Shifting Paradigms in Bioethics and Health Law: The Rise of a New Pragmatism

Abstract

Modern bioethics and health law have been dominated by a certain method or paradigm. In bioethics, this has come to be known as "principlism," deductive reasoning from a limited set of middle-level principles, albeit with some reciprocal attention to the implications of the case at hand for those principles. In health law, the approach has often been similar, the creation of middle-level rules (on informed consent, surrogate decision-making, and so on) and then their downward application with insufficient attention to the clinical context, the specific characteristics of the disputants (such as insurance status), and whether the rules will actually work in medical settings.

These related paradigms are now under attack from a number of quarters. In bioethics, alternative methods are being advanced, a new empiricism challenges the content of previously accepted principles, and feminist and race-attentive work has rendered suspect bioethical appeal to the generic "patient." Less recognized are the comparable challenges in health law. The bioethics shift has been variously diagnosed as "inductivism" or "coherentism." However, seen in company with the health law shift, both appear linked to the rise of a new pragmatism. In shifting their approaches increasingly from something principle- or rule-driven to something more inductivist and empirical, their approach to the practical has become pragmatist.

This article documents and analyzes the shift under way in both fields. The turn toward empiricism, rejection of theoretical elegance as the measure of good bioethics and health law, and insistence instead on evaluating what meets the needs of individuals in clinical settings is a diagnostically pragmatist move. To embrace this diagnosis allows debate of core, applicable issues in pragmatism, including whether it is anti-theory and incompatible with a strong concept of rights. The article spells out the implications of the pragmatist diagnosis for the method and substance of bioethics and health law.

This breakthrough article, one of the first to argue for pragmatism as an approach to bioethics and health law, helped set the stage for much subsequent work elaborating a pragmatist approach to these fields.

Keywords: Pragmatism, neopragmatism, empiricism, empirical studies, principlism, inductivism, coherentism, casuistry, method, health law, bioethics