Workshop on Social Responsibility in Bioethics

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Workshop on Social Responsibility in Bioethics

A comment on Prof. Oscar J. Martinez’s paper on the Christian Point of View

David Heyd

This is not “a Jewish comment” on the Christian perspective on the subject of this conference but rather an attempt to articulate further one Christian theme or to be more precise – a Roman Catholic one. I will come at the end of the comment to a few points relating to the Jewish interpretation of that theme.

I believe that Prof. Martinez’s interesting paper revolves around two main distinctions: that between the national (domestic) and the global and that between the legal and the moral. I agree with him that these distinctions reflect the fundamental issues of responsibility in bioethics today. In the not too distant past, medical services were not legally regulated and no right to health services was recognized. Furthermore, in the pre-globalization era, health was a good that was promoted at most on the national level (like in the beginning of national health insurance, state investment in hospitals and national defence against contagious disease). But as Prof. Martinez helpfully shows, since 1948, UN documents take a more globalized approach to the responsibility for health, or at least for minimal health to every human individual. The health of individuals is not anymore a private business restricted to doctor-patient relationship, but the responsibility of the state to its citizens and in some cases to citizens of other countries. But does not the responsibility of the state apply primarily and with clear priority to its own citizens rather than to faraway people? And if, as article 17 of the document of the International Bioethics Committee acknowledges, medical responsibility to distant people cannot be legallyenforced, how can we hope to fulfill this responsibility?

I was much attracted to Prof. Martinez’s choice to take as the starting point of the Christian discussion of the subject of responsibility the New Testament parable of the Good Samaritan – both because it is indeed so formative in the Christian tradition but also because I have myself done quite a lot of research on it.

I want to focus on the last sentence of the parable, in which after bringing the injured man to the inn and taking care of his needs, the Samaritan tells the innkeeper: “Look after him, and on my way back I will make good any extra expenses you have”. The Latin “quodcumque supererogaveris” means literally “whatever you pay extra”, or “more than is due”. This little phrase has made a glorious theological career when already the Church Fathers have introduced the technical concept of supererogation as referring to actions that go beyond the call of duty. Thus, St. Ambrose and St. Augustine draw the distinction between praecepta and consilia, commandments and recommendations and connect this distinction to other stories in the New Testament in which Jesus is said to have implied that distinction. Thus, poverty, chastity and absolute obedience (i.e. monastic life) became known as the three Evangelical Counsels. Those who decently earn what they possess have satisfied the commandment, but those who give all they have to the poor do more than they have to do. They act supererogatorily. The same applies to chastity and obedience. They lie beyond duty.

Thomas Aquinas gave the idea of supererogation a full systematic theory and expanded its scope beyond the three Evangelical Counsels of poverty, chastity and obedience. Works of supererogation are those which it is virtuous to do but not absolutely required. They express the difference between the Old Law (of duty) and the New Law (of love). They introduce the element of freedom (licentia): acts of particular generosity are voluntay, a matter of individual discretion. They aim at perfection which can be achieved only by transcending the requirements of the law. And they deserve extra merit which is most typically manifested in the lives of saints whose life is consistently guided by supererogatory behaviour. Thus, during the 13th century the idea of supererogation became institutionalized: the extra merit of saints, of actions which are “extra” from the religious point of view, is kept in the so called Spiritual Treasury of the Church and dispensed by the Church for compensating those human beings who failed to reach the necessary required level, thus enabling them to attain eternal life.

But this institutionalization, with the system of Indulgences, which since the Crusades has become commercialized and had a corrupting effect,led to the downfall of the whole idea of supererogation during the Reformation. Luther, Calvin and the Anglican Church – all abhorred it. It has lost its central role in the Church teachings in the last few centuries.

But strangely enough, it has been revived by secular philosophy. In 1958 the Oxford philosopher James Urmson published an article “On Saints and Heroes” and used the concept of supererogation as a fourth category, beyond that of the obligatory the permitted and the forbidden: acts that are morally good but not obligatory. Since then, supererogation has become a never-ending subject of sophisticated debate in moral theory. Like Protestant theology, there are opponents to the very idea of morally valuable actions which are not required. But I believe that the concept of supererogation is important and useful both analytically and morally.

Back to the old way to Jericho. I understand the parable of the Good Samaritan as describing three alternative ways of passersby to respond when crossing a wounded man lying in their way. They can ignore him, as the Priest and the Levite did. They can help him (put a bandage on his wounds and carry him to the nearest inn). And they can in addition to such help, come on the next day and visit him, paying for all the costs of his treatment and accommodation. The Priest and the Levite behave within the requirements of the law. Except for few legal systems today, most countries do not require by law to help a person in need or distress. The person lending help to the victim and leading him to a safe place acts in the way that a moral person is expected to act. They do more than is legally required of them. But the Good Samaritan “supererogaverit”, that is pays out more than could be ever expected even of a morally decent person. He goes out of his way, literally and metaphorically, in his love for the neighbour, a total stranger.

Now, at last to the concrete subject of the conference! The provision of health has become a collective and highly regulated practice. It is no more the individual doctor committed by the Hippocratic Oath to give equal, and sometimes free, services to individual patients. The state is typically an entity which can only act by law and is bound by special responsibility to its citizens. Helping other countries in need cannot be legally regulated because even if there is international law regarding war or respect for sovereignty, there is no parallel law regarding the global distribution of medical resources. Allocating state money for international aid is at most a moral responsibility, usually motivated by the concern of individual citizens in a well off country for the afflicted citizens of a poor country. But with so many citizens lacking access to decent medical treatment in their own country, it would be contrary to the idea of state responsibility not to give them priority before assisting foreign countries.

But although I find it odd to ascribe supererogatory action to states, it is definitely the case that charity institutions act by definition in a supererogatory way. They do what states fail to do. They work on the basis of voluntary donations which are not strictly required, even on the moral level. And more typically, they work through individuals who do much more than could be morally expected of amorally decent individual. They often risk their lives, give up the pleasures of comfortable existence, and devote years of their life to faraway people. Mother Theresa is a proverbial example. Doctors without Borders is another institution which illustrates the idea of going beyond the call of duty. And as Prof. Martinez mentions, the Church is the largest non-governmental institution providing health services in the whole world. No wonder that the same word “charity” refers to both institutions and an individual virtue which lies beyond justice and rights. My main claim in support of supererogation is that exactly because our conceptions of justice in the distribution of health services on the international level are so controversial and problematic, supererogatory behaviour becomes both necessary and noble.

Finally, as promised, a word about the Jewish tradition on those matters. Indeed, like Protestantism, Jewish religious thought does not have a parallel concept of Evangelical Counsels. Religious morality is based strictly on justice and hence on duties and commandments. However, these include the commandment of “love thy neighbour as thyself” which goes back to the Torah and hence much earlier than Christianity. On the other hand, the Christian interpretation of that commandment is open, has no limits, and hence lends itself to supererogatory generosity, like that of the Good Samaritan. It also universalizes the very concept of “neighbour” to any human being as such. But despite the image of the strictness of adherence to the law, there is the concept of ex gratia (“lifnim mi-shurat ha-din”), namely doing something although not required by law. Furthermore, there is a well-known saying: “Jerusalem was destroyed [two thousand years ago] only because justice was implemented purely according to strict law”.