as fairness be understood as a political conception, not as a comprehensive moral theory or a part of one. As such it can be the object of an overlapping consensus among people who hold a plurality of different, reasonable comprehensive moral or other doctrines. According to Rawls, we arrive at the political conception of justice as fairness by drawing on the various comprehensive moral or other views we hold. The central insights of justice as fairness are, Rawls claims, already latent in the public political culture of a democratic society and already incorporated into a plurality of views. Thus despite ineradicable pluralism, the political conception of justice as fairness can remain stable over time. The new account thus amends Rawls s original justification for the two principles. In a 2001 volume, Justice as Fairness: A Restatement , Rawls explains that, first, the original position now serves a mediating function, helping unify diverse views into a single coherent political conception of justice. Second, the


justification for the two principles appeals not only to maximin reasoning but also to reciprocity. The difference principle, for example, expresses an ideal of reciprocity, because starting from a point of equal division, it requires that those who gain more do so on terms acceptable to those who gain less. Contemporary critiques of contractual justice include liberal feminists, such as Jean Hampton (1993), who argue that social arrangements in personal life should be characterized by fairness or justice and that this domain is largely overlooked by contractarian theories. Hampton maintains that for a personal relationship to be fair it is required that both parties to it could reasonably accept the distribution of costs and benefits (that is, the costs and benefits that are not themselves side effects of any affective or duty-based tie between us) if it were the subject of an informed, unforced agreement in which we think of ourselves as motivated solely by self-interest (1993, 240). Likewise Okin (1989) objects to Rawls s Theory of Justice for failing to consider the internal justice of the family. She notes that Rawls sometimes characterizes deliberators in the original position as the heads or representatives of families; as a result they are not well situated to determine questions of justice within families. Other critiques of contractarian justice derive from disability theorists, such as Eva Kittay (1999), who object to the assumption that all citizens be regarded as physically and mentally competent and hence able to participate fully in schemes of cooperation. Rawls, for example, assumes that parties in the original position are intellectually competent. In Political Liberalism , Rawls states, Since we begin from the idea of society as a fair system of cooperation, we assume that persons as citizens have all the capacities that enable them to be cooperating members of society and we say that a person is someone who can be a citizen, that is, a normal and fully cooperating member of society over a complete life (1993, 20, 18). This idealizing assumption has led disability theorists to conclude that Rawls s and other contractarian approaches that share this assumption cannot possibly provide for the justice claims of people who are unable to participate in the contracting process or are unable to contribute to the production of goods required to sustain them. This concern is particularly vexing for Rawlsian theory, because Rawls explicitly regards natural fortunes and liabilities as arbitrary from a moral point of view, and he rejects the idea that citizens have a desert-based claim on what they are able to produce.


Although there are competing conceptions of justice and no single, agreed-upon approach, it still may be possible to


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arrive at consensus about practical justice concerns. A convergence of opinion around an idea that individuals arrive at in different ways is possible using different justificatory support. For example, individuals with diverse justice perspectives may nonetheless agree about the practical idea that individuals have a right to basic health care. Furthermore, even though there is not a single, agreed-upon theory of justice, there may nonethe- less be shared features of the different justice accounts, a kind of common morality with respect to justice, that we can draw on when addressing practical concerns (Beau- champ and Childress 2009). Such an idea lies behind international moral doctrines, such as the United Nations General Assembly Universal Declaration of Human Rights (1948) adopted by nations holding diverse political and moral doctrines.

The Allocation of Health Care. In practical moral debates claims of justice often intersect with particular issues in bioethics, such as the allocation of health care resources, public health, and research ethics. This section considers each of these in turn. When allocating scarce health care resources, who should have priority? This question arises especially in situations where people who are already sick seek access to scarce or expensive medical services. Sometimes called a medical paradigm of justice, the focus is on distributing health care to people who are already suffering from medical problems and require medical and other health care services (Jecker 2008, 5). The question of how to justly allocate health care services is addressed by proposing and defending criteria for rationing specific health care resources, such as organs for transplantation or beds in an intensive care unit. Hypothetically scarce health care resources could be rationed on the basis of medical benefit, quality and length of life, social worth, lottery, chronological age, willingness to risk illness, or ability to pay, among other possibilities. Often a combination of rationing criteria is proposed. Thus John Kilner (1990) argues that eligibility for scarce lifesaving resources should be distributed so that patients must first satisfy the criteria of medical benefit and willingness to accept treatment, after which resources should be distributed to eligible patients on the basis of imminent death followed by distribution based on the criteria of resources required (those who require less of a scarce resource receive priority over those who require more) and special responsibilities (those who care for dependents receive priority over those who do not). Any remaining resources should be allocated to eligible patients on the basis of a random selection method, such as a lottery. Another well-known rationing proposal is Nicholas Rescher s (1969) utilitarian scheme for allocat- ing exotic medical lifesaving therapy to patients on the

basis of their likelihood of successful treatment, life expectancy, family role, potential future contribution, and past service. George J. Annas (1985) defends transplant selection based on medical criteria followed by criteria of immediate need and first come, first served. Other proposals, such as Norman Daniels and James Sabin s (1997, 2002) accountability for reasonableness, set forth a process for fairly deliberating about health care rationing without specifying particular rationing criteria. They argue that a Rawlsian principle of fair equality of opportunity provides a basis for requiring that health systems reduce or eliminate barriers that prevent fair equal opportunity. The primary basis for affording people health care is to correct for the impact of disease and disability on normal, species-typical opportunity, and a right to health care can be defended as a special case of a right to equal opportunity. However, they note that in the final analysis the outcome of a fair process for deliberating about health care rationing will depend on the more fundamental values and principles of justice one accepts.

Public Health. Even more fundamental than the distribution of health care services among already sick people is the problem of justice in public health. Justice in public health concerns how we ought to distribute risk for disease and early death in a population. What is distributed is not health care services per se but the risk for disease and early death among people who are not already sick. Rather than beginning by setting priorities in a health care system, this approach considers non health system questions, such as how governments distribute risk for disease in a population, either directly by distributing access to the health care system or indirectly by distributing the social and material conditions that affect the health of populations. This approach requires looking upstream and asking how disease and suffering comes about. For example, safe workplaces and neighborhoods, access to clean drinking water, and income inequality in a population are social factors that determine the health of a population. Broadly construed, public health ethics draws attention to the impact of the social and the natural worlds on the health of populations and asks how people and governments should respond to these conditions to preserve or promote health. The approach of Madison Powers and Ruth Faden (2006) illustrates how justice theories can be brought to bear in the area of public health. They develop a version of egalitarianism that holds that we should secure a certain level of health for all as part of a larger obligation to promote human welfare. As they understand it, human welfare includes health, personal security, reasoning, respect, attachment, and self-determination. For all six dimensions of welfare, social justice aspires to secure and maintain a sufficient level of well-being for everyone.


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Powers and Faden emphasize sufficiency of well-being, not equality, and their account is egalitarian only in the broad sense that certain types of inequalities stand in need of justification (Powers and Faden 2006, 50 51).

Research with Human Subjects. In contrast to justice in health care and public health, justice in the conduct of research with human subjects raises primarily nondistri- butive justice questions. Thus a central question in conducting research with human subjects is the respect due to the individual research subject. Under what conditions does research exploit the research subject? Nussbaum (1999, 218) has argued that it is exploitative and unethical to regard individuals merely as things devoid of any interests of their own and that this can occur in research and other contexts by a variety of means, such as using a person merely as a tool for one s own purposes; disregarding a person s autonomy; treating an individual as lacking agency and action; considering people to be interchangeable with others of the same type or with objects; violating boundary integrity by regarding it as permissible to intrude into another s physical space; regarding persons as commodities that can be owned, bought, or sold; or assuming that a person s experience and feelings need not be taken into account.

Exploitation of research subjects has occurred repeatedly throughout history. Perhaps the best-known example is the atrocities committed during World War II by Nazi physicians, who experimented on prisoners of war and civilians in occupied countries without the subjects consent and committed murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts. The Nuremberg trials following World War II held individuals accountable for these and other war crimes. The so-called DoctorsTrial in 1946 involved twenty-three leading German physicians and administrators.

Past atrocities in the conduct of research with human subjects are by no means limited to Nazi doctors. Henry Knowles Beecher (1966) documented twenty-two studies involving unethical methods and practices in scientific research in the United States, all of which were published in US medical journals after World War II. Among these was the infamous Tuskegee syphilis experiment conducted by the US Public Health Service between 1932 and 1972 in which the natural progression of untreated syphilis was observed in poor, African American men from Macon County, Alabama. The research subjects were never told that they had syphilis and were never treated for it. Beecher also documented the controversial experiments conducted at the Willowbrook State School in New York from 1956 to 1972. The research involved infecting mentally disabled children with a mild form of hepatitis to study the natural history, prevention, and treatment of the disease.


Avoiding the exploitation of research subjects requires establishing ethical guidelines to govern research and protect research subjects. The 1947 Nuremberg Code developed out of the DoctorsTrial is one example of such protections. It consists of a set of ethical principles for the conduct of research, most prominently the requirement to obtain the informed consent of research subjects. Subsequent to Nuremberg, in 1974 the World Medical Association adopted the Declaration of Helsinki, which allows research with subjects who cannot consent provided that informed consent can be obtained from a legally authorized representative. The Declaration of Helsinki also imposes the requirement that research protocols be submitted for consideration, comment, guidance, and approval to a research ethics committee before the study begins and the requirement that the ethics committee be independent of the researcher, the sponsor, and any other undue influence.

SEE ALSO Children: II. Rights of Children; Community and Communitarianism; Contractarianism and Bioethics; Epistemic Injustice; Ethics: II. Task of Ethics; Global Health Inequalities and Inequities; Global Justice; Health Care Resources, Allocation of entries; Human Rights; Humanitarian Relief; Immigrants, Access to Health Care; Liberty; Long-Term Care: IV. Financing, US and International; Nazi Legacy and Bioethics; Research, Human: Historical Aspects; Rights; Social Justice; Utilitarianism


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Nancy S. Jecker

University of Washington School of Medicine, Department of Bioethics and Humanities