Australia Day and #changethedate - a tale of two truths
The recent debate about whether or not Australia Day should be celebrated on 26th January has been turned into a contest between two rival accounts of history.
On one hand, the ‘white arm band’ promotes Captain Arthur Phillip’s arrival in Port Jackson as the beginning of a generally positive story in which the European Enlightenment is transplanted to a new continent and gives rise to a peaceful, prosperous, modern nation that should be celebrated as the envy of the world.
On the other hand, the ‘black arm band’ describes the British arrival as an invasion that forcefully and unjustly dispossesses the original owners of their land and resources, ravages the world’s oldest continuous culture, and pushes to the margins those who had been proud custodians of the continent for sixty millennia.
This contest has become rich pickings for mainstream and social media where, in the name of balance, each side has been pitched against the other in a fight that assumes a binary choice between two apparently incommensurate truths.
However, what if this is not a fair representation of the what is really at stake here? What if there is truth on both sides of the argument?
The truth – that is, the whole truth – is that the First Fleet brought many things. Some were good and some were not. Much that is genuinely admirable about Australia can be traced back to those British antecedents. The ‘rule of law’, the methods of science, the principle of respect for the intrinsic dignity of persons… are just a few examples of a heritage that has been both noble in its inspiration and transformative in its application in Australia.
Of course, there are dark stains in the nation’s history – most notably in relation to the treatment of Indigenous Australians. Not only were the reasonable hopes and aspirations of Indigenous people betrayed – so were the ideals of the British who had been specifically instructed to respect the interests of the Aboriginal peoples of New Holland (as the British called their foothold on the continent).
The truth – that is, the whole truth – is that both accounts are true. And so is our current incapacity to realise this.
The truth – that is, the whole truth – is that the arrival of the Europeans was a disaster for those already living here for generations beyond human memory. This was the same kind of disaster that befell the Britons with the arrival of the Romans, the same kind of disaster visited on the Anglo-Saxons when invaded by the Vikings and their Norman kin. Land was taken without regard for prior claims. Language was suppressed, if not destroyed. Local religions trashed. All taken – by conquest.
No reasonable person can believe the arrival of Europeans was not a disaster for Indigenous people. They fought. They lost. But they were not defeated. They survive. Some flourish. Yet with only two hundred or so years having passed since European arrival, the wounds remain.
The truth – that is, the whole truth – is that both accounts are true. And so is our current incapacity to realise this. Instead we are driven by politicians and commentators and, perhaps, the temper of the times, to see the world as one of polar opposites. It is a world of winners and losers, a world where all virtue is supposed to lie on just one side of a question, a world in which we are cut by the brittle, crystalline edges of ideological certainty.
So, what are we to make of January 26th? The answer depends on what we think is to be done on this day.
One of the great skills cultivated by ethical people is the capacity for curiosity, moral imagination and reasonable doubt. Taken together, these attributes allow us to see the larger picture – the proverbial forest that is obscured by the trees. This is not an invitation to engage in some kind of relativism – in which ‘truth’ is reduced to mere opinion. Instead, it is to recognise that the truth – the whole truth – frequently has many sides and that each of them must be seen if the truth is to be known.
But first you have to look. Then you have to learn to see what might otherwise be obscured by old habits, prejudice, passion, anger… whatever your original position might have been.
So, what are we to make of January 26th? The answer depends on what we think is to be done on this day. Is it a time of reflection and self-examination? If so, then January 26th is a potent anniversary. If, on the other hand, it is meant to be a celebration of and for all Australians, then why choose a date which represents loss and suffering for so many of our fellow citizens?
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Why victims remain silent and then find their voice
TIME Magazine’s announcement comes amid a storm of reckoning with sexual harassment and abuse charges in power centres worldwide. The courageous victims who, over the past few months, surfaced and made public their experiences of sexual harassment have sparked a social movement – typified in the hashtag #MeToo.
One of the features of the numerous sexual harassment claims that have been made public is the number of victims that have come forward after the first allegations have surfaced. Women, many of whom have suffered in silence for a considerable period of time, all of a sudden have found their voice.
As an outsider not involved in these incidents, this pattern of behaviour might be difficult to comprehend. Surely victims would speak up and take their concerns to the appropriate authorities? Unfortunately, we are very poor at judging how we would behave when we are placed in difficult, stressful situations, as previous research has found.
How we imagine we would respond in hypothetical situations as an outsider differs significantly to how we would respond in reality – we are very poor at appreciating how the situation can influence our conduct.
In 2001, Julie Woodzicka and Marianne LaFrance asked 197 women how they would respond in a job interview if a man aged in his thirties asked them the following questions: “Do you have a boyfriend?”, “Do people find you desirable?” and “Do you think women should be required to wear bras at work?” Over two-thirds said they would refuse to answer at least one of the questions whilst sixteen of the participants said they would get up and leave.
When Woodzicka and LaFrance placed 25 women in this situation (with an actor playing the role of the interviewer), the results were vastly different. None of the women refused to answer the questions or left the interview.
In all these incidents of sexual abuse we typically find that an older man, who is more senior in the organisation or has a higher social status, preys on a younger, innocent woman. And perhaps most importantly, the perpetrator tends to hold the keys to the victim’s future prospects.
And there are many reasons why people remain silent. Three of the most common are fear, futility and loyalty – we fear consequences, we surmise that speaking up is futile because no action will be taken, or, as strange as it might sound, we feel a sense of loyalty to the perpetrator or our team.
There are a variety of dynamics that can cause people to reach these conclusions. The most common is power. In all these incidents of sexual abuse we typically find that an older man, who is more senior in the organisation or has a higher social status, preys on a younger, innocent woman. And perhaps most importantly, the perpetrator tends to hold the keys to the victim’s future prospects.
In these types of situations, it is easy to see how the victim can lose their sense of agency and feel disempowered. They might feel that even if they did speak up, nobody would believe their story. The mere thought of challenging such a “highly respected” individual is too daunting. Worse yet, their career would be irreparably damaged. Perhaps, by keeping quiet, they could get the break they need and put the experience behind them.
A second dynamic at play is what psychologists refer to as pluralistic ignorance. First conceived in the 1930s, it proposes that the silence of people within a group promotes a misguided belief of what group members are really thinking and feeling.
In the case of sexual harassment, when victims remain silent they create the illusion that the abuse is not widespread. Each victim feels they are isolated and suffering alone, further increasing the likelihood that they will repress their feelings.
By speaking out, women have shifted the norms surrounding sexual assault. Behaviour which may have been tolerated only a few years (perhaps months) ago is now out of bounds.
But as the events of the past few weeks have demonstrated, the norms promoting silence can crumble very quickly. People who suppress their feelings can find their voice as others around them break their silence. As U.S. legal scholar Cass Sunstein recently wrote in the Harvard Law Review Blog, as norms are revised, “what was once unsayable is said, and what was once unthinkable is done.”
And this is exactly what has happened over the past few months. Both perpetrators and victims alike are now reflecting on past indiscretions and questioning whether boundaries were crossed.
Only time will tell whether the shift in norms is permanent or fleeting. As is always the case with changes in social attitudes, this will be determined by a myriad of factors. The law plays a role but as the events of the past few months have demonstrated it is not as important as one might think.
Among other things, it will require the continued courage of victims. But perhaps more importantly it will require men, especially those who are in positions of power and respected members of our communities and institutions, to role model where the balance resides between extreme prudery at one end, and disgusting lechery on the other.
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BY Dennis Gentilin
Dennis Gentilin is an Adjunct Fellow at Macquarie University and currently works in Deloitte’s Risk Advisory practice.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Big Thinkers: Thomas Beauchamp & James Childress
Thomas L Beauchamp (1939—present) and James F Childress (1940—present) are American philosophers, best known for their work in medical ethics. Their book Principles of Biomedical Ethics was first published in 1985, where it quickly became a must read for medical students, researchers, and academics.
Written in the wake of some horrific biomedical experiments – most notably the Tuskegee Syphilis Study, where hundreds of rural black men, their partners, and subsequent children were infected or died from treatable syphilis – Principles of Biomedical Ethics aimed to identify healthcare’s “common morality”. These are its four principles:
- Respect for autonomy
- Beneficence
- Non-maleficence
- Justice
These principles are often in tension with one another, but all healthcare workers and researchers need to factor each into their reflections on what to do in a situation.
Respect for autonomy
Philosophers usually talk about autonomy as a fact of human existence. We are responsible for what we do and ultimately any action we take is the product of our own choice. Recognising this basic freedom at the heart of humanity is a starting point for Beauchamp and Childress.
By itself, the idea human beings are free and in control of themselves isn’t especially interesting. But in a healthcare setting, where patients are often vulnerable and surrounded by experts, it is easy for a patient’s autonomous decision to be disrespected.
Beauchamp and Childress were writing at a time when the expertise of doctors meant they often took extreme measures in doing what they had decided was in the best interests of their patient. They adopted a paternalistic approach, treating their patients like uninformed children rather than autonomous, capable adults. This went as far as performing involuntary sterilisations. In one widely discussed court case in bioethics, Madrigal v Quillian, ten Latina women in the US successfully sued after doctors performed hysterectomies on them without their informed consent.
Legally speaking, the women in Madrigal v Quillian had provided consent. However, Beauchamp and Childress explain clearly why the kind of consent they provided isn’t adequate. The women – who spoke Spanish as a first language – were all being given emergency caesareans. They were asked to sign consent forms written in English which empowered doctors to do what they deemed medically necessary.
In doing so, they weren’t being given the ability to exercise their autonomy. The consent they provided was essentially meaningless.
To address this issue, Beauchamp and Childress encourage us to think about autonomy as creating both ‘negative’ and ‘positive’ duties. The negative duty influences what we must not do: “autonomous actions should not be subject to controlling constraints by others”, they write. But positively, autonomy also requires “respectful treatment in disclosing information” so people can make their own decisions.
Respecting autonomy isn’t just about waiting for someone to give you the OK. It’s about empowering their decision making so you’re confident they’re as free as possible under the circumstances.
Nonmaleficence: ‘first do no harm’
The origins of medical ethics lie in the Hippocratic Oath, which although it includes a lot of different ideas, is often condensed to ‘first do no harm’. This principle, which captures what Beauchamp and Childress mean by non-maleficence, seems sensible on one level and almost impossible to do in practice on another.
Medicine routinely involves doing things most people would consider harmful. Surgeons cut people open, doctors write prescriptions for medicines with a range of side effects, researchers give sick people experimental drugs – the list goes on. If the first thing you did in medicine was to do no harm, it’s hard to see what you might do second.
This is clearly too broad a definition of harm to be useful. Instead, Beauchamp and Childress provide some helpful nuance, suggesting in practice, ‘first do no harm’ means avoiding anything which is unnecessarily or unjustifiably harmful. All medicine has some risk. The relevant question is whether the level of harm is proportionate to the good it might achieve and whether there are other procedures that might achieve the same result without causing as much harm.
Beneficence: do as much good as you can
Some people have suggested Beauchamp and Childress’s four principles are three principles. They suggest beneficence and non-maleficence are two sides of the same coin.
Beneficence refers to acts of kindness, charity and altruism. A beneficent person does more than the bare minimum. In a medical context, this means not only ensuring you don’t treat a patient badly but ensuring you treat them well.
The applications of beneficence in healthcare are wide reaching. On an individual level, beneficence will require doctors to be compassionate, empathetic and sensitive in their ‘bedside manner’. On a larger level, beneficence can determine how a national health system approaches a problem like organ donation – making it an ‘opt out’ instead of ‘opt in’ system.
The principle of beneficence can often clash with the principle of autonomy. If a patient hasn’t consented to a procedure which could be in their best interests, what should a doctor do?
Beauchamp and Childress think autonomy can only be violated in the most extreme circumstances: when there is risk of serious and preventable harm, the benefits of a procedure outweigh the risks and the path of action empowers autonomy as much as possible whilst still administering treatment.
However, given the administration of medical procedures without consent can result in legal charges of assault or battery in Australia, there is clearly still debate around how to best balance these two principles.
Justice: distribute health resources fairly
Healthcare often operates with limited resources. As much as we would like to treat everyone, sometimes there aren’t enough beds, doctors, nurses or medications to go around. Justice is the principle that helps us determine who gets priority in these cases.
However, rather than providing their own theory, Beauchamp and Childress pointed out the various different philosophical theories of justice in circulation. They observe how resources are distributed will depend on which theory of justice a society subscribes to.
For example, a consequentialist approach to justice will distribute resources in the way that generates the best outcomes or most happiness. This might mean leaving an elderly patient with no dependents to die in order to save a parent with young children.
By contrast, they suggest someone like John Rawls would want the access to health resources to be allocated according to principles every person could agree to. This might suggest we allocate resources on the basis of who needs treatment the most, which is the way paramedics and emergency workers think when performing triage.
Beauchamp and Childress’s treatment of justice highlights one of the major criticisms of their work: it isn’t precise enough to help people decide what to do. If somebody wants to work out how to distribute resources, they might not want to be shown several theories to choose between. They want to be given a framework for answering the question. Of course when it comes to life and death decisions, there are no easy answers.
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Big Thinker: Mary Wollstonecraft
Mary Wollstonecraft (1759—1797) is best known as one of the first female public advocates for women’s rights. Sometimes known as a “proto-feminist”, her significant contributions to feminist thought were written a century before the word “feminism” was coined.
Wollstonecraft was ahead of her time, both intellectually and in the way she lived. Pursuing a writing career was unconventional for women in 18th century England and she was denounced for nearly a century after her death for having a child out of wedlock. But later, during the rise of the women’s movement, her work was rediscovered.
Wollstonecraft wrote many different kinds of texts – including philosophy, a children’s book, a fictional novel, socio-political pamphlets, travel writings, and a history of the French Revolution. Her most famous work is her essay, A Vindication of the Rights of Woman.
Pioneering modern feminism
Wollstonecraft passionately articulated the basic premise of feminism in A Vindication of the Rights of Woman – that women should have equal rights to men. Though the essay was published during the French Revolution in 1792, its core argument that women are unjustifiably rendered subordinate to men remains.
Rather than domestic violence, women in senior roles and the gender pay gap, Wollstonecraft took aim at marriage, beauty, and women’s lack of education.
The good wife: docile and pretty
At the core of Wollstonecraft’s critique was the socioeconomic necessity for marriage – “the only way women can rise in the world”. In short, she argued marriage infantilised women and made them miserable.
Wollstonecraft described women as sacrificing respect and character for far less enduring traits that would make them an attractive spouse – such as beauty, docility, and the 18th century notion of sensibility. She argued, “the minds of women are enfeebled by false refinement” and they were “so much degraded by mistaken notions of female excellence”.
Mother of feminism and victim blamer?
Some readers of A Vindication for the Rights of Woman argued Wollstonecraft was only a small step away from victim blaming. She penned plenty of lines positioning women as wilful and active contributors to their own subjugation.
In Wollstonecraft’s eye, expressions of feminine gender were “frivolous pursuits” chosen over admirable qualities that could lift the social standing of her sex and earn women respect, dignity and quality relationships:
“…the civilised women of the present century, with few exceptions, are only anxious to inspire love, when they ought to cherish a nobler ambition, and by their abilities and virtues exact respect.”
While some might find Wollstonecraft was too harsh on the women she wanted to lift, her spear was very much aimed at men, “who considering females rather as women than human creatures, have been more anxious to make them alluring mistresses than rational wives”.
Grab it by the patriarchy
Like the word feminism, the word patriarchy was not available to Wollstonecraft. She nevertheless argued men were invested in maintaining a society where they held power and excluded women.
Wollstonecraft commented on men’s “physical superiority” although she did not accept social superiority should follow.
“…not content with this natural pre-eminence, men endeavour to sink us still lower, merely to render us alluring objects for a moment.”
Wollstonecraft’s hammering critique against a male dominated society suggested women were forced to be complicit. They had few work options, no property or inheritance rights, and no access to formal education. Without marriage, women were destined to poverty.
What do we want? Education!
Wollstonecraft pointed out all people regardless of sex are born with reason and are capable of learning.
In a time where it was considered racial to insist women were rational beings, Wollstonecraft raised the common societal belief that women lacked the same level of intelligence as men. Women only appeared less intelligent, Wollstonecraft argued, because they were “kept in ignorance”, housebound and denied the formal education afforded to men.
Instead of receiving a useful education, women spent years refining an appealing sexual nature. Wollstonecraft felt “strength of body and mind are sacrificed to libertine notions of beauty”. Women’s time was poorly invested.
How could women, who were responsible for raising children and maintaining the home, be good mothers, good household managers or good companions to their husbands, if they were denied education? Women’s education, Wollstonecraft contended, would benefit all of society.
Wollstonecraft suggested a free national schooling system where girls and boys were taught together. Mixed sex education, she argued, “would render mankind more virtuous, and happier” – because society and the term mankind itself would no longer exclude girls and women.
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BY Kym Middleton
Former Head of Editorial & Events at TEC, Kym Middleton is a freelance writer, artistic producer, and multi award winning journalist with a background in long form TV, breaking news and digital documentary. Twitter @kymmidd
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Big Thinker: Dennis Altman
Dennis Altman (1943—present) is an internationally renowned queer theorist, Australian professor of politics and current Professorial Fellow at La Trobe University.
Beginning his intellectual career in the 1970s, his impact on queer thinking and gay liberation can be likened to Germaine Greer’s contributions to the women’s movement.
Much of Altman’s work explores the differences between gay radical activists who question heteronormative social structures like marriage and nuclear family, and gay equality activists who want the same access to such structures.
“Young queers today are caught up in the same dilemma that confronted the founders of the gay and lesbian movements: Do we want to demonstrate that we are just like everyone else, or do we want to build alternatives to the dominant sexual and emotional patterns?”
Divided in diversity, united in oppression
Altman’s influential contribution to gay rights began with his first of many books, Homosexual: Oppression and Liberation. The 1971 text has been published in several countries and is still widely read today. It is often regarded as an uncannily correct prediction of how gay rights would improve over the decades – something that would have been difficult to imagine when the first Sydney Mardi Gras was met with police violence.
Altman predicted homosexuality would become normalised and accepted over time. As oppressions ceased, and liberation was realised, sexual identities would become less important and the divisions between homosexual and heterosexual would erode. Eventually, openly gay people would come to be defined the way straight people were – by characteristics other than their sexuality like their job, achievements or interests.
Despite gay communities being home to diversity and division, the shared experience of discrimination bonded them, Altman argued. Much like women’s and black civil rights advocates could testify, oppression has an upside – it forms communities.
End of the homosexual?
Altman’s 2013 book The End of the Homosexual? follows on from the ideas in his first. It is often described as a sequel despite the 40 years and several other publications between the two. He wrote it at a time when same sex marriage was beginning to be legalised around the world.
Altman recently reflected on his old work and said he was wrong to believe identity would become less important as acceptance grew but right to predict being gay would not be people’s defining characteristic.
He has come across as both happy and disappointed by the normalisation of same sex relationships. While massive reductions in violence and systemic discrimination is something you can only celebrate, Altman almost mourns the loss of the radical roots of gay liberation that formed in response to such injustices.
Without the oppressions of yesteryear, what binds diverse people into gay communities today? What distinguishes between a ‘gay lifestyle’ and a ‘straight lifestyle’ when they share so many characteristics like marriage, children, and general social acceptance?
Of course, all things are still not equal today. While people in the West largely enjoy safety and equality, people in countries like Russia are experiencing regressions. Altman hopes gay liberationists could have impact there.
Same sex marriage
Although he’s considered a pioneer in queer theory, a field that questions dominant heterosexual social structures, Altman does not support same sex marriage.
Some people might feel a sense of betrayal that such a well respected gay public intellectual has not put his influence behind this campaign. But Altman’s lack of support is completely consistent with the thinking he has been sharing for decades. Like a radical women’s liberationist, he has reservations about marriage itself – whether it’s same sex or opposite sex.
Altman takes issue with traditional marriage’s “assumption that there is only one way of living a life”. He has long been concerned the positioning of wedlock as the norm forgets all the people who are not living in long term, monogamous relationships. He argues marriage isn’t even all that normal in Australia anymore with single person households growing faster than any other category.
Altman was with his spouse for 20 years until death parted them. While that may sound like a marriage, the role of state and Church deeply bothers him, and so they were together without the blessings of those institutions. He has expressed confusion over the popular desire to be approved by the state or religious bodies that do not want to sanction same sex relationships. It’s because he doesn’t consider same sex marriage a human rights issue, when compared to things like starvation, oppression, and other forms of suffering.
Nevertheless, Altman recognises the importance of equal rights and understands why marriage for heterosexuals and not homosexuals is unfair. True to form he continues to question the institution itself by flipping the marriage equality argument on its head. He advocates for “the equal right not to marry”.
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BY Kym Middleton
Former Head of Editorial & Events at TEC, Kym Middleton is a freelance writer, artistic producer, and multi award winning journalist with a background in long form TV, breaking news and digital documentary. Twitter @kymmidd
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Assisted dying: 5 things to think about
Making sense of our lives means thinking about death. Some philosophers, like Martin Heidegger and Albert Camus, thought death was a crucial, defining aspect of our humanity.
Camus went so far as to say considering whether to kill oneself was the only real philosophical question.
What these philosophers understood was that the philosophical dream of living a meaningful life includes the question of what a meaningful death looks like, too. More deeply, they encourage us to see that life and death aren’t opposed to one another: dying is a part of life. After all, we’re still alive when we’re dying so how we die impacts how we live.
The Ethics Centre was invited to make a submission to the NSW Parliamentary Group on Assisted Dying regarding a draft bill the parliament will debate soon. The questions we raised were in the spirit of connecting the good life to a good death.
Simon Longstaff, director of the Centre and author of the submission, writes, “It is not the role of The Ethics Centre to prescribe how people ought to decide and act. Our task is a more modest one – to set out some of the ethical considerations a person might wish to take into account when forming a view.”
Here are some of the key issues we explored, which are relevant to any discussion of assisted dying, not just the NSW Bill.
Does a good life involve suffering?
The most common justification for assisted dying or euthanasia is to alleviate unbearable suffering. This is based in a fairly universal sentiment. Longstaff writes, “To our knowledge, there is no religion, philosophical tradition or culture that prizes suffering … as an intrinsic good”.
Good things can come as a result of suffering. For example, you might develop perseverance or be supported by family. But the suffering itself is still bad. This, Longstaff argues, means “suffering is generally an evil to be avoided”.
There are two things to keep in mind here.
First, not all pain is suffering. Suffering is a product of the way we interpret ourselves and the world around us. Whether pain causes suffering depends on our response: It’s a subjective experience. Nobody but the sufferer can really determine the extent of their suffering. Recognising this could suggest a patient’s self-determination is crucial to decisions around assisted dying.
Second, just because suffering is generally a bad thing doesn’t mean that anything aiming to avoid it is good. We can agree that the goal of reducing suffering is probably good but still need to interrogate whether the method we’ve chosen to reduce suffering is itself ethical.
The connection between a good death and a good life
There’s not always a solution to suffering, no matter what anecdote you try, whether it be medicine, psychology, religion or philosophy. Sometimes suffering stays a while.
When there is no avenue to alleviate someone’s pain and anguish, Longstaff suggests “life can be experienced … as nothing more than an unrelenting and extra-ordinary burden”.
This is the context in which we should consider whether to help someone to end their lives or not. Although many faiths and beliefs affirm the importance and sacredness of life, if we’re thinking about a good, meaningful life, we need to pay some attention to whether life is actually of any value to the person living it. As Longstaff writes, “To say that life has value regardless of the conditions of a person’s existence may justify the continuation or glorification of lives that could be best described as a ‘living hell’”.
He continues, “To cause such a state would be indefensible. To allow it to persist without available relief is to act without mercy or compassion. To set aside those virtues is to deny what is best in our form of being.”
A responsible person should have autonomy over their death
Most people think it’s important for adults to be held responsible for their actions. Philosophers think this is a product of autonomy – the ability for people to determine the course of their own actions and lives.
Some philosophers think autonomy has an intrinsic connection to dignity. What makes humans special is their ability to make free choices and decisions. What’s more, we usually think it’s wrong to do things that undermine the free, autonomous choices of another person.
If we see death as a part of life, not distinct from it, it seems like we should allow – even expect – people to be responsible for their deaths. As Longstaff writes, “since dying is a part of life, the choices people make about the manner of their dying are central considerations in taking full responsibility for their lives”.
The role of the terminal disease
Some proposed laws, like the draft NSW Bill, suggest a person can seek to end their own life when their terminal disease causes them unbearable suffering. So, if you’re dying of lung cancer, you can only end your life if the cancer itself is causing you unbearable pain. It is necessary to consider if assisted dying be restricted in this way.
Imagine you’ve got a month to live and the only thing that gives you meaning is your ability to go outside and watch the sunrise. One day, you break your leg and are bedridden. Should you now be forced to live for a month in a state you find agonising and meaningless because your broken leg isn’t what’s killing you?
Longstaff argues, “If severe pain and suffering are essential criteria for being eligible for assistance, then on the basis that like cases should be treated in a like manner, assistance should be offered to a person who meets all the other specified criteria – even if their pain and suffering is not caused by their illness”.
Who is eligible for assisted dying?
Many laws try to carve out special categories of people who are and aren’t eligible to request assisted dying. They might do so on the basis of life expectancy, whether the illness is terminal or the age of the patient.
In determining who should be eligible, two principles are worth thinking about.
First, the principle of just access to medical care. Most bioethicists agree before we can figure out who receives medical treatment, we need to have a broader idea of what justice looks like.
Some think justice means people get what they need. For these people, granting medical care is based on how urgently it’s required. Others think justice means getting the best outcome. These people think we should distribute medicine in a way that creates the most quality of life for patients.
Depending on how we view justice, we’ll have different views on who is eligible for assisted dying. Is it those whose quality of life is lowest? If so, it might not be terminal cases in need of treatment. Is it those who are most in need of treatment? This might include young children who many people are reluctant to provide assisted dying to. Until we’re clear on this principle, it’ll be hard to decide who is eligible and who is not.
The second principle worth thinking about is to treat like cases alike. This idea comes from the legal philosopher HLA Hart. He thought it was essential for ethical and legal distinctions to be made on the basis of good reasons, not arbitrary measures. A good example is if two people committed the same crime, they should receive the same penalty. The only reason for not treating them the same is if there is relevant difference in the two cases.
This is important to think about in terms of strict eligibility criteria. Let’s say we reserve assisted dying for people over 25 years old, which the NSW draft Bill does. Hart would encourage us to wonder, as Longstaff noted in The Ethics Centre’s submission, “what ethically significant difference lies between a 24-year-old with six months to live and who wishes to receive assisted dying and a 25-year-old in the same condition?”
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Ethics Explainer: The Panopticon
The panopticon is a disciplinary concept brought to life in the form of a central observation tower placed within a circle of prison cells.
From the tower, a guard can see every cell and inmate but the inmates can’t see into the tower. Prisoners will never know whether or not they are being watched.
This was introduced by English philosopher Jeremy Bentham. It was a manifestation of his belief that power should be visible and unverifiable. Through this seemingly constant surveillance, Bentham believed all groups of society could be altered. Morals would be reformed, health preserved, industry invigorated, and so on – they were all subject to observation.
Think of the last time you were at work and your boss walked in the room. Did you straighten up and work harder in their presence? Now imagine they were always in the room. They wouldn’t be watching you all the time, but you’d know they were there. This is the power of constant surveillance – and the power of the panopticon.
Foucault on the panopticon
French philosopher, Michel Foucault, was an outspoken critic of the panopticon. He argued the panopticon’s ultimate goal is to induce in the inmates a state of conscious visibility. This assures the automatic functioning of power. To him, this form of incarceration is a “cruel, ingenious cage”.
Foucault also compares this disciplinary observation to a medieval village under quarantine. In order to stamp out the plague, officials must strictly separate everyone and patrol the streets to ensure villagers don’t leave their homes and become sick. If villagers are caught outside, the punishment is death.
In Foucault’s village, constant surveillance – or the idea of constant surveillance – creates regulation in even the smallest details of everyday life. Foucault calls this a “discipline blockade”. Similar to a dungeon where each inmate is sequestered, administered discipline can be absolute in matters of life or death.
On the other hand, Bentham highlights the panopticon’s power as being a “new mode of obtaining mind over mind”. By discarding this isolation within a blockade, the discipline becomes a self-propagating mental mechanism through visibility.
The panopticon today: data
Today, we are more likely to identify the panopticon effect in new technologies than in prison towers. Philosopher and psychologist Shoshanna Zuboff highlights what she calls “surveillance capitalism”. While Foucault argued the “ingenious” panoptic method of surveillance can be used for disciplinary methods, Zuboff suggests it can also be used for marketing.
Concerns over this sort of monitoring date back to the beginning of the rise of personal computers in the late 80s. Zuboff outlined the PC’s role as an “information panopticon” which can monitor the amount of work being completed by an individual.
Today this seems more applicable. Employers can get programs to covertly track keystrokes of staff working from home to make sure they really are putting in their hours. Parents can get software to monitor their children’s mobile phone use. Governments around the world are passing laws so they can collect internet data on people suspected of planning terror attacks. Even public transport cards can be used to monitor physical movements of citizens.
This sort of monitoring and data collection is particularly analogous with the panopticon because it’s a one-way information avenue. When you’re sitting in front of your computer, browsing the web, scrolling down your newsfeed and watching videos, information is being compiled and sent off to your ISP.
In this scenario, the computer is Bentham’s panopticon tower, and you are the subject from which information is being extracted. On the other end of the line, nothing is being communicated, no information divulged. Your online behaviour and actions can always be seen but you never see the observer.
The European Union has responded to this with a new regulation, known as “the right to an explanation”. It states users are entitled to ask for an explanation about how algorithms make decisions. This way, they can challenge the decision made or make an informed choice to opt out.
In these new ways, Bentham’s panopticon continues to operate and influence our society. Lack of transparency and one-way communication is often disconcerting, especially when thought about through a lens of control.
Then again, you might also argue to ensure a society functions, it’s useful to monitor and influence people to do what is deemed good and right.
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Big Thinker: Michel Foucault
Michel Foucault (1926—1984) was a French philosopher, historian and psychologist whose work explored the underlying power relationships in a range of our modern institutions.
Given Foucault’s focus on the ways institutions wield power over us, and that trust in institutions is catastrophically low around the world today, it’s worth having a look at some of the radical Frenchman’s key ideas.
History has no rhyme or reason
At the centre of Foucault’s ideas is the concept of genealogy – the word people usually use when they’re tracing their family history. Foucault thought all of history emerged in the same way a family does – with no sense of reason or purpose.
Just like your existence was the result of a bunch of random people meeting and procreating over generations, he thought our big ideas and social movements were the product of luck and circumstance. He argued what we do is both a product of the popular ways of thinking at the time (which he called rationalities) and the ways in which people talked about those ideas (which he called discourses).
Today Foucault might suggest the dominant rationalities were those of capitalism and technology. And the discourse we use to talk about them might be economics because we think about and debate things in terms their usefulness, efficiency and labour saving. Our judgements about what’s best are filtered through these concepts, which didn’t emerge because of any conscious historical design, but as random accidents.
You might not agree with Foucault. There are people who believe in moral progress and the notion our world is improving as time goes on. However, Foucault’s work still highlights the powerful sense in which certain ideas can become the flavour of the month and dominate the way we interpret the world around us.
For example, if capitalism is a dominant rationality, encouraging us to think of people as economic units of production rather than people in their own right, how might that impact the things we talk about? If Foucault is right, our conversations would probably centre on how to make life more efficient and how to manage the demands of labour with the other aspects of our life. When you consider the amount of time people spend looking for ‘life hacks’ and the ongoing discussion around work/life balance, it seems like he might have been on to something.
But Foucault goes further. It’s not just the things we talk about or the ways we talk about them. It’s the solutions we come up with. They will always reflect the dominant rationality of the time. Unless we’ve done the radical work of dismantling the old systems and changing our thinking, we’ll just get the same results in a different form.
Care is a kind of control
Although many of Foucault’s arguments were new to the philosophical world when he wrote them, they were also reactionary. His work on power was largely a response to the tendency for political philosophers to see power only as the relationship between the sovereign and the citizen – or state and individual. When you read the works of social contract theorists like Thomas Hobbes and Jean Jacques Rousseau, you get the sense politics consists only of people and the government.
Foucault challenged all this. He acknowledged lots of power can be traced back to the sovereign, but not all of it can.
For example, the rise of care experts in different fields like medicine, psychology and criminology creates a different source of power. Here, power doesn’t rest in an ability to control people through violence. It’s in their ability to take a person and examine them. In doing so, the person is objectified and turned into a case (we still read cases in psychiatric and medical journals now). This puts the patients under the power of experts who are masters of the popular medical and social discourses at the time.
What’s more, the expert collects information about the patient’s case. A psychiatrist might know what motivates a person’s behaviour, what their darkest sexual desires are, which medications they are taking and who they spend their personal time with. All of this information is collected in the interests of care but can easily become a tool for control.
A good example of the way non-state groups can be caring in a way that creates great power is in the debate around same sex marriage. Decades ago, LGBTI people were treated as cases because their sexual desires were medicalised and criminalised. This is less common now but experts still debate whether children suffer from being raised by same sex parents. Here, Foucault would likely see power being exercised under the guise of care – political liberties, sexuality and choice in marital spouse are controlled and limited as a way of giving children the best opportunities.
Prison power in inmate self-regulation
Foucault thought prisons were a really good example of the role of care in exercising power and how discourses can shape people’s thinking. They also reveal some other unique things about the nature of power in general and prisons more specifically.
In Discipline and Punish: The Birth of the Prison, Foucault observed a monumental shift in how society dealt with crime. Over a few decades, punishments went from being public, violent spectacles like beheadings, hangings and mutilations to private, clinical and sterile exercises with the prison at the centre of it all. For Foucault, the move represented a shift in discourse. Capital punishment and torture were out, discipline and self-regulation were in.
He saw the new prison, where the inmates are tightly managed and regulated by timetables – meal time, leisure time, work time, lights out time – as being a different form of control. People weren’t in fear of being butchered in the town square anymore. The prison aimed to control behaviour through constant observation. Prisoners who were always watched, regulated their own behaviour.
This model of the prison is best reflected in Jeremy Bentham’s concept of the panopticon. The panopticon was a prison where every cell is visible from a central tower occupied by an unseen guard. The cells are divided by walls so the prisoners can’t engage with each other but they are totally visible from the tower at all times. Bentham thought – and Foucault agreed – that even though the prisoners wouldn’t know if they were being watched at any moment, knowing they could be seen would be enough to control their behaviour. Prisoners were always visible while guards were always unseen.
Foucault believed the panopticon could be recreated as a factory, school, hospital or society. Knowing we’re being watched motivates us to conform our behaviours to what is expected. We don’t want to be caught, judged or punished. The more frequently we are observed, the more likely we are to regulate ourselves. The system intensifies as time goes on.
Exactly what ‘normality’ means will vary depending on the dominant discourse of the time but it will always endeavour to reform prisoners so they are useful to society and to the powerful. That’s why, Foucault argued, prisoners are often forced to do labour. It’s a way of taking something society sees as useless and making it useful.
Even when they’re motivated by care – for example, by the belief that work is good for prisoners and helps them reform – the prison system serves the interests of the powerful in Foucault’s eyes. It will always reflect their needs and play a role in enforcing their vision of how society should be.
You needn’t accept all of Foucault’s views on prisons to see a few useful points in his argument. First, prisons haven’t been around forever. There are other ways of dealing with crime we could use but choose not to. Why do we think prisons are the best? What are the beliefs driving that judgement?
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James C. Hathaway on the refugee convention
To mark the 2017 anniversary of the UN’s World Refugee Day and Australia’s Refugee Week, we spoke to Professor James Hathaway, the world’s leading expert on refugee law.
Watch this video for his in-depth analysis of the Refugee Convention, an agreement made in 1951 in response to World War II. Is it still relevant? What needs to change? He doesn’t hold back!
James’ work is used by courts all over the world when interpreting the Refugee Convention and applying it to decisions. His many publications include the seminal book co-authored with Australia’s Michelle Foster, The Law of Refugee Status.
Follow James Hathaway on Twitter here: @JC_Hathaway
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BY James C. Hathaway
James Hathaway is an American-Canadian scholar of international refugee law and related aspects of human rights and public international law. His work is regularly cited by the most senior courts of the common law world, and has played a pivotal role in the evolution of refugee studies scholarship.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Ethics Explainer: Rights and Responsibilities
When you have a right either to do or not do something, it means you are entitled to do it or not.
Rights are always about relationships. If you were the only person in existence, rights wouldn’t be relevant at all. This is why rights always correspond to responsibilities. My rights will limit the ways you can and can’t behave towards me.
Legal philosopher Wesley Hohfeld distinguished between two sets of rights and responsibilities. First, there are claims and duties. Your right to life is attached to everyone else’s duty not to kill you. You can’t have one without the other.
Second, there are liberties and no-claims. If I’m at liberty to raise my children as I see fit it’s because there’s no duty stopping me – nobody can make a claim to influence my actions here. If we have no claim over other people’s liberties, our only duty is not to interfere with their behaviour.
But your liberty disappears as soon as someone has a claim against you. For example, you’re at liberty to move freely until someone else has a claim to private property. Then you have a duty not to trespass on their land.
It’s useful to add into the mix the distinction between positive and negative rights. If you have a positive right, it creates a duty for someone to give you something – like an education. If you have a negative right, it means others have a duty not to treat you in some way – like assaulting you.
All this might seem like tedious academic stuff but it has real world consequences. If there’s a positive right to free speech, people need to be given opportunities to speak out. For example, they might need access to a radio program so they can be heard.
By contrast, if it’s a negative claim right, nobody can censor anyone else’s speech. And if free speech is a liberty, your right to use it is subject to the claims of other. So if other people claim the right not to be offended, for example, you may not be able to speak up.
There are a few reasons why rights are a useful concept in ethics.
First, they are easy to enforce through legal systems. Once we know what rights and duties people have, we can enshrine them in law.
Second, rights and duties protect what we see as most important when we can’t trust everyone will act well all the time. In our imperfect world, rights provide a strong language to influence people’s behaviour.
Finally, rights capture the central ethical concepts of dignity and respect for persons. As the philosopher Joel Feinberg writes:
Having rights enables us to “stand up like men,” to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others.
Indeed, respect for persons […] may simply be respect for their rights, so that there cannot be the one without the other; and what is called “human dignity” may simply by the recognizable capacity to assert claims.
Feinberg suggests rights are a manifestation of who we are as human beings. They reflect our dignity, autonomy and our equal ethical value. There are other ways to give voice to these things, but in highly individualistic cultures, what philosophers call “rights talk” resonates for two reasons: individual freedom and equality.
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