1
The Liberal State

Newspapers and television often feature controversial subjects arising out of health care. More and more these stories seem to underscore conflicts between institutions and bureaucracies as much as they do the human struggles that were the central focus of such fare ten or fifteen years ago. For instance, a man in Chicago "pulls the plug" on the ventilator that keeps his comatose infant alive. He faces criminal charges. One can barely imagine the emotions and suffering associated with such an act. But the father's decision has come after a hospital lawyer refused to help the family seek a court order to remove the child from the ventilator. The lawyer reasons that since the hospital was not receiving any reimbursement for this child's care, a court might suspect that the hospital's removal of life support was prompted by financial motives.1

Consider these other stories: The lover of a movie star who has died of the acquired immunodeficiency syndrome (AIDS) sues the estate and the movie star's physicians because he was never warned that the star was seropositive for the human immunodeficiency virus (HIV). The physicians involved in this case contend that they thought they owed their patient confidentiality. The lover is awarded $5 million. He has not contracted the virus, so observers surmise that the court is sending physicians a message that they must warn individuals who might contract the HIV from one of their patients.

The government agency that determines how physicians should be reimbursed under Medicare, the Physician Payment Review Committee (PPRC), considers capping expenditures. They reason that physicians will then be forced to learn how to ration care, and thus save

money for the government. But the American Medical Association (AMA) asserts that this initiative will cause incalculable harm to the elderly.

Each of these examples involves institutions and professions that most physicians are suspicious of, if not contemptuous: the government, the courts, the legal profession, and health care administrators. Yet each of these examples also touches on issues that most doctors would feel are imbued with ethical considerations. This is the dilemma of medical ethics in the 1990s. Most ethical issues that physicians now face are intertwined with legal and political issues.

Most physicians believe they are equipped to deal with ethical problems that arise in the practice of medicine. They would prefer to handle such problems simply by consulting their own sense of morality and doing the reasonable thing. Physicians have tended to isolate themselves from the economic, political, and legal aspects of difficult moral issues that occur when caring for patients. Traditionally, the patient-doctor contract has excluded all extraneous concerns, and thus the focus in medical ethics has been on interpersonal morality.

Today, however, institutions assert themselves in most "ethical problems" facing physicians, inevitably leading to questions on the relation of law to ethics and morality. Notions of justice contend with those of doctor-patient trust. Political philosophers expect conflicts to arise between individuals struggling with ethical concerns and the laws of the state. As Thomas Nagel notes, the impartiality of liberalism, the guiding political philosophy of Canada, Great Britain, and the United States, provides a context for and orders the ethical decision making of the individual citizen.2 The physician should thus be familiar with the legal and political context of ethical decision making.

What should the physician do when confronted with legal and political issues arising from the practice of medicine? One answer is that she should learn about issues of justice and political fairness. An initial education might involve defining the central terms of such issues. What do the words law, morality, ethics, justice, and liberalism really mean? Webster's has those answers.3Morality, on the one hand, is defined as "a doctrine or system of moral conduct." The adjective moral is defined as "of or relating to principles of right or wrong" and is synonymous with ethical. Just, on the other hand, is an adjective that means "acting or being in conformity with what is morally good or upright." Justice is the "maintenance or administration of what is just" and is also the "quality of conforming to the law."

Clearly there is a great deal of overlap in the meaning of these terms, yet they present many different nuances. All deal with correctness of action, and with the qualities of right and wrong. All feature a sense of principled action and of rational relationships. But concepts of morality and ethics do seem less systematic—if you like, less specific—than do concepts of law. Conforming with law is different from conforming with an ethical principle. Justice is institutionalized in a way that morality is not.

What about liberalism? Webster's relates that liberalism is "a political philosophy based in belief in progress, the essential goodness of man, and the autonomy of the individual and standing for the protection of political and civil liberties." That sounds like it has a lot to do with law, justice, and morality; it also sounds like a decent description of the political philosophy that guides the United States, Canada, and Great Britain, to name a few of what I refer to as liberal states. Given the relationship of medical ethics to moral-political concerns in our liberal state, a firm grasp of liberalism must be central to the enterprise of this book. If we can understand what the liberal state is all about, it will be much easier to understand why issues of law and justice are and should be an increasingly important part of medical ethics.

The Core of Liberalism: Negative Freedom

What, then, are the core values of liberalism? Although there is no easy answer, one can probably safely say that liberals believe individuals should be able to make choices, and that the state should be impartial to these choices. Thus liberalism requires an area of noninterference for the individual, or freedom from interference. Isaiah Berlin has called this the sphere of negative freedom and his discussion can help elucidate the essence of the liberal state.4 Berlin notes that there are two senses of freedom in political discussion. They are as follows:

The first of these political senses of freedom ... which I shall call the negative sense, is involved in the question, "What is the area within which the subject—a person or group of persons—is or should be left to do or be what

he wants to do or be without interference by other persons?" The second, which I shall call the positive sense, is involved with the answer to the question, "What or who is the source of control of interference, that can determine someone to do or be, one thing rather than another?"5

Berlin thus constructs two opposing senses of the word freedom. One centers on the individual's sphere of action. This sphere is to be quite large and the individual is to be left, to a large extent, unbridled. The other type of freedom, the positive type, is totally different. It involves the use of power or coercion by some in society, or the state itself, to help perfect or improve other individuals. The purpose of this coercion is to allow the citizen to live in accordance with his true self.

Negative freedom operates on the assumption that personal choice affirms one's humanity. Individual action possesses a value incommensurable with other types of action:

There ought to exist a certain minimum area of personal freedom which can on no account be violated, for, if it is overstepped, the individual will find himself in an area too narrow for even that minimum development of his natural faculties which alone makes it possible to pursue, and even to conceive, the various ends which mankind holds good or right or sacred.6

These views reflect what I will call "classic liberalism." The classic liberal sense of freedom demands that the individual be left alone with her own projects. The exercise of free choice and pursuit of individual projects are what give life meaning, according to the liberal. Berlin here is echoing John Stuart Mill's conception of society and individual good. As Mill stated, this conception is embodied in "one very simple principle: That principle is that the sole end for which mankind are warranted individually or collectively, in interfering with the liberty, of action of any of their number, is self-protection."7 Of course, this negative freedom, or liberty, is protected by one's political rights.

Mill himself justified the liberal emphasis on negative freedom protected by rights on the bedrock of utilitarianism. His assertion that individual freedom guarantees the maximization of utility rested on his ultimate belief in the greatest good of individual thought. Mill was quite sure that the good of individual thought and action is a far more important consideration than the reasons for limiting individual freedom.

Berlin's rendition of negative freedom certainly concurs with this. Berlin and others do, nonetheless, take a step beyond Mill in their

refusal to treat negative freedom and rights as instrumental values, simply justified by the ends served.8 They argue instead that rights and the liberty or negative freedom that rights preserve are intrinsically good. The individual's liberty cannot be weighed against other goods. Thus liberal philosophers oppose positive freedom, or any form of coercion of the individual in an obdurate fashion. The nature of this opposition further illuminates the content of the liberal state.

According to Berlin, positive freedom issues from a different set of assumptions about what is valuable in society. The adherent of positive freedom sees herself and other human beings as imperfect, yet perfectible. Some human action must therefore be curtailed in order that more perfect arrangements and attitudes can come about in the future. Positive freedom asserts that in order that all may advance, some must be bridled.

Berlin, as a classic liberal, will not accept this. He is a proponent of negative freedom, which he believes is the only true freedom. He argues that societal decisions about the common good are given to misinterpretation and are fraught with the potential for tyranny of the majority, or even dictatorship by a few: "For it is this—the positive concept of liberty: not freedom from, but freedom to, which adherents of the 'negative' notion represent as being, at times, no better than a specious disguise for brutal tyranny."9 Berlin thus fears positive freedom and seeks to contain it with the concept of personal liberty, or negative freedom.

In medicine today, we are often reminded of the negative freedom of the patient. The patient's freedom from interference comes through most strongly in situations in which patients request that their care be limited. The courts, including the Supreme Court in the recent case of Cruzan v. Missouri Department of Human Services, have consistently reiterated that when a patient decides that he does not want heroic or lifesaving measures, and the patient is competent, then physicians cannot insist on further therapy. In the courts' analysis, a physician's insistence on therapy would be a violation of the patient's negative freedom, a freedom to refuse further invasive care. Physicians who argue that competent patients cannot understand the importance of their decision to limit their care are seeking, perhaps, to impose their own conception of what is good and to force the patient to accept further care. The courts usually reject this physician assertion of power and reiterate that the patient's negative freedom, or liberty, should be sacrosanct.

Negative freedom can provide the basis for a theory of justice when one links it to an unfettered right to property, the freedom to dispose of what is one's own. Classic liberal philosophy entails that one is free to do whatever one wants with one's possessions. One is free to paint one's own car. One has a right to paint it. One does not lose the freedom to paint one's own car simply because one has no paint. No paint does not mean no rights. Rights are characterized here as formal guarantees, not as material benefits of some sort.

As might be expected, the classic liberal thinks little of positive freedom, which he characterizes as an end-state theory. In this view, although the liberal values a certain, usually egalitarian, pattern of the distribution of goods in society, he also believes that "any distributional patterns with any egalitarian component is overturnable by the voluntary actions of individual people over time."10 Thus inequality is the natural outcome of rights that guarantee liberties, and the classic liberal accepts this outcome. His belief is that as long as one respects others' rights, then we have no reason to blame him or her for getting wealthier.

Consider Robert Nozick's example of Wilt Chamberlain's ascendancy to fame and fortune. Nozick argues that Chamberlain is not to blame for his own abilities and resultant wealth and that those who would deny him his salary would be constantly trespassing on the personal life of the basketball player. In effect, this means that one can have liberty or equality but not both. Nozick would opt for the former, and he would use the rhetoric of rights to buttress his position. From this argument, it follows that institutions are just only insofar as they promote no interference. In the liberal view, the Internal Revenue Service's interest in Chamberlain's salary, or even the salary caps negotiated by the National Basketball Association with the Player's Association, are unjust.

This position itself represents an evolution of classic liberalism. I will call it "conservatism." A conservative like Nozick or Bertrand de Jouvenal11 believes that redistribution is ethically wrong because it undermines and weakens notions of personal responsibility. Moreover, conservatives cast doubt on the ability of redistributionist policies to produce the good they intend. In essence, they deny that a central authority can possibly bring about a better pattern of distribution than will free citizens in the market.12

The conservative position has been questioned, especially by socialists, but even by other liberals. For instance, some argue that it ignores

the impediments that stand in the way of some members of society simply because of the situation into which they were born.13 Certain members of society will be unable to exercise those liberties granted them because they were born into a deprived setting. While admitting that each citizen may be granted a formal set of liberties outlining a sphere of activity, within which he or she can operate, those opposed to conservatism point out that this set remains merely formal so long as people lack the substantive means to realize the potential of their own autonomy and humanity. The idea that formal liberty often fails to become substantive is the outstanding criticism of both classic liberalism and its progeny, conservatism.

There are several other grounds on which to challenge the conservative. Countering his assumption that inequality just happens, that it should be viewed as a natural occurrence, like the weather or volcanic eruptions, some would maintain that it is impossible to generate large amounts of inequality between individuals unless there are significant inequalities of power in a society. This argument is in turn supported by two other propositions. First, people are not all that different in the basic, or if you like, natural, level of talents they have and can offer. Second, inequality is not a result of freedom of choice, but rather of some taking advantage of others. Thus inequality only occurs when some take advantage of inequity of power to use others as means to ends. In this view, liberty and the impartiality of liberalism simply support the appropriation of the means of production by the powerful and the resulting subversion of others.

One need not go to Marxist extremes, however, to fault the conservative for failing to take into account the value of equality, and for overvaluing pure liberty. The conservative statement that rights exist, that they are good, that they should be defended by just institutions, and that the outcome of such a polity is not a concern of justice cannot be logically sustained. It is, quite simply, wrong. Inequality is a result of the set of rights that are allowed in a society, and the inequality is in effect condoned by that set of rights.

The conservative's failure is his lack of consideration for the ways that economic or contractual claims that may legitimately be made by favored individuals in the type of society he values are not available to all its citizens, given a heritage of unequal wealth, education, and health care. This inequality is unjust, and the state must deal with it, not dismiss it as natural. As Albert Jonsen and Andre Hellegers have stated:

When benefits and burdens can be so distributed, the problem of justice arises. Some who will benefit will not bear costs; some who will bear costs will not benefit. When the situation depends not on chance, but on planned and conscious decisions about the structure of the institution, it is necessary, to ask, "Why should anyone benefit at the apparent cost to another?" These are the questions at the heart of ... justice.14

Consider, for instance, the newborn child of a mother who has no health insurance and is not eligible for government relief programs. This mother, as a result of her exclusion from such programs, might have received substandard prenatal care for herself and her unborn child. Say that because of this lack of care, the child has suffered some intrauterine growth retardation, resulting in the sort of neurological deficits that good prenatal care is designed to avoid. Thus the existence of inequalities in society has created a situation in which one individual will be unable to take advantage of opportunities theoretically available to every member of the society because he was born with certain neurological problems. An advocate of egalitarianism would argue that this child represents a failure of conservatism, for the enshrinement of negative freedom has failed to guarantee him the enjoyment of life, at least from the point of view of classic liberalism.

While conservativism is a natural evolution of classic liberalism, there are other offshoots. The most prominent is what I will call "modern liberalism," so as to distinguish it from classic liberalism and conservatism. Modern liberals recognize the arguments made by those who point out the importance of egalitarian programs. They realize equality must be balanced with liberty in the modern liberal state. It can be said that conservatives see themselves as defenders of liberty, while modern liberals are more concerned with equality.

The modern liberal realizes that granting greater liberty by placing an emphasis on rights allows for more inequality within a society and also realizes that liberty can bring rewards only if the material means to pursue that liberty are available. Modern liberals, while still valuing liberty, envision a society that can establish greater equality. In pursuit of this end, they would not balk at interference with certain individual liberties if a larger proportion of the society would benefit as a result.

Liberty, Equality, and Market Impartiality

Classic liberalism gives rise to a number of different moral-political philosophies, in particular, conservativism and modern liberalism. The core of liberalism, whether classic or modern, concerns liberty and impartiality. The concept of liberty, guarantees the individual a sphere that is his or her own. Liberty provides an area in which one can operate unencumbered by the strictures of the society within which one lives. The state remains impartial to the individual's choices in this sphere: it guarantees liberty.

Given this core, how does modern liberalism address inequality? Liberal notions of equality celebrate the belief that all people are the same in their humanness, that no matter what physical and mental differences exist between us, society accepts each and every member as beings of incomparable worth. Thus, the concepts of both liberty and equality can represent the optimistic belief in perfectibility that characterizes liberalism of all flavors. Yet, as noted above, classic liberals and especially their conservative offspring might see some conflict between the values of liberty and equality. To understand this potential conflict, let us define liberalism more closely.

In the liberal state, an individual's liberty is primary, and the individual enjoys and utilizes his "freedom from" interference to develop his notion of a good life. This liberty is guaranteed by rights. Each citizen, in a model liberal polity, has an equal set of rights that includes an equal right to opportunities. The individual's liberty should not be, or should only minimally be, hampered by the policies of the state. The classic liberal conception assumes that a free market will provide the means for maximizing an individual's free choice. The government tends to stand aside and let the market order societal relations, allowing its citizens to take advantage of their liberty.

The classic liberal state is therefore fundamentally impartial. It allows the citizen to formulate her own notions of goodness, and to pursue them with little interference. As John Rawls notes, the liberal citizen need possess only two moral powers, a sense of justice and a notion of the good.15 There are no special notions of virtue that underpin liberalism. Rather, liberalism encourages pluralism. Each citizen is allowed to develop and pursue her own sense of morality in the ideal

liberal state. The government stands by impartially, making sure that the free market economy remains in place.

Of course, as modern liberals recognize, this state is only an ideal. The impartiality of liberalism does not empty the society of its sense of community. The liberal state is a polity, and its citizens realize they must live together, and so there are constraints on liberty. Instead of a formal impartiality and rampant pluralism of moral ideals, the modern liberal state features what Rawls calls an "overlapping consensus."16 So long as there is some degree of consensus, the liberal state is a place where many views are tolerated. Certain views of moral behavior, such as those that call for racial purification, are excluded. Every Nazi or white supremacist cannot be allowed to take action based on his own sense of morally. While the liberal state does not preclude any view of society, it does exclude putting some into effect. Absolute liberty, is thus diminished for the sake of the community. The modern liberal state is accomplished only through a series of compromises with the traditional liberal ideal, compromises between equality and liberty.

The classic liberal ideal overlooks the fact that natural differences between persons are unavoidable. To bring about equality, it is thus sometimes necessary to have the state interfere in the pursuit of individual projects. Notions of equality thus tend to restrict liberties; in particular they restrict free choice in the market.

The liberal state, then, must carefully weigh the competing values of liberty, and equality. Rights often act as the operators within this negotiation. The nature of the rights to which a citizen is entitled tends to outline the compromise between equality and liberty that has been reached within a society. On the one hand, a society that creates a right to health care that requires a great deal of government subsidy to realize it, will probably sanction a more than modest interference with liberty. On the other hand, a society that sanctions a fundamental right to personal property, and that prohibits takings by the government will probably largely prohibit interference with liberty.

Indeed, different liberal states, each of which is based on the notion of what I have termed modern liberalism, will make different sets of compromises and sanction varying rights. Thus, while an ideal state can be imagined that more or less perfectly reflects classic liberalism, conservativism, or modern liberalism, real liberal states are not so pure. The United States, Great Britain, and Canada are all liberal states, yet they reflect different renditions of liberalism. (I will argue that the

United States is a modem, or should be a modem, liberal state, though certain aspects of it reflect conservative views.)

The classic definition of liberalism tended toward a state in which liberty was emphasized. The impartiality of classic liberalism extended beyond a mere tolerance for different moral points of view, to a true impartiality of the state with regard to individual activities, especially economic activities. In this sense of liberalism, a fight to health care does not seem comprehensible as a fight. Classic liberalism's fights were simply rights claims staking out negative freedom. Historically, John Locke's contractual ethics seem to condone this attitude toward rights, portraying them simply as properties of individuals that protect their liberty, a notion that is quite powerfully emphasized in conservatism.17 Rights were not really thought of as the operating concepts of a compromise between the principles of liberty and equality, but rather as a means for asserting one's liberty. The rise of personal liberty was central to the forms of liberalism-pluralism that developed during the eighteenth and nineteenth centuries and that were so well characterized by John Smart Mill.

The modem liberal state cannot, however, allow rights to guarantee liberty without regard for equality, nor market impartiality to remain entirely unfettered. Moreover, pluralism cannot run rampant, Both the free market and the choice of moral enterprises must be limited for the liberal state to be a political community. For the former, some regulations of economic activity and taxation will be necessary, to promote equality. For the latter, constraints regarding the important differences between beliefs and truths in political dialogue are necessary to main-rain the transcendent objectivity central to liberalism. In other words, to paraphrase Nagel, one who asserts that his moral beliefs are grounded in truth must be able to present that truth such that others accept it as true. This invalidates the claims, for instance, of the racial supremacist.

Perhaps the most fruitful way to conceive of the modern liberal state is to say that it takes as its constitutive ideal that citizens should be treated as equals.18 Of course, treating citizens as equals can be two very different things. In one sense the government treats citizens as equals by treating them with equal respect and concern. Alternatively, the government treats all as equals in a very different sense by ensuring that goods are distributed in an equal manner. The former is a regulative principle, while the latter is a substantive principle.

The end state of distribution is critical to the substantive principle

of equality. It requires that the government define the nature of distributive equality. This is no easy task. Consider, for instance, the distribution of health care. Some of my patients are quite well disposed to medical care. They want tests and have questions and welcome treatment. That is their choice. Others tend to avoid visits, do not want to undergo tests, and do not wish to take medications for minor or even major ailments. How would the state go about distributing health care equally? If it is distributed on the basis of need, we must recognize that choice will play a role in some people's needs. Clearly, equal distributions are not easily accomplished, and they often have very little to do with choice.

The liberal can accept only the regulative principle of equality as constitutive of the liberal state. Individual choice is critical to liberalism, and end-state theories of equality must be based on governmental determinations of equal distributions. The liberal cannot tolerate this lack of impartiality. This does not mean that the liberal must become a utilitarian fanatic who relies on the unfettered market economy for formal equality, maximizing only the average welfare of all individuals. It is of no solace, and provides little meaning for modem liberals, that some members of our society have millions while others go without proper medical care because they have no insurance.

So in what sense can equality, defined as equal concern and respect for each person, act as a constitutive principle for liberalism? First and foremost, as we have seen, liberal equality must be neutral or impartial. Only official, governmental neutrality can allow the choice and liberty central to liberalism. Specifically, liberal equality cannot be based on any particular notion of the good life. One citizen must be free to choose to avoid medical care. Another must have the liberty to seek the medical care she can afford.

Given equal concern and respect for every citizen, and official neutrality regarding the good life, what kind of state does the modern liberal countenance? How does he distribute the goods and services available in society? It is doubtful that he will rely wholly on a market to distribute goods. Nor does it seem likely he will allow the government to make all distributional decisions. With his commitment to individual choice and also to equality, he will want resources distributed roughly equally, modified by the caveat that individuals must be able to exercise their preferences and transfer goods for those they value more.

Rough equality and maintenance of individual preference (negative freedom) are difficult values to satisfy mutually. Suppose, for the sake of argument, that all people have roughly equal talents and that each starts life with the same resources as everyone else. Given these rather unrealistic conditions, the modem liberal acknowledges that the market is the best way to conserve free choice and also maintain rough equality.

Consider again two patients. One values medical care and wants to purchase as much as possible. She invests in special diets, takes part in fitness programs, and requests medications that may be of only partial or marginal benefit. She wants above all to stay alive and directs her physician that should she become incompetent, she wants every possible measure to be taken to keep her alive. She develops leukemia at an advanced age. She has saved her money, giving up the enjoyment of sports cars and exotic travel, and she wants to spend her savings on a bone marrow transplant. In the ideal world in which we all start out with the same resources and same talents, her free choice or negative freedom is respected, and she purchases what she wishes. Yet our second patient has decided that eating well, smoking good cigarettes, and in general living a fast life is the best use of resources distributed to him. He does not seek therapy for his high blood pressure or his high cholesterol, and he develops heart disease, He has not saved for a heart transplant, and so he cannot purchase it. He dies of his heart disease, but he started out life with the same resources and same talents as the first patient. He exercised his negative freedom in an appropriate fashion, and he bought what he wished.

These examples reveal the ideal manner in which the market acts as a means for guaranteeing a roughly equal distribution of goods and services to individuals. In our example, the woman chose to trade aspects of a "good life" for more medical care. The man's choices were just the opposite. They had freedom to choose, and their use of resources was roughly equivalent. The difference was in their values, not in the distribution of goods. We do not have to feel sorry for the man who cannot have a heart transplant, nor do we feel uncomfortable about the elderly woman's bone marrow transplant. The choice of the market revealed equal concern and respect for both individuals, and the choices they made.

But we live in a real world, and political theories for ideal worlds are only of limited help. In any real liberal state, there are inequalities

of talent and resources at birth. For example, on any given morning, I have several patients scheduled. One I see is a twenty-year-old man. When I asked him about his occupation several years ago, he told me he "hustled." It turns out that hustling includes a variety of illegal activities, the most profitable of which are male prostitution and the cocaine trade. While hustling, he contracted the human immunodeficiency virus (HIV). He is one of seven children from a home without a father. His mother was and is very. insistent that I be firm with the patient, as she had already lost two sons in drug-related deaths. He has not always taken good care of himself, but now he appears to recognize that some medical follow-up is important. He is applying for general relief but is hampered by the fact that his reading skills are minimal.

Another of my patients is twenty-two. He is a junior at a local college and has sought medical treatment because there is a familial pattern of high cholesterol. He has had several sessions with the dietician in our office and now returns periodically for follow-up cholesterol tests. He studies mathematics, and in fact he derived a negative binomial statistical test for me so that I could win a bet with an epidemiologist friend. He, like my other patient, is both charming and decidedly entrepreneurial.

Without engaging in too great a "Prince and Pauper" fantasy, I do not find great differences in these two gentlemen. Although I would probably not ask the former to babysit for my kids at this point, I can imagine that he might perform in much the same manner as the other fellow if he had the same opportunities. While some might dismiss this as Pollyannaish, as a modern liberal, or even a classic liberal, I have to have some faith in the perfectibility of man and the value of each individual. Given that disease strikes people from all walks of life, I, like other physicians, have become well aware of the inequality, in starting points for many people. And these inequalities of birth tend to disrupt the sense of equal concern and respect that the market can provide.

Thus the modern liberal state must address the inequalities in skills and birthright of individual citizens. A modern liberal citizen would like to develop an economic system that allows some inequalities, in particular the inequalities that reflect market choices, but not allow others, such as those that result from biological or social differences. In our liberal state, the market allows both types of inequality; indeed it is difficult to imagine any system in which the former inequities exist

without the latter. Since the liberal, even the modern liberal committed to equality, cannot give up the principle of individual choice, he will probably stick with the market, or at least with simulations of the market, in his construction of a social order.

But if the market is to be retained, it must be modified through reforms that help develop a more equal distribution of goods while leaving in place the value of economic choice. In medicine, this could be done through taxation and development of a series of welfare programs so that people like my HIV seropositive patient have a fighting chance to live the best lives possible. However, if one spends a lot of time with the urban poor, and others generally disenfranchised by the market, even the most liberal person may begin to argue that the market itself should be done away with in large segments of society and replaced by a socialist system. Negative freedom in this scenario would be protected by simulations of the market in the pricing structure developed by the government. In any event, recognition of the inequalities that occur in a market regime, and realization that the market perhaps overvalues negative freedom, forces the modern liberal to reflect on the values of a modified market, and even on the value of socialist alternatives to the market.

Of course, the liberal need not fear that the particular mix of market and nonmarket aspects of the economy is to be decided autocratically. He will rely on representative democracy to decide the best way of dealing with the inequality, that arises from the market, or the lack of equal respect and concern that develops when the socialist approach curbs free choice in the market. Every individual, and groups of like-minded individuals, will be able to lobby for changes in the mix of market and socialism that they believe are appropriate. In this manner, the liberal state reinforces its commitment to equality, by giving each individual an equal vote.

I am not so naive as to think that my vote counts as much as the small campaign contribution I might make to my favorite elected official. Nor do I think that my contribution matters as much as the much larger contribution that the AMA's political action committee makes to a candidate. The liberal legislature can, however, create a more equitable political sphere by passing legislation that prohibits campaign contributions above a certain level. The legislature would thus address inequality, by trading free choice (of the members of the PAC) for greater equality. (between voices of citizens).

There is no doubt that democracy can still result in the majority's

abuse of minorities. Not infrequently, the majority, decides that it cares little about the equality, of a certain insular minority. For instance, say the legislature in Massachusetts decides that the best way to deal with the budget crunch is to cut off disability and general relief for drug users. This would mean that my patient will not be able to qualify for Medicaid. His uninsured status means he will not be able to get drugs that will slow the affect of HIV in his system. His death will be hastened, and he will be treated with less respect than an insured patient. One unfortunate justification for this unequal treatment is that the average drug user is not a campaign contributor; indeed it is unlikely that he votes.

To avoid the inequities of majoritarianism, the modern liberal must advocate a set of civil liberties that will help maintain equal concern and respect—the principles at the heart of liberalism. He must also advocate a set of welfare rights to guarantee that poor people will have a right to aid, medical care, and legal representation. Insofar as our state fails to provide these rights, it fails to guarantee the equality central to modern liberalism. It is thus not illiberal for us to advocate wider civil liberties to guarantee the equality, that gave rise to the market and representative democracy as the major institutions of our society. As Ronald Dworkin notes:

The familiar idea, for example, that rights of redistribution are justified by an ideal of equality that overrides the efficiency ideals of the market in certain cases, has no place in liberal theory. For the liberal, rights are justified, not by some principle in competition with an independent justification of the political and economic institutions they qualify, but in order to make more perfect the only justification on which these other institutions may themselves rely.19

That justification is an equal concern and respect for individuals.

Justice, Law, and Morality

Civil liberties have to define modern liberalism's notions of justice. Justice is the first virtue of social institutions. Justice governs institutions; it is conceptually distinct from the virtues that govern personal action. "The principle of justice for institutions must not be confused with the principles which apply to individuals and their ac-

tions in particular situations."20 Thus personal morality is separated, as in classic liberalism, from the attributes of a just state.

Liberal justice is based on the fairness of a contract between equals; it is a contractualist theory. The notion of wrongness in contractualism has been defined by Timothy Scanlon as follows: "An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behavior which no one could reasonably reject as a basis for informed, unforced, general agreement."21 The justice of institutions derives from the fact that equal individuals, impartial about their attributes, accept a set of rules as fair. This is justice as fairness.

The modern liberal, such as Rawls, can integrate the ideals of equality, fairness, and impartiality into an overarching theory of justice using the construct of the "original position." In the original position, the fundamentally equal citizens of a society gather together and select the principles that will guide their later decisions concerning the shape of the institutions they will populate. These principles will give life to the laws and institutions that will govern the way people must treat one another. The citizenry remains ignorant of their own attributes in the future society. In this manner, the impartiality, and equality, of respect of liberalism are fundamentally rooted. Rawls calls the lack of knowledge of the future society, and one's position within it, the "veil of ignorance." The veil hides present circumstances from the original position. Thus the citizenry must select principles that will guarantee fairness, and, as their final position in that society cannot be known ahead of time, they all will want a fair share in the society they build.

The primary, principle governing the society that is to be created by the modern liberal citizens of the original position is this: "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all."22 This principle has two parts. The first is equal liberty and fair process. The second part concerns substantive inequality. Since one does not know which position one will be in as a member of the society-to-be, it makes sense that everyone would want the same liberties and a just legal system. Moreover, no one wants to be discriminated against from the outset, or to be born with deficient resources. To militate against such eventualities, Rawls puts a limit on inequality. "Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality, of oppor-

tunity."23 The right to equal liberties and the limit on inequality, are, then, the two subprinciples that liberal citizens in the original position would select.24

But, the modern liberal must move beyond these formal considerations and discuss the general motivations of citizens in a given society. The first major concern will likely be the attainment of primary. goods. The founders of the original position would develop a list of such goods. These primary goods would then be distributed through a modified marketplace. The market would be modified to prevent any action that increases inequalities without benefit to all. The justice of the institutions that develop to distribute primary goods is guaranteed by the principles embedded in such institutions from the start.

Institutions are just insofar as they reflect the impartiality of the original position. This impartiality is translated into principles that promote liberty and constrain inequality. Clearly, constraints on inequality will diminish liberty and the extent to which limits on inequality bind liberty should be a subject of active political discussion. The lines of battle will shift as this is debated within the liberal state. The modified market thus is valuable to the liberal state insofar as it helps bring about the compromise between negative freedom and equality. In turn, market mechanisms should be constrained when they produce inequality in society without a compensating increase in liberty.

Again we can return to the example of medical care to illustrate the place of the market within the liberal state. In our liberal state, we rely on private insurance to finance medical care. Private insurance is supplemented by nonmarket governmental interventions such as Medicare and Medicaid. Nonetheless, some individuals are still without insurance for medical care. As a result of decreased access to medical care, they may suffer higher rates of mortality. At present, there is a debate within our society about the best way to address the question of the uninsured. Some would argue that we should increase taxes and use the revenues to purchase insurance for them. Others suggest that health care providers should care for uninsured patients without expectation of compensation. The decrease of the liberty of a few—either through higher taxes or through economic penalties for health care providers—is justified by a decrease in the overall inequality in our society. The operation of representative democracy in the liberal state must provide answers about the best approach to such problems. These are the concerns of liberal justice.

While the principles of justice shape institutions, they do not define

personal morality. Liberal institutions allow individuals to develop moral stances freely, so long as they do not interfere with justice. To define in more detail the nature of liberal justice, one must address the law. As Dworkin has noted, the law is justice translated into the real world.₂₅

There is inevitably a moral dimension to law.26 While this statement on first sight seems a truism, it is not a given in jurisprudence. Indeed one of the most important theories of the relation of morality to law denies any necessary such relationship. Positivism holds that the propositions of law are largely dependent on notions of authority and that valid laws need not express nor be derivable from morality. The law is backed by the power of the state. Liberals, however, insist that law bears a complicated relationship to morality, and that the nature of that relationship is critical to an understanding of the place of ethics and morality in the liberal state.

A modern liberal might argue that there are two types of morality: majoritarian and public morality. The former is the conception of shared morality held by the majority of a group or society. The latter concerns the "general moral principles used in the criticism of actual social institutions including [majoritarian] morality."27 The modern liberal argues that although people may disagree about the content of morality, there must be some agreement on the fundamental principles that underlie the state. Thus the modem liberal conceives of both a morality of the majority, and a public moral infrastructure made up of critical principles that may restrict that morality.

Public morality constitutes the principles that in turn constitute justice. As we have seen, in a liberal state these principles are quite narrow and maintain an impartiality regarding the individual's outlook. Individual moral views must, however, conform to the public morality insofar as a consensus of views is necessary for society to exist (the overlapping consensus discussed by Rawls).

The modern liberal advances these arguments concerning morality and the law without the positivist's detachment of law and morality. However, be rejects a model of law and morality, such as proposed by Patrick Devlin,28 that implies that the judiciary must be willing to take account of all the prejudices, rationalizations, and inconsistencies that make up the majority's belief about a legal or moral issue. This, the modern liberal asserts, is not what the law is about. Legal questions should not be a report of prejudices or feelings. They should be settled through reasonable argument. The law must have moral integrity.29

Rather than consult the majority, the modern liberal, whether the legislator or jurist, is charged to think and to analyze. She "must sift these arguments and positions, trying to determine which are prejudices or rationalizations, which presupposes general principles or theories vast parts of the population could not be supposed to accept, and so on."30 This reasoning process is based on the public morally of the state, not on the collection of individual moral views that constitutes a majority. Discussions of the correctness and rightness of a law must draw upon analysis that leads to the study of principles, not the study of prejudice and irrationality. The principles that constitute the public morality, of a liberal state are those pertaining to impartiality, individual choice, equality, of respect and concern, and civil rights that protect minorities and work against inequality.

There are, of course, limits to liberal impartiality, and tolerance. While most liberals would agree that "the identity and continuity of a society reside not in the common possession of a single morality, but in the mutual toleration of different moralities,"31 they would also recognize the potential for anarchy in such a society. The public morality of the liberal state both celebrates and constrains the individual's autonomy, and thus the choice of individual moral viewpoints. The law is the product of rational consideration of the public morality. The plurality of moral views that the public morality, allows, indeed encourages, can be called the social morality.

Thus the relation of morality to law is quite complicated. The principles of justice constitute what can be called a public morality. They define the relationships between institutions and citizens within the modern liberal state in an effort to bring about the "right" or the "good." The law is the result of rational consideration of the principles of justice, the instantiation of these principles. The law does not, however, exhaust the totality of potential goods, or of correct relations between persons. People enjoy and pursue moral activity, above and beyond the requirements of the law. Liberalism encourages such activity, within the purview of liberty. While the law has moral content, there is much moral activity beyond the concerns of law and justice. The aggregate of individual moralities is the social morality. The moral outlook that constitutes a majority of individual viewpoints on any one issue is the majoritarian morality. A just liberal society requires that there be a relationship between law and public morality, but no relationship between law and majoritarian morality.

This is not, however, to say that every, law of a particular state

necessarily reflects liberal values. Just as there is variation between real nations that we might call modern liberal states (the United States, Canada, and Great Britain), so too is there variation in the "liberalness" of various laws in those states. A liberal state and its individual laws can be scrutinized from the point of view of the principles of liberalism. This chapter then provides a summary of the notions of liberalism we will use to study medical ethics in a liberal state, especially, but not solely, our modern liberal state in the United States.

At the beginning of this chapter, I noted that many of the moral problems in medicine raise political and legal questions. Physicians and patients find themselves bumping into a number of governmental institutions and often face concerns of justice. As a result, I argued, it was important for one concerned with medical ethics to understand the liberal state.

The modern liberal wants to maintain a broad range of negative freedoms for individuals. He wants the state to remain as impartial as possible toward the choices that go into the pursuit of a good life. But, the modern liberal is also committed to treating each member of society with equal concern and respect. He realizes that talents and opportunities are spread unevenly within society and that as a result great substantive inequalities can occur in the liberal state. While the liberal is willing to use a market economy to distribute goods, and indeed believes that the market itself can bring about the best compromise between equality and negative freedom, he is willing to modify market approaches substantially if they lead to significant inequalities. The liberal relies on representative democracy, supplemented by a set of entitlements and civil liberties, to develop the best possible mix of equality and individual freedom.

The modern liberal understands that the principles underlying the liberal state constitute a public morality. The essential values of this public morality are liberty and equality of each individual. The liberal state allows the growth of personal morality; it accepts and indeed encourages individuals to develop their own choices regarding a moral life. Nonetheless, this aggregate of personal moralities, called the social morality, must not conflict with the public morality that issues from the principles underlying the liberal state. The law and the justice of institutions thus constrain social morality. Individual rights not only protect the sphere of negative freedom for the individual but are a way to counter the threat of inequality that shadows such liberty.

This outline of liberalism can bring the paradigms discussed at the

outset of this chapter into focus. The individual who killed his coma-rose son was acting on his own morality and ideals, which had brought him to the decision that his son's life was not worth living. He was prosecuted by the state because there is a concern that his personal morality conflicted with the public morality of the state. The hospital's decision not to terminate care was based on concerns that its motives might be misinterpreted, that it would be perceived as being unduly influenced by the market. In short, hospital officials were afraid the public would view the hospital as willing to countenance murder if the patient were unable to pay his bill.

The court decision on the lover of the man who died of AIDS reflects the court's willingness to protect individual or negative freedom. He had been placed at risk for infection, a risk to which he had not consented. The individual autonomy central to liberalism's negative freedom implies full knowledge of risks, or at least is adverse to misleading information about risks. Thus the court's award of damages reflects the liberal state's interest in autonomy.

Finally, one can understand the government's decision on prospective budgeting of physicians' payments under Medicare. The government funds Medicare as a means of creating more equality within our society. The market cannot provide decent insurance for elderly people. Therefore, the government intervenes and constrains the market in order to bring about more comprehensive insurance and better care for members of society who would otherwise be treated unequally. The representative democracy must decide who will bear the burden—the loss of liberty—for this effort to provide greater equality. In the past, general tax revenues have been used to fund Medicare. Now it appears the government will have the burden fall more selectively on health care providers, who will be expected to provide necessary care, some of which will not be compensated.

The outcome of each of these cases makes sense when one consults the public morality of the liberal state. We have noted, however, that the public morality of the liberal state is different from the individual moralities selected by its citizens. Physicians have long assumed that important moral issues in medicine are the concern of the patient and the physician. But I will argue throughout this book, that American medical care takes place in the liberal state. The political economy of health care cannot be distanced from liberalism. Moreover, the indi-

vidual relationships between doctors and patients must be constrained by the public morality of liberalism. With this understanding of liberalism, let us turn to a discussion of medical ethics.