Comment: Autonomy and the Public-Private Distinction in Bioethics and Law

Susan H. Williams
Walter W. Foskett Professor of Law
Indiana University--Maurer School of Law

In American law school classrooms, we have a phenomenon that I expect you experience here in Italy as well. The professor asks a question and the student attempts to avoid answering the question by challenging or seeking to shift the underlying assumptions the teacher has so carefully crafted to frame the issue. We call this “fighting the hypothetical,” and I am afraid that that is what I am about to do.

The current debates in biolaw, in Cinzia’s elegant description of them, rest on a particular assumption that I would like to highlight and examine. The assumption is that there is a fundamental difference between private and public systems of ordering and that this difference is, and should be, the salient feature in organizing our thinking about the intervention of law in this social arena. This assumption is, of course, a basic part of the liberal legal tradition, but it is an assumption that has been challenged from a variety of perspectives, including Marxist, communitarian, and feminist approaches. I will focus on the feminist criticism. While I find the critique persuasive, and I hope you will as well, I do not mean to suggest that an appropriate analysis would simply ignore the differences between exercises of power, some of which promote autonomy and some of which frustrate it. The lesson we should take from the critique is not that power, whether public or private, is an undifferentiated whole, but rather that we must be more precise in defining what are the relevant moral differences between exercises of power. Our approach must be more sensitive to the presence or absence of these moral qualities regardless of the nominally public or private identity of the persons who wield that power.

In this comment, I will offer some preliminary thoughts about this project of reconceiving the significance of public and private. First, I will trace the importance of this distinction in the clear and concise description of biolaw in Cinzia’s paper. Then I will outline the feminist critique, with particular attention to its applications in bioethical/legal issues. Finally, I will suggest that the concerns about individual autonomy that underlie the traditional public-private distinction, while legitimate, are better served by directing our attention to the ways in which power facilitates or frustrates autonomy. In particular, the focus of this analysis should be on the effects of power on a more relational and less individualistic model of autonomy, rather than on the public or private nature of the person or institution who wields that power. There are important, morally significant issues in the exercise and structure of power, and they do indeed concern individual autonomy, but the focus on the public or private nature of power and the adherence to an individualistic model of autonomy obscure rather than illuminate these issues.

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