Minding the epistemic gap: Uncertain moral status,precautionary practical ethics and the problem of reasoning from the problem of other minds

Abstract

The bioethical literature demonstrates both substantive contest over the moral status of entities such as human embryos, and approaches that aim to find morally sound prescriptions in light of fundamental disagreement and uncertainty about identification of their moral status. Amongst such latter approaches, we find Shaun Pattinson's moral precautionary thesis, for which he provides a renewed defence in his recent book Law at the Frontiers of Biomedicine. Pattinson's overarching moral theory centres on the rights of moral agents. In relation to the question of that theory's application, the moral precautionary thesis addresses how, and with what degree of certainty, one moral agent may identify or recognise another. Pattinson roots his precautionary thesis in the problem of other minds. In this article, I argue that that is a mistaken starting point when held against the consequent epistemic claims that Pattinson makes. Furthermore, in examining Pattinson's reasoning, including against earlier objections that have been levelled, I argue that he generates additional problems for accepting the cogency of his thesis.

Introduction

This article responds to a practically consequential but theoretically problematic plank of reasoning in Shaun Pattinson's recent monograph: Law at the Frontiers of Biomedicine: Creating, Enhancing and Extending Human Life. ¹ That book, reflective of Pattinson's wider scholarly contributions, is a fascinating, engaging and insightful analysis. It combines his core academic discipline of law with his interests in biomedical innovation, social policy and applied moral theory. The book is to be recommended not just for what it covers, but also how it presents its analysis. It provides lucid explanations of complex points of law and moral theory, advances in biosciences and innovation, and contextualised policy arenas; both through more ‘standard’ academic discourse and through critical presentation of and engagement with imagined processes of legal adjudication and legislative drafting.

In the book's front matter, Pattinson characterises its focus against two questions:

How should judges and legislators address challenges arising at the frontiers of biomedicine? What if it became possible to edit the DNA of embryos for enhanced traits, gestate a fetus in an artificial womb, self-modify brain implants to provide new skills or bring a frozen human back to life? ^a

As these questions indicate, the book has tremendous breadth across many important and morally challenging controversies in bioethics. Pattinson aims to demonstrate the normative demands and practical application of law and policy that integrate and rest upon Gewirthian moral theory, ² showing what that would look like with sensitivity to different applied contexts.

In what follows, I pick up a pivotal thesis from within Pattinson's work: his, and his and Deryck Beyleveld's, framing of precautionary moral reasoning in identifying who or what to treat as moral agents. This is a question that we have debated previously.^3–5 In Law at the Frontiers of Biomedicine, Pattinson refers to and dismisses criticisms that I, and Søren Holm and I, have advanced. I argue that he does so problematically. His precautionary thesis is given as a response to the problem of other minds. However, by pitching it against that epistemic framing, Pattinson's consequent moral prescriptions are problematic for the knowledge claims that they require. In the next section of the article I summarise Pattinson's position regarding moral agents, the problem of other minds, and how he sets up his precautionary thesis. Following that, I explain why his proposed response is flawed as a matter of coherent moral reasoning.

Moral agents, the problem of other minds and Pattinson's precautionary thesis

In accordance with a modified account of Gewirth's principle of generic consistency, which I briefly explain in the next paragraph, the fundamental moral concerns within Pattinson's analysis are moral agents, the rights that arise as a consequence of a being's possessing moral agency, and what it means to exercise and honour that agency within a morally respectful, organised community of agents. ^b Moral agency is characterised as something that is possessed by beings with the capacity to identify and act on moral reasons. As such, a moral agent is not found by reference to a being's membership of (say) the human species: there may be humans that are not moral agents; and there may be moral agents that are not human.

Pattinson explicates the Gewirthian framework through a series of steps that agents must accept, so the argument goes, on pain of consistency with their own recognition of their own moral agency. These follow a progression of premises that are advanced as stipulations based in reasoned logic, and which are clustered into three stages. ^c Pattinson summarises the overall position as follows:

Stage I establishes that I (any agent) ought to defend and pursue my possession of what I always need to act at all or with general chances of success: the ‘generic needs of agency’. Stage II establishes that this commits me to claiming rights to the generic needs: the ‘generic rights’. Stage III establishes that I must accept that all agents have the generic rights: the [principle of generic consistency]. ^d

In all, the stages cover 11 premises, showing that an agent must recognise, through acknowledgment of its agency, the rights that it must, in logic, hold and the existence, in logic, of those rights for all other agents.

Further detail concerning the overarching moral theory, and the question of whether it should be accepted, are by the bye for what follows. Suffice to say for the purposes of this essay that the principle of generic consistency allows the theoretical identification of ‘agents’ as special units of moral concern, and underpins the moral obligations of agents as rights-holders through the principle of generic consistency. My concern in what follows, however, is the practical identification of agents: a necessary function in applying the theory.

So my focus in this article is not on the strengths (or otherwise) of (modified) Gewirthian moral theory. Rather, it is the practical question, as explored by Pattinson, of identifying who/what is or may be a moral agent. This matters for Pattinson's analysis because his book brings moral judgement, and moral prescriptions on what we may or must (not) do in relation to entities that are not obviously agents, but about which there is radical bioethical contention as regards moral status (for instance, human embryos).

As per my phrasing above, within Pattinson's theorising, there are humans that might not be agents, rather than are not agents. And there are non-humans that may be moral agents. But in explaining this, Pattinson does not just focus on inferences drawn from seeming agency or humility about inferences that can be drawn from observing the world as it seems to be. Instead, he presents the question of uncertain identification of any and all possible agents against a much deeper, metaphysical and epistemic challenge: the philosophical problem of other minds. To explain that problem, he presents a hypothetical agent, Orion, who aims to act towards other agents in accordance with the demands of morality:

Orion first needs to identify those who are agents. Since he has direct access to his own mind, he can be certain of his own possession of the reflective purposivity constitutive of agency. But he does not have such direct access to the mind of any other. Even if it were possible to connect another's brain to his own and this meant that he had experiences that appeared to him to be internal access to that other's thoughts, he would still lack the purposive control over the direction of those thoughts required to confirm agency. If he had such purposive control, then he would have to regard those thoughts as his own, rather than those of another. There is, in other words, an epistemic gap between his knowledge of his own mind and his knowledge of another's mind. ^e

In relation to this problem, Pattinson addresses his concerns, as it were, in two directions. The ‘unverifiable metaphysical assumptions’ ^f captured in the problem of other minds mean that, in one direction, Orion cannot know that something that seems to him to exhibit the behaviours of a moral agent actually is an agent. Nevertheless, Pattinson argues that Orion is morally bound to treat such an ‘agent-behaver’ ^g as if it is an agent. This is because, the argument goes, of the probability of its being an agent given what it seems to Orion to be, and the great moral offence of not respecting its rights should it be an agent. In the other direction, Pattinson uses the example of a newborn baby, which ‘does not behave as if he is an agent’. ^h This sort of ‘partial agent behaver’ ⁱ may not be an agent, but again Orion cannot know. So here Pattinson advocates for the application of ‘moral precaution’. ^j Such precaution demands, all things equal, respect for the baby's rights as a moral agent to avoid the moral offence of not respecting their rights should they be an agent.

So all things equal, the prescriptions of Pattinson's morality are as follows. Insofar as another entity seems as if (behaves as if) it is an agent, we infer a high probability of its being that and act towards it as if we know with certainty that an agent is indeed what it is. Insofar as it is not obviously a moral agent, but might be one, we should not risk infringing our moral obligations, and thus ought to treat it as if it is an agent. To do this, Pattinson stipulates markers of probability; including things such as being a member of the human species, albeit without otherwise exhibiting agent-like behaviour.

Where all things are not equal, Pattinson lends a further prescription under the ‘criterion of avoidance of more probable harm’. ^k This means that:

A single-variable conflict between respecting a will-right of an agent-behaver… and respecting the equivalent interest right of a partial agent-behaver… is to be dealt with in the way most likely to comply with the [principle of generic consistency] given the epistemic gap. ^l

Notwithstanding his express acknowledgment of this branch of argument being underwritten by (to quote his phrase again) ‘unverifiable metaphysical assumptions’, Pattinson identifies prescriptively where greater likelihood lies. He says:

[T]he life of an embryo counts for less than the life of a fetus, the life of a fetus counts for less than that of a newborn at full-term and a newborn's life counts for less than the life of a child who has reached the stage of being capable of being treated like an agent. ^m

There, then, we have the rationale for, and the practical consequences of, the precautionary moral reasoning within Pattinson's argument. I will go on now to explain why, on its own terms, it cannot help us.

The problem of taking known unknowns seriously

As indicated above, I have commented on Pattinson's precautionary moral reasoning before; both with Søren Holm and independently. Within Law at the Frontiers of Biomedicine, in the pages from which the quoted text in the previous section is drawn, Pattinson notes and dismisses my critique. He writes that while I challenge precautionary reasoning as a response to the problem of other minds, ‘the problem of other minds is not a fictional construct: it is the logical implication of the distinction between “I” and “not I”’. ⁿ As that is the extent of Pattinson's substantive response to me at that juncture of the book, I feel bound to say that I did not suggest that the problem of other minds was a ‘fictional construct’. The point that I sought to make, and with luck present more clearly here, is that Pattinson's response to the problem does not work given the logic of embracing the ‘epistemic gap’ entailed in the precepts of the problem of other minds.

To be clear, without worrying about the problem of other minds, precautionary reasoning may be a cogent approach to take in forms of practical ethics that relate special concern to moral agents that are defined by capacity to reason (as opposed, e.g., to a status based on species membership). For instance, we find moral precaution in all but name in John Harris's approach to identifying ‘persons’. ⁶ But precautionary reasoning is not a cogent response if we submit to and aim to work from the epistemological starting point of the problem of other minds. The same ‘epistemic gap’ between observing an ‘agent-behaver’ and knowing that it is an ‘agent’ also sits between observing and knowing what, if any, behaviours, characteristics or other observable phenomena give rise to more or less probable agency at all where something does not exhibit itself as an agent. The unknowability that we take of the true existence of other agents is bound up in the same epistemological tangle that gives rise to the unknowability of indicators of possible or more or less probable agency in other beings/things.

So I take no issue with the logic of the problem of other minds. Rather, I take issue with the logic of Pattinson purporting at once to submit to its epistemological boundary-drawing in setting up the practical problem of identifying agents in the first place, and then ignoring its epistemological boundary-drawing in generating practical claims about more or less likely indicators of agency as a response to the problem. I accordingly challenge the basis of claims that Pattinson makes, which if convincing must only be so for drawing on some alternative basis, such as intuitive plausibility, rather than reasoned logic that follows from where he sets in train his philosophical analysis.

Later in the book, Pattinson advances at fuller length a defence of precautionary reasoning, in this instance responding to what I wrote with Holm. Pattinson says:

A potential human embryo or fetus is a partial agent-behaver with a feasible developmental pathway or trajectory for becoming an agent-behaver. It is, in this sense, a potential agent-behaver. But its increased status (over a partial agent-behaver that is equivalent save for the absence of such a developmental trajectory) is not due to treating its potentiality as actuality. It is due to its comparatively greater closeness to being an agent-behaver. For this reason, Holm and Coggon display misunderstanding when they criticise this precautionary thesis on the basis that ‘it is not clear that general potential to become an agent has any bearing on something's being an agent’. It is true that potentially being X is not equivalent to being X, whether X is ‘being an agent’ or ‘being an agent-behaver’. But the claim made is very different: it is that potential to become an agent-behaver – in the sense of a feasible developmental pathway to becoming an agent-behaver in the future – has a bearing on closeness to being an agent-behaver. A germinating acorn is not an oak tree; but it is closer to being an oak tree than a tomato seed is to being an oak tree. ^o

The elision that Pattinson presents as mistakenly being made by Holm and me – that is, between potential agency and agency – is not the issue. What is in issue is that the question of ‘what has a bearing on closeness to being an agent-behaver’ is not, other than as an ‘unverifiable metaphysical assumption’, something that can be evidenced. Against his own epistemic framing, and his concept of agents being defined by rational capacities rather than physical (less still biological) essence, Pattinson is, in the above passage, just making assertions. If precautionary reasoning were based on the idea that we do well to hedge our moral bets on (something like) common sense understandings of what the world is probably like, that is fine. But this is not how he sets up his approach. He instead pitches the argument against an epistemological framing whose implications he then needs (on pain of consistency, at least) to keep in play. He advocates for precaution directed by solid (self-evident?) claims of what constitutes ‘closesness’ having argued from a position whose logic holds that we cannot rest on face value, so cannot know how closeness could possibly be established or inferred, or indeed which way precaution would take us (say when trying to honour the interest rights of an agent that is radically distinct to an agent like us). It is also an idea of ‘closeness’ that demands an apparently arbitrary means of identifying which signals of proximity should prompt the application of precaution (i.e., ‘closeness’ across different and hypothetical points in time as opposed, say, to ‘closeness’ in terms of current physical form). Let us explore all this by looking further at the assertion and Pattinson's oak tree example, which I have italicised in the quoted text above.

First, take the claim that potentiality makes a germinating acorn closer to being an oak tree than a tomato seed is to being an oak tree. If we accept that as explaining something, we might be given pause by considering that this potentiality brings the strange outcome of also making a germinating acorn closer to being an oak tree than an oak tree is to being a germinating acorn. It is more like the thing than the thing is like it (or closer to being the thing than thing is to being it). A (contingent and distinct) possible future state is simply being deemed to bear on the (actual) present. The tomato seed and the oak tree, meanwhile, are equally close never to becoming a germinating acorn, yet with that equivalence (closeness) counting for nothing. But more problematically, as a matter of analysis, Pattinson holds that the acorn and the oak tree are distinct things, practically and conceptually (it is not an oak tree we are told; not it does not seem to be an oak tree). What ‘closeness’ should mean at all once we have and know we have distinct things is unclear. We do not need to reason further because we already know they are distinct. But the whole point beneath all this is not about conceptual unclarity within the theory; it is about epistemic uncertainty (‘unverifiable metaphysical assumptions’) in the theory's application. Following the analogy, we would be acting, in our applied ethics, whilst knowing that the ‘partial agent behaver’ is not an agent. And it would not be an exercise in addressing an epistemic gap at all.

So secondly, to come at the same point from a different angle, note how the focus on potentiality may seem self-evident, or otherwise have intuitive appeal, because of the connection between two physical things across time (acorn and oak tree; human embryo and human adult). Even where conceptually they are distinct, across time, the first at some point becomes the second. But consider just focusing in the moment, and asking which is closer between a germinating acorn and an oak tree, or a full-fledged ash tree and an oak tree? It almost sounds like a facetious question, but the point is that the arguments simply can go either way, with it anyway remaining the case, per how the example is presented, that neither actually is an oak tree.

And within the analysis, the example thus undoes itself. For the analogy to have some purchase, the germinating acorn should be designated a ‘partial oak tree behaver’, and the oak tree an ‘oak tree behaver’. But once we accept that, for the purposes of the reasoning, we cannot know that what seems to be an oak tree is, or is more likely, an oak tree at all. The analogy's operating function is to deny epistemic uncertainty, rather than embrace it. If (for it to be a useful analogy) we can say we know that an oak tree is an oak tree like we ‘know’ that an apparent agent is an agent, we do not go anywhere near the problem of other minds. But that is not how the argument is set up. So nothing helpfully follows in terms of keeping a check through assertions of ‘closeness’ to what we might be dealing with morally. The nature of the epistemic uncertainty that has brought us to the precautionary thesis (if the analogy is to work) means that we have to say that, because of the epistemic gap, in fact (and unknowable to us) both the germinating acorn and the tomato might be oak trees; and indeed what is deemed to be an oak tree might not be one after all. And the example is then just confusing because we are furnishing our understanding with an analogy that speaks to something that is defined simply by its physical form and attributes.

So thirdly, that is salient because, as noted, Pattinson has a concept of agents that is not defined (other than contingently) by reference to physical manifestation or form. We do not just have disruptive metaphysics; we also have unhelpful physics here. Within his theory, agency is a reflection of deliberative capacity. It is not defined by reference to any particular physical form or even being. So if we are to embrace the epistemic uncertainty that underwrites the unknowability of other minds, it is not possible for us sensibly to follow Pattinson in looking for partial physical commonalities with the things that seem sometimes to exhibit themselves as agents, rather than cut to the chase and just serve our understanding (if this is the way to go about it) with, for instance, intuitively indicative features of agency.

Conclusions

My critique in this article is not a denial of the problem of other minds. Nor does it challenge the view that where something elicits no or limited signs of being an agent in a Gewirthian sense it does not follow that it is not an agent in that sense. Nor is it a denial of the in-principle point that morally, if we accept a theory such as Gewirth's, then all things equal it is better to treat a possible agent as if it is an agent because that is the better hedging of moral bets in the face of epistemic uncertainty. Rather, my critique holds that where Pattinson anchors the practical reasoning in his book (and wider work) to the metaphysics and epistemological grounding of the problem of other minds, he forecloses the series of practical claims that he seeks to rely on as regards assertions of probability or feasibility or closeness. As a starting point for his reasoning, the problem of other minds brings with it a much wider epistemic gap than his precautionary claims about probability, feasibility and closeness permit. Only on the other side of that gap could we knowingly find indicators of lesser or greater probabilities of agency in whatever we observe. So the precautionary thesis in some form may work as a prescription against uncertainty about who or what matters in practical ethics. But it is not a solution to, or even something that can be built on, the problem of other minds.