A Place for Ethics

On this episode of EJBTalks Stuart Shapiro welcomes Professor Patrick Hill, who teaches ethics classes across Bloustein’s programs. Patrick has an in-depth discussion with Stuart about ethics and its application in informing planning, policy, and public health.  Professor Hill also discusses his new book “No Place for Ethics”, which centers on the United States Supreme Court and how the judicial system has come to exclude consideration of ethics and instead elevates adherence to the law over ethical concerns. Hill discusses a particularly interesting–and abominable–example he uses in his book which demonstrates how law can be impoverished without ethics.  Stuart also asks Patrick to reflect on his time at Bloustein and his thoughts about his legacy.

Stuart Shapiro
Welcome to EJBTalks. I’m Stuart Shapiro, the Associate Dean of Faculty at the Bloustein School, and the purpose of this podcast is to highlight the work of my colleagues and our alumni in the fields of policy planning and health, and everything they’re doing to make the world, the country, and New Jersey a better place.

Today we’re continuing our series of conversations with retiring, or recently retired faculty. Professor Patrick Hill joins us today. He is currently in his last semester at the Bloustein School, where for more than a decade, he’s taught ethics across our various programs. Patrick, welcome to the podcast.

Patrick Hill
Thank you very much, Stuart. It’s a pleasure to be here.

Stuart Shapiro
You have a Ph.D. in ethics and a background in philosophy, how in the world did you end up with Bloustein School?

Patrick Hill
Well, that’s a good question, and sometimes I asked myself the same way. ((laughing))

Stuart Shapiro
((Laughing))

Patrick Hill
I think actually, it was an accident. I was invited by Dona Schneider, this was some 11-12 years ago, to sit in on a conversation with one of her Ph.D. candidates, who was as I recall discussing or researching national healthcare systems. And they thought that I might be able to add some information with regard to the system in the UK. And I gather from that conversation, which I thoroughly enjoyed, I gather that I made some sort of impression on Dona. And subsequently, I was invited to start as a PTL. Apparently, the prof who was teaching that course in public health law and ethics was leaving. And so they needed a replacement. And just by sheer coincidence, there I was. I think that’s how I came to Bloustein.

Stuart Shapiro
And with that, a faculty member was born. So how does what you teach in general, it’s been ethics courses, fit so well in virtually every program in the Bloustein School?

Patrick Hill
Yes, it may seem a bit odd or counterintuitive, public policy planning, public health… Actually, when you look at it a little more carefully, you see, for example, with public health, the issues have to do with the distribution of resources within society. Planning I think, is in many respects, a parallel to that, and so would be policy. They can all be approached and interpreted within the context, say something like the social contract. And that’s… fundamentally it’s an ethical concept. It’s sort of a mutually reciprocal relationship between citizen and society, and mutual responsibilities.

Social Justice is central to that, obviously, within the context of a society of restraints on individuals, in the interests of the public’s well being. And in that situation, there can be conflicts that can be resolved, obviously, by law, and many of them are. But more fundamentally, if you will, to inform the very policy or the very planning, or the very intervention in public health, to have it informed by an ethics orientation is really important, indeed, necessary. So it doesn’t seem to me to be surprising. And I’ve always sensed that I fit in very well, even though I’m the only one with this background. And perhaps that’s one of the reasons why I’ve been spread over the separate schools.

Stuart Shapiro
Certainly, all of those disciplines are concerned with what’s right. Like what’s the right thing to do and as such, that at its core has to be informed by some system of ethics, some set of beliefs about what right means. So I think it is quite natural, indeed that you are here. I agree. You have a new book coming out, why don’t you tell us a little bit about that?

Patrick Hill
Sure. It’s entitled, “No Place for Ethics”…

Stuart Shapiro
… Which isn’t Bloustein School ((laughing))… It’s not about the Bloustein School.

Patrick Hill
No. Actually, it’s about the United States Supreme Court. And the judicial review system that they use, and legal positivism,
and the book itself, which took me about four years to write actually grew out of my teaching in the public health courses. Because several of the cases that I’ve included in the book were cases that I taught during my public health ethics and law courses. The basic thesis of the book is that, because judicial review in the United States since the 19th century, has been informed by legal positivism, it has of said purpose excluded any consideration of ethics. In other words, the perception of law, the understanding of law in our judicial review system within the Supreme Court, all of the courts, it’s not just the Supreme Court, but I focused on the Supreme Court.

They are all of thinking of law, as in any way involving ethics. They would see that as either moralizing law, or else legalizing morals. In either case, they would see that as contamination. And, of course, this grows out of, say, a historical development in the United States where we became much more pluralistic. And we began to see that for at least efficiency’s sake, just thinking of law as low as written simply as authorized by those authorized to enact law was a sufficient explanation and justification for law. So the much older tradition I traced back to the natural law theory is, of course, it’s not just law as so ordered, but it is law as just. And so that would suggest then that law is subject in the final analysis to ethics and answerable to ethics. And the cases that I selected, were, in fact, to demonstrate how as a result of this separation of ethics from law, they, while constitutionally they may pass muster, ethically they don’t. And they are seriously deficient in that regard.

Stuart Shapiro
Can you give us an example of one of them?

Patrick Hill
Sure. I think one of the most poignant cases that I discuss in the book is The DeShaney versus Winnebago case. The decision was written by Chief Justice Rehnquist. And it was a six to three decision. It involved a young boy, four-year-old boy, Joshua DeShaney, whose parents had been divorced. His custody was given to his father. The father moved to Wisconsin, and there he proceeded to physically abuse Joshua so badly that eventually, he suffered irreparable brain damage and was largely institutionalized. At this point, the mother who was still living in California–Joshua and his father had moved to Wisconsin–sued the father. But more directly sued the Department of Social Services in Winnebago in Wisconsin, on the grounds that their care of him had in fact, violated his liberty interests under the due process clause of the 14th amendment.

The case finally went to the Supreme Court. And the ultimate decision was, of course, was not in favor of Joshua, but was in fact in favor of the Department of Social Services. What was very disturbing about the case from an ethics point of view, a decision from an ethics point of view; it was premised on the due process clause, the substantive due process clause of the 14th amendment. And, according to that, the government has no positive obligation to protect the interests of the citizen. It merely has to refrain from interfering with those rights. And so what Chief Justice Rehnquist did was drew a very, very fine and if you will, the incommensurable division between action and inaction. His argument essentially was that look, Anne Kemmeter, who was in fact the social worker for the Winnebago department of social services and who tracked Joshua for over a year, drew up detailed notes of his treatment. Did in fact, at one point, make a recommendation which was carried out and withdrew Joshua from the custody of his father brought into hospital to be inspected, examined, and so on. In other words, the department was intimately involved for over a year observing the care that Joshua was receiving from the Father.

They even had an agreement with the father, his father never carried out, which was that he should seek psychological help. And he was at that point living with a girlfriend. And apparently, she was very much involved in the abuse, and they had asked him to remove her from the house. That was not done. Yet, when, as I say, Chief Justice Rehnquist looked at the facts of the case, he drew this very, very stark division between action and inaction. And his argument was, look, the Department of Social Services in Winnebago did itself not inflict this physical harm on Joshua. So there was no action in that sense. And therefore, they cannot be held accountable. The due process clause is only there to protect the individual from government interference.

And since the Department of Social Services as a government agency did not inflict this damage, therefore, it could not be held accountable. Now, that might be fine in large on this legal positivistic interpretation of the law. But if you superimpose an ethics analysis on that, you would come to see that for example, the intimate involvement, even though the Department of Social Services, even though obviously, they hadn’t inflicted this physical damage, they behaved in such a way that they knew that it was going on. They did nothing. And in fact, in doing nothing, even though they took responsibility for a period of time, took Joshua out of custody of his father, but then returned to him. They were at least complicit from a moral perspective in the damage that was done to Joshua.

The fact that they returned him to his father’s custody. Which, interestingly, Chief Justice Rehnquist, and you might find this mind-boggling, said that that left Joshua in no worse harm than before. But in point of fact, it was this sort of tacit permission that was given to the Father that encouraged him to continue to abuse Joshua. So this decision has, I mean, it’s an appalling decision, it seems to me. It has been described as an abomination by a number of commentators, legal commentators, but certainly it demonstrated how impoverished law can be in the implementation of its interpretations application if, in fact, we remove ethics considerations from it.

Stuart Shapiro
Yeah, no, it’s an excellent example. I didn’t know about that case, in particular. And it does strike me that in, there are still… there are now so many of us that observe the legal scene, and so many people that look at it, and still do equate being legal with being just and why do you think that is? I mean, you see students in the classroom, I’m sure that have that sensibility? Where does that come from?

Patrick Hill
Now, that’s a very difficult question to answer. I mean, I’m puzzled by it myself. Let me suggest a couple of considerations. I mean, I think one is that each of us, I think, naturally thinks of himself or herself as ethical. We don’t like to think that we are prone to do things that are immoral or unethical. So there is that predisposition in each of us, I think, to think of ourselves ethically in positive terms. Now, the other thing, of course, is that law has functioned as a normative guide of our behavior. And so we are inclined to think that, well, if I’m being “legal”, then I’m not doing anything wrong, surely, and if I’m not doing anything wrong, then clearly I can possibly think that I’m doing right. And that, of course, is logically the mistake here.

Because just because you think you’re doing right doesn’t necessarily mean to say that you are not doing something wrong, any more than you’re not doing something wrong, necessarily means that you’re doing something right. Neither follows logic. But I think there is this, there is this persuasion. And in any civilized country, where you have a well-established legal system, you do have principles like the due process clause. These are all when you examine closely, these are all rooted, actually, in ethical principles.

Stuart Shapiro
Absolutely.

Patrick Hill
Due process is derived directly from the concept of the integrity of the human being, rights that they enjoy, simply because they’re human beings, and so on. So there is this under the surface, if you will, this sense of being ethical, and, as it were, resorting to law, as it were to be the confirmation of that. And I think that’s where the mistake comes in. But that, I think, is why we’re inclined to think of the one as plying the other. And it’s also interesting, you know, when, for example, politicians are hauled before the microphone, and they’ve been caught. The one thing that they never say, I did nothing illegal, they always say I did nothing wrong.

Stuart Shapiro
Right.

Patrick Hill
Pretty interesting. And, of course, what they’re saying is that implying, because it’s just really not… I’ve not behaved illegally, and therefore, I can say that I’ve not done wrong. But they will never say overtly, I have done nothing illegal because they know they have.

Stuart Shapiro
Yeah, exactly. And I do wonder to some degree, whether, how much it’s our cynicism with our political processes and our public choice processes that have sort of rolled up our faith in law as something that we have to hang our hat on and count on in order to get the quote, right outcomes.

Patrick Hill
Yeah, it is a tantalizing question. It really is.

Stuart Shapiro
So what do you want your students to get out of your classes, as you’ve taught over this past dozen years or so?

Patrick Hill
Well, I think, from my perspective, as an ethicist, the thing that I always emphasize is the point that ethics is objective. In other words, it is a logical system of assessing human behavior. It grows out of going back all the way to the ancient Greeks, and even earlier. It goes back to sort of a fundamental question that they asked, and that was, what is the good life? As a human being, what is it? Or how is it that we ought to live our lives that is fulfilling that is congruent with our nature, as obviously physical beings, but also as rational animals?

And they’ve developed a whole series of principles, which are objective, and which are designed to guide our behavior. And so very often when I asked the question in class, well, you know, what is ethics? What does it do? They’ll say, well, it tells you the difference between right or wrong, which of course, does mean that’s his purpose. And then I say, well, so what is right, what is wrong? And they will give me answers that clearly indicate that as far as they’re concerned, it’s really up to you as an individual subjectively, to determine what is right and what is wrong. And my point, of course, is that if that’s the case, then I might as well get rid of ethics, it serves no purpose.

And I give them the sort of example that you know if you’re saying in public policy, and you’re developing a public policy, say on healthcare, and you’ve got one person in the team recommending this or recommended that and a third recommending something else. So, you’re trying to say, well, what is the best policy by way of providing health care for the citizen? it fundamentally is an ethical question because it’s about social justice and the distribution of medical resources within society. But if you have one person subjectively thinking this and another person is definitely thinking that you are essentially like a deer in headlights. There’s no way that you can reconcile these differences, unless you have a way of coming back to certain fundamental principles, which provide you with objective criteria, and which, enable you to become disinterested in the outcome.

And this means that an ethics decision is different from a prudential decision because a prudential decision is usually one that is in self-interest. But an ethics decision is one that is universally applicable, is universally good, or beneficial. It transcends various differences, whether in education or wealth, or whatever. And is able to address the issue, but from this universal perspective, and that’s that level of disinterestedness.

Now one of the examples that I use in my course is the famous case of Socrates and his trial, and is sentenced to death of self-infliction, by drinking hemlock. And it’s the famous dialogue with Crito. And well, Socrates has been condemned, he’s sitting in prison waiting for the day to arrive, and he’s going to be given the hemlock to drink. And his friend Crito comes to him and says, Socrates, this is ridiculous, this is an unjust trial, this is a horrible decision, you do not deserve this, you need to escape. And so Socrates is then confronted with this dilemma, should I or should I not escape. And essentially, he goes through a very detailed examination of either decision and arrives, eventually at the decision that now he ought not to do that. Why, because he would betray his commitments to the city of Athens.

And so the ethics, the principles that he resorted to, such as one ought to keep one’s promises, that is, one ought to be faithful to one’s commitments to society to Athens, which provided him with so much good, some benefit, and so on. Once you do no harm, if he escapes the example of his escaping, and if you will, thumbing his nose at the authorities of Athens would be a very bad example. And so from a completely disinterested perspective, even though it means his death, he decides that this is what he ought to do.

And it’s there in that word ought, that lies the power of ethics, which is, of course, an internal power. There are no ethics police. It’s not like law where you can enforce from the outside, ethics always comes from within. And that’s why logic and reason are so important. Because both are universal in their final judgments. And so when we arrive at a decision that I ought to do X, Y, or Z, I ought to escape or I ought not to escape. If I accept that ought, then I have to, I am obliged to pursue it. Otherwise, I am being contradictory. I’m being untruthful with myself, and I’m being untruthful with others. So, as I say, I think that what I’ve been trying to do is really to present this perspective on ethics as objective and not subjective.

Stuart Shapiro
Right. And looking back, what are you most proud of if your time in front of the classroom at Bloustein?

Patrick Hill
Well, I’m not quite sure that I would want to answer the question as worded, but let me put it this way. I think what I’d like to be remembered for…

Stuart Shapiro
OK.

Patrick Hill
….would be that I have this deep faith in reason and the power of thinking. My favorite quotation, one of my favorite quotations is from the English writer, G.K. Chesterton. And in his little book called “The Ethics of Elfland”, he had this little phrase as the same which captured my imagination and remains with me throughout. And I read this many, many years ago. And it was this, he said, “There is a thought that stops thought, and that is the only thought that ought to be stopped.” There is this… he was actually (((((((fighting))))))) a contemporary advocacy for profound skepticism in the capacity of human beings to think and to work their way through to a moral life. And so he fought for this belief in the power of reason and thinking. And if I’m remembered by anything, I’d certainly be, I’d be happy if I was remembered by this.

Stuart Shapiro
Well, I think that’s quite likely, among both your colleagues and your students. Patrick, thank you for coming on today.

Patrick Hill
Thank you very much. My pleasure.Take care.

Stuart Shapiro
Also a big thank you to Amy Cobb and Karyn Olsen, our production team. We will see you next week with another talk from another expert from the Bloustein School, till then stay safe.