Par Patrick Garon-Sayegh, candidat au doctorat à l’Université de Toronto
Most legal and moral philosophers are familiar with the distinction between facts and values, also often called the “is–ought distinction” (following Hume). This stands for the idea that one cannot simply jump from a descriptive / empirical / fact claim (i.e. a claim about what is the case) to a normative / moral / value claim (i.e. a claim about what ought to be the case). In legal thought, the is–ought distinction most often plays itself out in debates over the separation of law and morality. The thesis that law and morality are separate has a long history, was famously defended by HLA Hart in “Positivism and the Separation of Law and Morals”, and still has many strong proponents. Similarly, some philosophers ask whether or not there is a moral obligation to obey the law—a question with many moral and political ramifications.
I cannot, of course, hope to adequately cover such lofty questions here—much less propose even a moderately satisfactory answer to them. My goal in this (much too) short text is modest: to show that the is–ought distinction is important in the context of health law and policy. I argue that the importance of grasping the distinction lies in how we make arguments about health law and policy. Keeping the distinction in mind when we think about health law and policy problems helps us to be more careful thinkers and more persuasive arguers.
I believe that the is–ought distinction is most easily grasped through examples. Luckily, a recent segment of The Current broadcast on CBC provides me with a prime example of the is–ought distinction. The example shows how easily the distinction can be muddled in health law and policy debates, especially when medical or scientific experts are invited for comment.
However, before examining this example, I must acknowledge the following: it is possible to criticize the is–ought distinction in many ways. Several philosophers make refined arguments about how the normative is embedded in the descriptive, and vice versa. In the case of law and morals, for example, there are many arguments in favour of questioning a neat separation between the two. And in the case of health law and policy, we can argue that “in the real world of scientific evidence production, [the distinction between facts and values] cannot be upheld.” But if these (and other) more sophisticated arguments are to be fully intelligible to us, we must first understand the basic distinction between the descriptive and the normative, between is and ought, and at least some of the reasons why the distinction has merit. I therefore concentrate on the distinction in this text, and leave the finer arguments for another day.
CBC’s The Current is a weekday morning show covering news and current events. Each show usually presents three segments of about twenty-five minutes, with each segment covering a different issue. The show’s host typically interviews two or three people: politicians, experts, or people directly affected by the issue discussed.
On December 5th, 2018, The Current aired a segment on the “morality of boxing” (listen to it here, or read the transcript here). This segment was motivated by a high-profile professional boxing match that took place a few days earlier. The fight ended dramatically with one of the fighters, Adonis Stevenson, being hospitalized in deep sedation.
Two medical experts were invited for comment. The first, Richard A. Wennberg, is a neurologist at Toronto’s University Health Network. The second, Jean Doré, is a sport medicine specialist who teaches at the Université Laval. Doré was at the Stevenson vs. Gvozdyk fight to give medical support, but was not directly involved in caring for Stevenson. Note as well that Doré has been providing medical supervision to amateur boxing matches for fifteen years.
Before criticizing The Current, I want to acknowledge what the show did right. First, producing a segment on the morality of boxing was legitimate, especially given the circumstances. The Current was also justified in inviting medical experts to weigh in on boxing. If one is to decide on a sport’s legality or morality, it is quite reasonable—if not essential—to know what kinds of injuries its practitioners typically suffer from. Choosing a neurologist (Wennberg) and a sport medicine physician (Doré) was also appropriate. Moreover, Doré had added value as an expert because of his specific experience with boxing and his attendance at the fateful fight.
The Current, then, had many good ingredients to produce an enlightening discussion on boxing and its health implications.
Unfortunately, during the discussion with the invited experts, the show thoughtlessly jumped back and forth between is and ought—between medical facts and moral values. As a result, the segment ended up being far more tendentious then necessary, and not as enlightening as it could have been.
Here are, briefly stated, the key places where the Current erred:
The host tried to corner Doré early on by asking him whether he had “misgivings about being involved in such a violent sport.” Now, I understand journalists’ need to ask “hard questions.” But this question put the onus on Doré to justify himself morally. In other words, whether he answered “no” or “yes,” he risked being morally suspect. If “no,” we could question how he, a physician, could be blind to the violence that regularly unfolds before him. If “yes,” we could question why he continued to be involved despite his misgivings. Later in the segment, the host struck back with an almost identical question. She put Doré’s moral judgment on the spot by asking him whether he worried that he was giving “medical sanction to a dangerous activity.” Once again, a “yes” answer would make him personally look bad, and a “no” answer would make him seem disingenuous.
The host also tried to corner Wennberg, twice asking him essentially the same question. Once, she asked him whether it is “ethical for the sport to continue.” The second time, she asked him: “should this sport change drastically or should the sport be banned?” Both times, and especially the second time, listeners could hear Wennberg’s discomfort at being cornered with a moral question.
Both experts managed to be nuanced, despite The Current’s contrary efforts. The Current tried to knock a “yes, boxing should be banned” out of Wennberg. But he skillfully limited the scope of his interventions to neurology, no doubt because he understands that neurology doesn’t answer value questions. He was right to feel uncomfortable about having his knowledge co-opted to serve The Current’s preferred policy option. Doré, for his part, managed to move the conversation away from his own moral integrity towards more constructive considerations.
It should be noted that Wennberg’s personal integrity was never on the spot, whereas Doré’s was. One gets the impression that Doré was invited to represent the “boxing is good” side of the argument, and that The Current hoped that he would be knocked down by Wennberg’s neurological expertise. Indeed, the questions posed to Doré seemed designed to paint him as biased because participates in boxing. Wennberg, on the other hand, could be presented as an ideal expert: highly knowledgeable and with no skin in the game.
In the end, The Current forced simplistic moral questions on experts who were not comfortable with simplistic moral reasoning. This is a bad journalistic habit: to substitute bona fide ethical deliberation with a simple clash of opposing views. Once again, I understand the need to ask “hard questions.” But journalists should ask the hard questions to the right people. There are activists, politicians, stakeholders, lawyers and ethicists who would be much more comfortable with answering the normative question of whether or not boxing should be banned. Instead of going to such people, The Current bypassed normative reasoning and tried to squeeze a value judgment out of medical facts. Perhaps this has something to do with medicine’s prestige and authority as a form of expertise. Our culture tends to tolerate and defer to ex cathedra pronouncements from physicians more than it does from others. Physicians’ prestige and authority may be related to that of more ancient authority figures, both in our culture and in others, as explored by research on the anthropological similarity between the physician, on one hand, and the priest or shaman, on the other.
Did The Current need to invite lawyers, ethicists and stakeholders to their segment? Of course not. Doré and Wennberg were perfectly good guests, and had intelligent things to say. The mistake was trying to squeeze them into answering a simplistic moral question that fell outside their realm of expertise, and that they weren’t prepared to answer.
To be clear: physicians often possess knowledge that is relevant to the analysis of moral issues. But their knowledge usually only speaks to a small slice of the issues that are relevant to a moral problem.
Journalists are not the only ones to lose sight of this. Physicians sometimes forget it as well. For example, Alain Ptito, a brain trauma expert at McGill University’s Montreal Neurological Institute, recently said in an article published after Stevenson’s hospitalization: “Boxing should be abolished as a sport. I wouldn’t hesitate to say that.”
Now, it is completely acceptable for Ptito to personally hold this view. But such a statement crudely jumps from fact to value without any acknowledgement of all the other, non-medical and totally legitimate considerations that good policy making should take into account. To be fair to Ptito, the article does not put his affirmation in context. Perhaps he is also a lawyer, an ethicist, and social worker who has engaged extensively with different stakeholders in and around the boxing community. But if he does possess such diversified knowledge, there is no mention of it in the article—and I doubt he would make such an absolute statement if he did. Moreover, the article begins by framing the entire question as whether or not physicians can “medically justify the sport.” This is a framing error, for the simple reason that no sport is medically justified.
The real question is whether a sport is justified, period. And justification is a matter of (i) taking into consideration all of the sport’s risks and benefits, medical and otherwise, and then (ii) assigning value to each of these risks and benefits in order to (iii) reach a decision. Any justification that skips these steps ultimately ends up being unpersuasive. That is why the is–ought distinction is important: by forgetting about it, people who have interesting and important expertise to contribute to a moral debate end up making claims that are not justified solely in light of their expertise. We can call this phenomenon “expert overreach.” Too much expert overreach risks, over time, eroding trust in medical and scientific experts. This erosion of trust represents a major threat to our democratic, scientific and medical institutions.
Health law and policy researchers, then, would do well to keep the is–ought distinction in mind. Doing so can aid them in achieving two interrelated objectives. The first is to avoid contributing to the frightening erosion of trust in key healthcare and policy institutions. The second is developing more nuanced, more subtly justified arguments in favour of the policies they believe to be correct. In matters of health law and policy, the velvet glove is more persuasive than the iron fist.
This content has been updated on 14 August 2019 at 15 h 47 min.