This Article and the successor article I will shortly publish grow out of one reaction I have had to years of reading bioethical and legal literature. Let me begin by putting the point in its simplest, even crudest, form: That literature too often discusses the problems of health care in so disembodied and denatured a way that the patients and physicians, the family and friends, the dread and the disease are quite abstracted from the scene. The result is a literature that critically limits itself and that crucially oversimplifies the issues it confronts. There are, of course, reasons bioethical and even legal literature might tend to abstract people from its problems. Bioethics is, in part, a subset of ethics, and it is, in part, peopled by philosophers. It is a field and those are scholars whose special calling is to undertake abstract analyses of human dilemmas. And as Brody observes, the prominent analytic tradition in philosophy "has been powerful in condemning anecdotal or ad hoc reasoning as hopelessly subjective or intuitionistic and in insisting that reason in ethics requires that conclusions be logically deduced from more general principles." Compounding this attention to the abstract is the philosopher's absorption with the normative, his desire, as James L. Nelson puts it, "not to ask what people want, as much as it is to ask what they should want." But even the abstract analysis of human problems cannot safely become too far detached from the reality of those problems, from the insistent complexity of human life. Further, bioethics, to say nothing of law, is also very much the study of applied ethics, and its practitioners include people-like doctors, lawyers, and ethicists employed by hospitals-who must be as concerned with empirics as ethics. Yet another force helps explain why the literature of bioethics and law has tended toward the abstract. Historically, bioethics has been vitally driven by a desire to tame the imperialism and arrogance of medicine. As is common in political battles, simple and forceful statements have worked better than complex and guarded ones. More specifically, a powerfully stated and too-often simple autonomy paradigm has become the central feature of bioethical thought and law. Yet, despite the undoubted and true importance of that paradigm, its reiteration has become stale, flat, and unprofitable, and its simplicities have become too costly. Thus, in this Article, I try first to describe the "hyper-rationalism" of bioethics and of the law regulating the relationship between doctor and patient and then offer one way to treat that ailment. Hyper-rationalism is the tendency to believe, first, that people behave in ways that can so far be predicted a priori that empirical evidence about their behavior is superfluous and, second, that people think and act rationalistically, seeking always to maximize and exercise autonomy. Hyper-rationalism has contributed regrettably to a simplifying of bioethical and legal thought, to treating people as though they want essentially the same kinds of things and go about getting them in essentially the same kinds of ways, to a view that human behavior is characterized by a predominantly logical approach to life's perplexities. At this stage in the history of bioethics and law, we should be ready, and we surely need, to see the core problems of bioethics in all the factual and moral complexity of reality. I will argue that empirical research provides one useful way to bring more of that complexity back in. To illustrate concretely the usefulness of such research I will describe a literature which provocatively indicates that a substantial number of patients do not wish to make their own medical decisions. I will suggest that this literature raises questions that should cause us to think more deeply, rigorously, and richly about the problems of bioethics in general and about its autonomy paradigm in particular. Indeed, so fruitful are this literature and those questions that they cannot be cabined within a single article. Thus I will explore them at length in a subsequent piece.
Schneider, Carl E. "Bioethics with a Human Face." Ind. L. J. 69, no. 4 (1994): 1075-104. (Symposium: Emerging Paradigms in Bioethics)