Theoretical Medicine and Bioethics (2007) 28:1–30
DOI 10.1007/s11017-007-9027-z
Springer 2007
JOHN K. DAVIS
INTUITION AND THE JUNCTURES OF JUDGMENT
IN DECISION PROCEDURES FOR CLINICAL ETHICS
ABSTRACT. Moral decision procedures such as principlism or casuistry require
intuition at certain junctures, as when a principle seems indeterminate, or principles
conflict, or we wonder which paradigm case is most relevantly similar to the instant
case. However, intuitions are widely thought to lack epistemic justification, and
many ethicists urge that such decision procedures dispense with intuition in favor of
forms of reasoning that provide discursive justification. I argue that discursive justification does not eliminate or minimize the need for intuition, or constrain our
intuitions. However, this is not a problem, for intuitions can be justified in easy or
obvious cases, and decision procedures should be understood as heuristic devices for
reaching judgments about harder cases that approximate the justified intuitions we
would have about cases under ideal conditions, where hard cases become easy.
Similarly, the forms of reasoning which provide discursive justification help decision
procedures perform this heuristic function not by avoiding intuition, but by making
such heuristics more accurate. Nonetheless, it is possible to demand too much justification; many clinical ethicists lack the time and philosophical training to reach the
more elaborate levels of discursive justification. We should keep moral decision
procedures simple and user-friendly so that they will provide what justification can
be achieved under clinical conditions, rather than trying to maximize our epistemic
justification out of an overstated concern about intuition.
KEY WORDS: casuistry, decision procedure, discursive justification, heuristic,
intuition, judgment, moral epistemology, moral theory, principles, principlism
INTRODUCTION
How should clinical ethicists decide particular moral cases? We could
dispense with principles or paradigm cases and simply judge a case
using intuition alone. In easy or obvious cases that works well
enough, but in less obvious cases we sometimes we turn to moral
decision procedures for guidance. Many of these procedures involve
applying something to the case; principlism, the ‘‘common morality’’
method, the four-topics method, and specificationism all apply
principles or other norms, while casuistry compares the case with
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various paradigm cases. Procedures that apply principles or compare
paradigm cases require intuition at what I will call the ‘‘junctures of
judgment’’: when it is not clear whether a principle or paradigm case
applies to the case being decided, when the principle is indeterminate
and it is not clear how it applies, when more than one principle seems
to apply but they mandate conflicting results, or when we judge
which paradigm case is most relevantly similar to the instant case.
Intuition is frequently decisive at the junctures of judgment; that is,
our conclusion about the case may vary dramatically with our intuitions about how the principles or paradigms relate to it. This worries
many ethicists, for reasonable moral judges often have different
intuitions, reaching different conclusions about the same case using
the same decision procedure, but cannot justify their respective
intuitions beyond simply asserting to one another that it seems so to
me. This gives rise to an apparent dilemma:
• If moral intuitions lack sufficient epistemic justification, then
moral decision procedures that use principles or paradigm cases are
to that extent unsound.
• If intuitions are sufficiently justified, then principles and paradigm
cases are unnecessary, for we can judge cases using intuition alone.
In other words, given that intuitions are decisive in decision procedures, if our intuitions can be justified, then it is not clear how
decision procedures improve on using intuition alone to decide cases.
Conversely, if our intuitions cannot be justified, then it is not clear
how decision procedures lead to justified moral beliefs about cases.
In recent years many ethicists have defended principlism, casuistry, specificationism, or some other decision procedure on the
grounds that it does improve on using intuition, either by eliminating
the need for intuition or by minimizing and constraining that need
(thus blunting the first horn of the dilemma). I call this the
‘‘domestication strategy’’; the most familiar version of it involves
discursive justification. The proposal is that when we reach one of the
junctures of judgment, we need not simply assert an intuition and say
‘‘It seems so to me,’’ but can instead offer reasons for our conclusion
about, for example, why we should resolve a conflict between two
principles in a particular case in a given way. Such reasons typically
consist of philosophical arguments and background theories about
the point of the various principles or the moral significance of various
features of the case, or of arguments that this way of resolving that
INTUITION AND THE JUNCTURES OF JUDGMENT
3
conflict achieves more coherence among our total set of beliefs
(reflective equilibrium is often invoked).
I believe that the widespread worry about intuition in moral
decision procedures—and the drive to avoid it through discursive
justification and similar means—is misplaced. Unlike other writers on
these issues, I will not advocate a particular moral decision procedure
or recommend altering any of them. I believe all the major ones
already work reasonably well. Instead, I will propose a different
understanding of how intuition works in moral decision procedures,
and argue for the following claims:
A. Discursive justification and other versions of the domestication
strategy do not eliminate, minimize, or otherwise constrain the
need for intuition.
B. However, worries about intuition are overstated; in easy cases we
have justified intuitions.
C. In harder cases, decision procedures improve on intuition, not by
eliminating or minimizing it, but by providing indirect evidence of
what our intuition would be were we to see the case under better
epistemic conditions where that case is easy and the intuition is be
justified. In short, decision procedures function as heuristic devices for helping us reach conclusions that approximate the
intuitions we would reach about cases under ideal epistemic
conditions—our ‘‘ideal intuitions.’’
D. When decision procedures are simpler, they provide less guidance,
requiring us to rely in part on unaided intuition. When they are
more elaborate, they provide more guidance for our intuition.
Hence, those who distrust intuition in hard cases propose discursive justification and other elaborations to our decision procedures. This makes sense when formulating policies for classes of
cases, or in academic discussion.
E. However, under clinical conditions, a simpler decision procedure
is more epistemically effective even if the judgments it produces
are individually less epistemically justified, for given that we
cannot avoid acting, we are more knowledgeable overall if our
beliefs in all our cases are somewhat justified, than if our moral
beliefs about a few cases are very well justified but we simply
shoot from the hip in all the others. Moral knowledge differs from
other kinds of knowledge in this respect: when I do not need to act
on what I know, I can avoid mistake by avowing ignorance on
topics where I lack well justified beliefs, but when (as in clinical
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ethics) I need to act whether I know anything or not, I cannot
avoid mistaken action simply by avoiding mistaken belief.
F. Thus, discursive justification is entirely appropriate in some circumstances, but seeking it is often epistemically counterproductive at the clinical level, where less is more.
G. Once we understand how principles and paradigm cases are derived, we can clarify the truth-conditions for intuitions about
where and how indeterminate principles apply, which principle is
more weighty when they conflict, which case description captures
its morally relevant features, and which paradigm case is relevant
similar to the instant case.
THE PROBLEMATIC ROLE OF INTUITION IN MORAL
DECISION PROCEDURES
In this section, I will explain what moral decision procedures are,
show where they require intuition, define ‘‘intuition,’’ and explain
why intuitions are often considered epistemically unjustified.
Moral theories usually concern act-types, that is, kinds of actions
or cases. Act-types can be very general, such as ‘‘abortion,’’ or very
specific, such as ‘‘aborting an anencephalic to avoid a C-section
which would otherwise be contraindicated, where the parents cannot
pay for either procedure and the abortion is less expensive, etc.’’
Bioethicists deal in act-types when they deliberate about classes of
cases—for example, when formulating policies or laws.
However, when bioethicists consider particular, actual cases, they
are usually dealing in act-tokens. An act-token is a particular instance
of an act-type; for example, a particular abortion of a particular
anencephalic to avoid a C-section in a particular woman.1 Act-tokens
are actual or possible acts with regard to some actual situation (this
actual woman, who may or may not abort this actual fetus).2 I will
sometimes refer to act-tokens as cases, and the case being decided as
the instant case.
For our purposes, the significance of this distinction is that acttokens must usually be decided in a relatively short period of time by
nonphilosophers.3 Often the right thing to do in such cases is obvious, and can be determined without using moral theory or principles,
but sometimes we need some guidance. One can use a moral theory
(understood as an explanatory model of our best moral judgments,
usually in the form of an organized set of principles) to decide
INTUITION AND THE JUNCTURES OF JUDGMENT
5
whether a given act-token is morally required or prohibited, but
moral theories are notoriously ungainly for decisions in real-time by
nonspecialists. Most clinical ethicists prefer to use simpler heuristic
devices I call moral decision procedures. By ‘‘decision procedure’’ I
mean a method or process4 for reaching decisions about act-tokens5
which increases the odds that one’s decision will be correct in whatever way moral beliefs can be correct. (Sometimes people use ‘‘decision procedure’’ to refer to an algorithmic process that resolves all
disagreement and requires no intuition; I think this is impossible, and
mean the term more broadly.) Popular decision procedures include
principlism, the four-topics method,6 casuistry, specification, ‘‘common morality’’ theory,7 narrative ethics, particularist approaches,
and others.8
I will focus on decision procedures that use principles (using this
term broadly to include all moral norms) and/or paradigm cases.
Principlism9 and the common morality approach use small sets of
simple principles, while the four-topics method uses four small sets of
specific principles. Casuistry works by seeking analogies between the
instant case and paradigm cases where we feel very confident of what
should be done, together with maxims (a kind of small-scale, very
specific principle). I will not focus on decision procedures which do
not involve principles or paradigm cases, not because I do not recognize their importance, but only because they do not seem to face
the issues I want to address. Although my concerns also arise when
we apply moral theories to act-types (or act-tokens, for that matter),
the proper response to those concerns is different for types and
tokens, as I will explain later.
Applying principles and comparing paradigm cases requires
intuition. What I call ‘‘intuition’’ goes by several names: ‘‘judgment,’’
‘‘practical wisdom’’ or phronesis, and ‘‘perception’’ are the most
common. In epistemology, an intuition is a belief that is epistemically
justified without being inferred from anything else, nor evident
through the five senses, introspection, memory, or testimony, and
which is self-evident, meaning that if you understand the content of
the belief, you are justified in believing it, and if you believe it on the
basis of that understanding, you know it to be true.
Intuitionism is often dismissed because it is mistakenly thought to
require implausibly strong claims: intuitions are infallible and indefeasibly justified (if you have an intuition, you cannot be wrong
and you know you cannot be wrong), and we know moral truths
intuitively using a special extrasensory faculty for detecting
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nonnatural properties. However, almost no moral intuitions are that
certain, and we cannot account for such a strange faculty or its
associated properties within natural science. Fortunately, modern
intuitionists are not committed to these claims. Robert Audi, for
example, holds that moral intuitions can be wrong, that we can be
mistaken about whether they are justified, that we need not know
they are self-evident in order for them to be self-evident, that
although they can be known noninferentially there may be some
intuitions whose content can be also be inferred, and that we
apprehend the content of an intuition using our general capacity for
reflection and reasoning, rather than a special faculty for sensing
weird nonnatural properties.10 My discussion is premised on this
weaker view of intuitions.
Let us say that a moral intuition is a belief about some moral issue
that is not inferred from anything else, nor acquired through the five
senses, introspection, memory, or testimony, and whose alleged justification is that it seems true to the person who has it, and that moral
intuition is the ability to acquire moral beliefs justified in that way.11
Philosophers are accustomed to speaking of intuition a) in connection
with our perception of moral principles, as when Ross says we
intuitively discern the prima facie duties, and b) in connection with
deciding what to do about a case, as when we reach what Rawls
called ‘‘considered moral judgments’’ about cases. However, I am
primarily concerned with the third way decision procedures use
intuition: c) to ascertain, at what I will call the ‘‘junctures of judgment,’’ when and precisely how principles and paradigm cases apply
or become relevant.
The first juncture concerns indeterminacy. A principle is indeterminate with respect to a given case when the principle does not clearly
indicate how we must act in that case. For example, we may feel sure
we should respect a patient’s autonomy, but not be sure whether that
means respecting his current competent treatment refusal, or disregarding it on the grounds that we thereby best respect the way he has
determined his life overall and over time. We must then use intuition
or judgment to determine precisely when and how the principle
applies. The second juncture is by far the most familiar: we use
intuition to determine which principle to follow when they seem to
conflict—a moral dilemma. For example, we may have to balance our
duty to an existing patient with a duty to take in a new, more seriously ill patient at the cost of neglecting our current patient. The
usual way of putting things is that we use intuition to ‘‘balance’’ the
INTUITION AND THE JUNCTURES OF JUDGMENT
7
apparently conflicting principles and see which has more ‘‘weight’’ in
the case.12 Third, whether and how a principle applies can vary with
how a case is described and understood. A case can be described in
many ways, and some case descriptions have different moral implications than others. For example, when describing a case, we decide
whether it is relevant that the dying patient’s family has neglected her
for the last thirty years while her lover has stood by her, and hence
whether it is a case of family guilt and conflict over end-of-life care,
or a case of how best to respect her precedent autonomy. This too
requires intuition. The fourth juncture arises for casuistry, where we
judge whether the instant case is sufficiently similar to some paradigm
case to require being handled in the same way, and whether the
instant case is more like this paradigm case or that one. For example,
many of us find Dax Cowart’s case a paradigm example of why we
should respect a patient’s treatment refusal even when we think that
means choosing death against his long-range interests. However, it
takes judgment to ascertain whether Dax’s case is relevantly similar
to, say, the case of Terry Schiavo, where keeping her alive went
against her earlier wishes, but caused her no pain or suffering.
The fact that moral decision procedures are shot through with
intuition worries many ethicists, for there are several reasons to
question whether moral intuitions are epistemically justified. First, if
intuitions were reliable apprehensions of moral truth, we should have
the same intuitions more often than we do, yet we often disagree in
our moral judgments (and much more often than we do about most
empirical questions). Second, as noted earlier, it is hard to characterize intuition as a perceptual faculty similar to vision or hearing,
except metaphorically. Third, many ‘intuitions’ seem clearly wrongheaded, the product of unacknowledged biases or unsupported belief
systems. Some of these concerns are blunted—but not eliminated—once we conceive of intuitions as fallible and only defeasibly
justified, and as involving our general capacity for thinking rather
than an extrasensory faculty. However, the main objection is that
simply seeming true to the believer does not provide sufficient epistemic justification—in other words, our supposed intuitions are not
self-evident, and all we can do when someone fails to see things as we
do is to simply insist that they fail to see it. I see the fourth objection
as based on the other three, especially the first two: if we all had the
same intuitions, or could scientifically describe a reliable intuitive
faculty, we might be less troubled by the noninferential and
nonsensory nature of such justification—merely seeming true might
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be enough.13 Thus, even if we have genuine intuitions of moral truth,
we may not be able to tell with sufficient certainty when we have
them, and thus we are not justified in believing them.
It is tempting to say, ‘‘Fine, there is some weakness at the joints,
but the structure is solid, for so long as our principles and paradigms
are well-chosen and carefully applied, their epistemic justification
makes up for the lack of justification for our intuitions’’ (something
like a well-run civil service where corruption is kept to a workable
minimum). However, this response fails, for even at the junctures,
intuition is decisive. Consider a conflict of principles, where we must
either respect autonomy by honoring the request of an infant
patient’s parents or follow the principle of justice by denying their
request in order to conserve resources for other patients. The difference between judging the first or the second principle to have more
‘‘weight’’ may mean life or death to one or more patients. The same
can be said for intuitions involved in arguments about which features
of a case are morally relevant and properly included in the case
description, or whether the instant case is more similar to this paradigm case or that one. The looseness at the junctures leaves room for
two equally thoughtful deliberators to reach radically different conclusions about the same case. If intuitions sometimes differ, make
such a difference, and cannot be justified, then it is hard to see how
decision procedures can yield justified moral beliefs about act-tokens.
DISCURSIVE JUSTIFICATION
Many ethicists are troubled by this. Beauchamp and Childress worry
that ‘‘balancing’’ conflicting principles may be ‘‘too intuitive and
open-ended,’’14 that principles are ‘‘too indeterminate to eventuate in
judgments,’’ that without ‘‘tighter controls on permissible balancing
[there will be] too much room... for judgments that are unprincipled,’’
and that we need to ‘‘reduce intuition to an acceptable level.’’15
Henry Richardson claims that ‘‘[b]y whatever name the intuitive
faculty is graced, its operations seem intrinsically beyond the pale of
justification. There is no faculty of ethical intuition (or perception or
judgment) whose discursively unjustifiable deliverances carry their
warrant with them... what it does do remains mysterious or, at best,
subjective.’’16 Michael Quante and Andreas Vieth contend that
‘‘unqualified intuitionism’’ does not provide justified moral beliefs.17
INTUITION AND THE JUNCTURES OF JUDGMENT
9
Over the last fifteen years or so, many ethicists have proposed
ways to domesticate intuition, if not by eliminating it from moral
deliberation, at least by minimizing the need for it. The most popular
domestication strategy is to argue that one’s decision procedure can
provide discursive justification rather than relying on intuition. Henry
Richardson was the first,18 arguing that his account of how we
specify norms when they conflict provides discursive justification, for
it does not rely on ‘‘private and nondiscursive perception or intuition
[but on] grounds open to rational public debate and assessment, such
as... arguments resting on... underlying theory.’’19 David DeGrazia
proposed incorporating specification into principlism precisely on the
grounds that doing so provides discursive justification;20 Beauchamp
and Childress followed his advice.21
However, discursive justification need not involve specifying
norms; any way of providing articulable reasons and arguments
about when and how principles or paradigms apply can be said to
provide discursive justification. Carson Strong, for example, contends
that casuistry can provide discursive justification through arguments
about why cases are decided as they are, thus avoiding ‘‘intuitions...
being used excessively.’’22 Gregory Kaebnick says casuists provide it
by insisting on consistency between our case judgments, abstracting
those judgments into principles, seeking coherence among the principles, and interpreting and clarifying the principles with argumentation (intuitions still play a role, but they receive justification in turn
through coherence with moral theory).23
To understand discursive justification, contrast it with the way
intuitions are justified. Intuitions are said to be self-evident; they are
not justified by inference from something else. For example, if you
assert that a principle applies in a given way to a given case, and that
assertion is presented as an intuition, then the intuition is supposed to
be justified by the fact that comprehending the content of the intuition justifies you in believing it. Discursive justification, by contrast,
involves justifying an assertion by inferring it from or supporting it
by something else—typically arguments, reasons, or interpretations.24
The relevant meaning of ‘‘discursive’’ is ‘‘[p]assing from premises to
conclusions; proceeding by reasoning or argument; ratiocinative...
Often opp. to intuitive.’’25 Thus, you discursively justify your assertion that the principle applies in a given way by offering arguments
and reasons for that assertion, rather than treating the assertion as
evident on its face. One of Richardson’s examples of discursive justification involves constructing arguments and developing reasons for
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the prohibition on killing by tracing it back to a more general
principle of respect for self-conscious life:
[A]lthough each of these specifications is controversial, their grounds are not some
kind of private and nondiscursive perception or intuition. Rather, they rest on
grounds open to rational public debate and assessment, such as those arguments
resting on the underlying theory of respect for persons.26
Perhaps in hopes of avoiding the need for self-evident foundational beliefs, discursive justification is often said to be strongly coherentist,27 such that principles are both consistent with each other
and supply argumentative support for each other. Richardson often
speaks of reflective equilibrium, and declares his account to be coherentist.28 Similarly, DeGrazia says a norm specification is discursively justified when it maintains or increases the coherence of our
entire set of norms, not only by avoiding contradictions among them,
but by the fact that the norms and the reasons behind them are
mutually supporting.29
Nor is discursive justification the only domestication strategy.
Beauchamp and Childress incorporate specification and hence discursive justification into principlism, but they also believe that
‘‘proper safeguards can be put in place that will adequately manage
the problems,’’30 such as six limitations on the use of intuition in
resolving conflicts of principles (for example, when we violate one
principle in order to follow another, we must violate it in the least
intrusive way, and we must act impartially and not be influenced by
morally irrelevant information about any party).31
Unfortunately, these domestication strategies are unsatisfactory
for three reasons. First, there is a large difference, somewhat glossed
over in the discussions cited above, between being able to provide
discursive justification and actually providing it. Proponents of
these strategies tend to say that principlism, specification, or casuistry can be supplemented with discursive justification, not that they
always are. However, you are not justified in believing something
simply because it is possible for you to have evidence or a reliablyfunctioning perceptual process—you are justified only if you actually have those things. Moreover, providing discursive justification
is not easy, and may require considerable time and philosophical
sophistication. Decision procedures, however, are designed for
use by nonphilosophers under real world conditions with insufficient time for philosophical labor and moral theory construction.
Thus, in practice moral decision procedures may lack discursive
INTUITION AND THE JUNCTURES OF JUDGMENT
11
justification. If we could be sure that such justification is always
available for any given intuition at the junctures of judgment, then
we would have a metajustification for such intuitions, and would
not require discursive justification. However, discursive justification
is thought to be needed precisely because there may be trouble at
the junctures.
Second, whatever problems arise with intuition persist even when
a decision procedure provides discursive justification. No matter
how carefully we analyze and construct arguments, draw inferences,
or make interpretations, we use intuition to assess whether the
inferences are strong, the arguments cogent, and the interpretations
insightful and correct. Outside of formal logic, these questions are
matters of judgment for which there is no algorithm. For example,
Richardson describes someone deliberating about whether to withhold nutrition and hydration from a severely deformed newborn to
let it die; this deliberator considers the reasons behind the general
prohibition on killing, concludes that it has to do with the value of
persons, and ‘‘decides, on reflection,’’ that the value of persons
stems from the value of self-conscious life or the potential for such
life.32 How can these issues be settled without intuition? If arguments are made, then premises must be established and inferences
defended—again by intuition. It is precisely because we disagree
about such intuitions that arguments often fail to produce agreement. Even if the structure of justification is entirely coherentist,
with no beliefs playing a foundational role, we must still use intuition to assess which coherent set of moral beliefs is superior (for
there is always more than one possible coherent set)—and still use
intuition to assess the strength and cogency of the arguments in the
coherent set.
Third, elaborating a decision procedure with arguments and a
search for coherence may multiply the junctures at which intuition is
needed and potentially decisive. Consider the following (actual)
case. A competent, elderly patient who has never been a Jehovah’s
Witness refuses blood transfusions for his upcoming heart surgery
because a few days ago a Witness relative showed him a TV documentary about the dangers of blood transfusions; his surgeons say
the surgery will be extremely risky without transfusions. Now
suppose we discursively reason as follows: we decide (using intuition) that the point of respecting a patient’s autonomy is to respect
the patient’s efforts to determine his own life. This is partly because
(we intuit that) self-determination has intrinsic moral value, and
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because (we intuit that) people tend to be the best judges of their
own interests. We thus conclude (by intuition) that a life lived in
accord with long-term beliefs and intentions is more self-determined
than a life that departs from such beliefs and intentions. This,
however, seems inconsistent with respecting changes of mind, and
we decide (by intuition) that only a carefully considered and wellinformed change of mind can override a long-term belief or value,
especially when great risks are at stake (which we gauge using
intuition). Finally, we decide (by intuition) that this patient has not
made a sufficiently careful and well-informed change of mind, and
(we intuit that) the risks are too great.
One may object that I have overstated the occasions requiring
intuition here; for example, one can argue for the value of selfdetermination rather than simply intuit it, or make empirical observations that people tend to be happier when their self-determination
is respected.33 (This is consistent with the view of intuition offered
earlier: just because some moral fact can be intuited does not mean
that it can be known only through intuition.) However, if we argue
for this claim, we then further multiply the places at which intuition is
needed, for some of the premises of that argument will have to be
intuited, and we must intuitively apprehend that certain conclusions
follow from those premises, and so on. If, by contrast, we offer
evidence that respecting self-determination tends to promote an
agent’s well-being, then we need to intuit how well-off the agent
is—or she must intuit that for herself and tell us. Even if well-being is
defined as something we can ascertain without intuition, such as
preference satisfaction, the very claim that this is what constitutes
well-being requires intuition to establish, either directly or by argument and further intuitions. In any case, even if some of the matters
intuited above can be ascertained entirely without intuition, not all of
them can.
In our search for discursive justification, we used intuition several
times in this course of reasoning, and even though many of these
issues may seem narrow, at least some of these intuitions are
decisive (had they gone the other way, we might have decided the
case differently). If we used intuition to simply apply the principle
of respect for autonomy without further argument, we could use
intuition just once. Thus, the more discursive justification we build
into a decision procedure, the more often we must exercise intuition
decisively.
INTUITION AND THE JUNCTURES OF JUDGMENT
13
MAKING HARD CASES EASY AS A WAY OF HAVING
JUSTIFIED INTUITIONS
Intuition cannot be domesticated, but fortunately the problem is
overstated. It helps to distinguish between philosophical skepticism
and practical skepticism about intuition. For illustration, consider
philosophical skepticism and practical skepticism about perception.
We have philosophical reasons to wonder whether any of our perceptions are epistemically justified; perhaps we are victims of a
Cartesian evil demon. However, we trust most perceptions in practice; practical skepticism arises only when we have some reason to
distrust a particular perception or class of perceptions. For example,
perhaps eyewitnesses to a shooting are too overwhelmed to have
reliable perceptions of the event, or perhaps most of us lack the
perceptual skill to make fine discriminations about color or taste. No
matter how intractable philosophical skepticism about perception
may be, that kind of skepticism is no reason to distrust all perceptions
in practice.
The worries about intuition mentioned earlier (disagreement, no
scientific model for moral perception, and possible bias) support
philosophical skepticism about intuition; they are reasons to wonder
whether any intuitions are epistemically justified. However, no
philosophical skeptics distrust all intuitions in practice. Bias can be
counteracted, and there is a range of easy cases where we tend to
agree and feel confident of our moral intuition. As for lacking a
scientific model of a faculty of moral intuition akin to our models of
vision or hearing, we also lack such a model for intuition about
arithmetic or simple logic, but no one doubts our intuitions about the
validity of modus ponens, or the truth of ‘‘5 + 7 = 12.’’ When
assessing moral decision procedures, it is no more reasonable to raise
epistemic concerns that apply to all of ethics than it is to raise
skeptical concerns about perception generally when assessing telescopes for accuracy. Just as we must accept many perceptions in
practice, so we must accept many moral intuitions in practice. The
literature on moral decision procedures is distorted by a tendency to
argue as if a procedure had to resolve all our concerns about intuition. A moral decision procedure must pass only a more modest test:
can it yield moral intuitions about act-tokens which are sufficiently
similar to intuitions we regard as sufficiently justified for practical
purposes?
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I will argue that easy cases can be understood in terms of favorable epistemic conditions, and that intuitions formed under ideal
epistemic conditions would all involve easy cases and hence be justified. I will then show how decision procedures can yield justified
moral beliefs under nonideal conditions. Here is the overall
argument:
1. All moral facts are knowable in principle.
2. Our moral intuitions in easy cases are justified.
3. Cases are easy when the epistemic conditions are suitably favorable.
4. Therefore, all hard cases are potentially easy cases. (1, 3)
5. Therefore, it is possible to have justified intuitions in all cases,
including the hard ones. (2, 4)
Premise 1: All moral facts are knowable in principle.
This is not to say that all moral truths are knowable as a
practical matter; some may be impossible to discern under any
realistic conditions. However, in principle—under ideal epistemic
conditions, however distant those are from any actual epistemic
conditions—we could know them. It is hard to imagine how moral
truths could not be knowable in principle (the only possibility I
know of combines two claims: the divine command theory of ethics
is true—God determines what is right and wrong—and we could not
comprehend God’s mind even if we had access to it). I will assume
that most readers find it plausible that moral truth is always
knowable in principle.
Premise 2: Intuitions in easy cases are justified.
Again, the argument for this premise is not that we can overcome
all skeptical doubts about moral intuition; the argument is that we do
not need to.
Premise three: Cases are easy when the epistemic conditions are
suitably favorable.
‘‘Easy case’’ is defined in terms of ease of discerning moral
truth. For example, it is clear and undisputed that we should strive
to save an ailing infant with a prospect of a long and healthy life
where this will not risk harm to anyone else. This is an easy case
not because it is easy to do this, but because it is easy to see that
we should do this. A case becomes easy when the epistemic conditions are favorable enough for us to easily see what should be
done. Those conditions may vary with the moral truth in question,
or with the skill of the moral observer. For example, it is a bit
INTUITION AND THE JUNCTURES OF JUDGMENT
15
harder to see that we should save an ailing infant where doing so
takes scarce medical resources away from another ailing infant
with lesser prospects of a long and healthy life, but it might be
easy to see the truth about that case if we have more time to
deliberate, more information, greater familiarity with relevant
moral background theory, a greater capacity for empathetic
awareness, and so on. The second case becomes easy under the
right epistemic conditions.
Step four, first conclusion: Therefore, all hard cases are potentially
easy cases.
This follows from steps one and three. To put this another way,
there are no cases so hard that the moral truth is unknowable under
all conceivable conditions.
Step five, second conclusion: Therefore, it is possible to have justified intuitions in all cases, including the hard ones.
This follows from steps two and four. Again, having such an
intuition is not a realistic possibility in all cases, but it is possible
under some ideal epistemic conditions (which may never occur).
This argument shows that, so long as we accept intuitions in easy
cases, we should assume that justified intuitions are possible in all
cases. Another way to put this is to say that, for every moral question, there is a corresponding ideal intuition we would reach if the
epistemic conditions were sufficiently favorable to make the case an
easy one. Therefore, when we make judgments about act-tokens, we
want to know that our actual intuitions are reasonably likely to
approximate their corresponding ideal intuitions.
This means that moral intuitions can be justified in two ways.
First, they can be self-evident, as they are in easy cases. This is the
way most philosophers have thought intuitions had to be justified.
However, to say that a proposition is self-evident is to say that it can
be self-justifying, not that it can be justified only by being self-evident.
There is no reason why some self-evident propositions cannot be
justified in more than one way, both by being self-evident and by
being inferred from something else. Second, moral intuitions can be
justified by evidence that they coincide with their corresponding ideal
intuitions. This involves self-evidence only in the derivative sense that
the ideal intuition—which may be only hypothetical—is self-evident.
Rather, it requires arguments and inferences to show that the actual
judgment is likely to approximate its corresponding ideal judgment.
Actual intuitions in easy cases will be justified by self-evidence, but
actual intuitions in hard cases will have to be justified in the second
16
JOHN K. DAVIS
way, which I will call indirect justification. This is where decision
procedures come in.
PRINCIPLES AND PARADIGM CASES AS HEURISTIC
DEVICES
This paper began with a dilemma about the relationship between
principles and cases: if intuitions are justified, then it is not clear why
principles and decision procedures are ever necessary, while if our
intuitions are not justified, then (given that intuitions are decisive) it
is not clear that principles and decision procedures are ever sufficient
for reaching justified moral beliefs about cases. The first step toward
avoiding the dilemma is to show that some intuitions are justified—the ones we have about easy cases. We also saw that similarly
justified intuitions are possible (in principle) in all hard cases. But
how do we turn a hard case into an easy case? To answer this, we
must understand where principles and paradigm cases come from in
the first place.
Suppose we have a clear, confident intuition about some acttoken—an easy case—and we want to summarize that intuition for
future use or communication to others. We can take an intuition in a
single easy case and abstract from that case, deriving a moral principle. We can also take a number of easy cases that exhibit a pattern
and derive a principle from them all. We can also assemble these
principles into a moral theory. It is an old idea: Mill spoke of the
rules of common sense morality as rules of thumb which help us
approximate the moral judgments a perfect utility-calculator would
reach; more recently, Rawls has floated a nonutilitarian version of
this idea.34 Principles, Rawls argues, are devices to help us reach the
intuitions we would reach if we were fully competent moral judges
forming intuitions under the right conditions. We are not always in
that position, but we can abstract principles from our best intuitions,
and use those principles to infer what our best intuitions are likely to
be in relevantly similar situations where our epistemic circumstances
are not favorable enough to enable us to reach such intuitions
directly.
Because principles and paradigm cases are derived from easy
cases, they can serve as heuristic devices to help us reach actual
intuitions about act-tokens which are likely to coincide with or at
least approximate their corresponding ideal intuitions. This is a way
INTUITION AND THE JUNCTURES OF JUDGMENT
17
of providing indirect justification for our intuitions in hard
cases—somewhat like the indirect justification you get when you
know that you see a case the way some better, more discerning moral
judge sees it. For example, if under suitably favorable epistemic
conditions we would decide to go along with a particular patient’s
request even though his request imposed a mild risk upon his family,
then applying the principle of respect for autonomy and the principle
of justice and balancing the two might help us to focus on the relevant features of a case and isolate them from distracting and irrelevant features, so that it is easier to intuit what should be done.
Principles can even arrange the issues so that those with implications
for other issues get judged first (ascertain the patient’s competence
before deciding how to balance respect for his autonomy with concern for his family members).
When we derive a principle, we can do so at various levels of
generality. Think of a spectrum. At the concrete end is a highly detailed and specific statement of our intuition, including both some
normative content about what should or should not be done, and an
act-description with all the features of the token we found morally
relevant (that is, features whose inclusion or exclusion from the acttoken alters our intuition). If we add a maxim to the statement, these
become the paradigm cases the casuists speak of; this is why I often
speak of principles and paradigm cases in the same way from here on.
This also explains why casuistry seems compatible with principlism:
the difference between paradigm cases and principles is one of
degree—they both lie on such spectra.35
At the other end of the spectrum is the most abstract principle one
can derive (something like ‘‘Do the right thing’’). Between these
extremes there are successively more or less abstract descriptions of
the case and its normative content. The more abstract the description,
the more it looks like a principle and not a case description with
normative content. I call this the principle-case spectrum, and will
refer to everything on it as a normative description. There is a spectrum for every case, for in every case it is possible, under ideal conditions, to have a justified intuition and derive a principle from it. It
seems likely that these spectra tend to converge at the more abstract
end (something like a teepee with branching poles), eventuating in a
small set of principles (or, in a monistic system, just one). In any
event, a principle applies to a case to the extent it matches the
principle we would derive from that case under ideal conditions (even
if the principles themselves are different).36
18
JOHN K. DAVIS
If all goes well, when we apply an applicable principle, we get a
judgment about the case that matches the judgment we would reach
if we used intuition alone under ideal conditions—the principle
guides our intuition. The problem that vexes proponents of decision
procedures is that principles do not always provide as much
guidance as we would like in hard cases, leaving it unclear what
judgment to reach. Principles drawn from the more abstract end of
a given principle-case spectrum work well when we need only a little
heuristic guidance in order to reach something approximating an
ideal judgment, and sometimes the right judgment is so obvious that
we do not need heuristics at all. However, in harder cases we must
use intuition when it is not immediately clear where and how a
general, abstract principle applies. At the point where guidance
gives out, we must rely on unguided intuition. More abstract
principles put us at that point sooner. Thus, we may want to trace
our way back to the more concrete, specific end of the spectra in
order to find a more detailed principle or paradigm case that gives
our intuition more guidance.
This accounts for the tendency of some ethicists to elaborate
decision procedures in various ways: by adding subprinciples, or by
splicing principlism and casuistry and wide reflective equilibrium and
specificationism together—or seeking discursive justification through
further moral theorizing, elaborating and arguing for principles and
their relationships to each other and to cases. These addenda give our
intuitions more guidance in hard cases. In other words, if your
principle is too abstract for the case, then instead of using intuition to
fill the gap, as it were, engage in moral theory construction by
developing a more articulate principle that provides more detailed
guidance.
However, where moral decision procedures are concerned, this is
the wrong way to deal with hard cases, for it can actually decrease our
moral knowledge overall. Unlike moral theories, moral decision
procedures are meant for nonphilosophers deciding act-tokens under
real-time conditions. Such decision procedures must increase our
knowledge in two ways that often conflict: they must provide
guidance (e.g., must maximize our odds of reaching an intuition
about an act-token that reasonably approximates our ideal intuition
about that token), and they must be user-friendly (e.g., they must be
sufficiently easy to use that nonspecialists will put them to work in
real life).
INTUITION AND THE JUNCTURES OF JUDGMENT
19
There are different ways to strike a balance between guidance and
user-friendliness. To take a simple example, we might have either a
smaller set of more abstract principles, or a larger set of more detailed
principles. A larger set of more detailed principles provides more
guidance, for each principle provides a more detailed act-description
to tell us what it applies to, but a larger set of more detailed principles
is also less user-friendly than a smaller set, for there is more
information to remember and apply. A smaller set of more abstract
and general principles will be easier to use and remember, and hence
more user-friendly, but because each principle is less specific, and
there are fewer of them, the odds that any one of them will clearly
resemble the instant case are less, and hence they provide less guidance. Thus, a larger set of more specific principles provides greater
guidance at the expense of user-friendliness, while a smaller set of
more abstract principles is more user-friendly, but at the cost of
providing less guidance.
To see why seeking guidance alone is mistaken for decision
procedures, let us distinguish decision procedures from moral theories. By ‘‘moral theory’’ I mean a representation or model of our
moral beliefs as a set of principles, usually by abstracting the
principles from patterns in our best moral intuitions.37 (Some authors impose much stricter requirements on what counts as a moral
theory; stricter definitions do not conflict with my argument.)
Moral theories and decision procedures are similar in that most of
them use principles of some kind, and this similarity can be misleading. A moral theory is not necessarily a decision procedure,
though many moral theories can be used as one, and a decision
procedure need not use a moral theory (or part of one), though it
might. They are distinguished primarily by their purposes. Decision
procedures can be used on act-types, but typically they are used on
act-tokens that must be decided by nonphilosophers working under
severe real-time constraints. Moral theories, by contrast, are meant
to accurately and completely model our best moral judgments, and
are not meant to be used to decide act-tokens under practical realtime constraints.38 We should understand a moral theory as a
representation of our moral beliefs which maximizes guidance
without regard to loss of user-friendliness. This fits our general
notion of theories as representations or models of reality, where
accuracy and detail are prime virtues. However, maximizing guidance without regard to user-friendliness is a bad strategy for
developing an effective decision procedure.
20
JOHN K. DAVIS
Thus, the strategy of elaborating our decision procedures to
provide more guidance is epistemically costly, for if a decision
procedure is too cumbersome, it simply will not be used at all, or at
least the elaborated parts of it will not be used. Often we are better
advised to use a simple decision procedure (the four principles, for
example, without any elaborations or attempts at specification or
achieving reflective equilibrium, or any mention of sub-principles
and background theories behind the principles), and rely on our
unaided intuition even if we are not entirely confident of it. Moral
decisions must be made in real-time by people not specialized in
moral theory, and a decision procedure must be fairly simple, or it
will not be used at all. Moreover, even if it is used, the time and
effort involved in using it may make it difficult to address all ethics
cases in detail; it could turn out to be the ethics equivalent of a
gilded coach wheeled out on ceremonial occasions but useless for
the daily commute.
To illustrate, suppose you can either have a very well justified
moral intuition about 10 cases over the next year, or less well-justified
intuitions about 100 cases over that year. Which outcome leaves you
better informed? Under the latter scenario, each decision in the 100
cases will be less well justified, but under the former, 90 of that 100
will be even less justified still. If we could simply take on a smaller
workload (like an appellate court restricting the number of appeals
we can hear), that might not matter so much, but in fact each of those
100 cases will be decided in any event, for doing nothing is tantamount to a decision too. If we want to maximize our moral knowledge in a morally responsible way, we should not seek the most
justified intuitions we can have (accepting that this means having
fewer justified beliefs), but should instead strive to achieve the highest
level of justification we can for our intuitions in all the cases we
decide.
Why is this not noted more often? I suspect two reasons. First, it
is easy to overlook the distinction between philosophical skepticism
and practical skepticism. We make the worries about hard cases
seem more intractable than they really are when we write as though
resolving them requires resolving philosophical skepticism about
intuition. Second, it is easy to think that how knowledgeable we are
about moral matters turns directly on how justified our moral
intuitions are. However, being knowledgeable about moral matters
is more complicated than that, for maximizing justification may
leave us with a few exquisitely justified moral beliefs amid large
INTUITION AND THE JUNCTURES OF JUDGMENT
21
areas of ignorance in which we must nonetheless act—in other
words, maximizing our justification may leave us knowing less, not
more.
TRUTH CONDITIONS FOR INTUITIONS ABOUT WHERE
AND HOW PRINCIPLES APPLY AND CASES ARE
RELEVANTLY SIMILAR
To sum things up, moral decision procedures use principles and
paradigm cases to guide our intuition toward the judgments we
would reach under epistemically more favorable conditions, where a
hard case becomes easy. They do this not by minimizing or avoiding
intuition, but by helping us replicate the justified intuition we would
have if the case were easy. To strike the proper balance between
guidance and user-friendliness, we must accept the fact that our
decision procedures will often provide less guidance for our intuitions
than we would like, for decision procedures maximize knowledge not
by maximizing justification for each judgment, but by maximizing
overall justification for all the moral decisions we must make, and
that may require a smaller set of more schematic principles. Proposals
that we minimize intuition by replacing it with discursive justification
are mistaken to the extent that decision procedures are meant for
clinical conditions. (Of course there is nothing wrong with further
theory-construction—whether by seeking discursive justification or in
other ways—when writing for an academic audience, or setting policy
for classes of cases, or dealing with unusually important cases, or
other situations where real-time constraints are less an issue.)
But how does intuition work when we apply principles to cases? A
principle applies to an act-token to the extent that principle corresponds to a normative description somewhere on the principle-case
spectrum which an ideal judge would derive from that act-token under
ideal conditions. In other words, if an ideal judge had judged the
token directly and worked from there, he or she would have ended up
with that principle. Thus, if a given principle-case spectrum is reasonably close to the instant case and we apply a principle from that
spectrum to the case deductively, we increase the odds that we will
arrive at something reasonably close to our ideal judgment for that
token.
However, it is not the instant case itself that is indeterminate, or
involved in some conflict of moral intuitions, or not clearly relevant
22
JOHN K. DAVIS
or irrelevant to some other case—those things are true of principles
and paradigm cases (and the principle-case spectra they fall onto),
but not true of any particular case. The junctures of judgment arise
simply because we have not previously had confident, unaided intuitions about act-tokens closely similar to the one before us. If we had
had such an intuition about another case closely similar to the instant
case, we would also have a principle-case spectrum that clearly lands
on the instant case, and little need for intuition in applying it, for the
principle would provide a good deal of guidance.39
However, principles are abstracted from confident intuitions
about act-tokens, and we do not have confident intuitions about all
act-tokens. A given act-token might be unlike anything we have seen
before, or familiar enough but not easy. To use the teepee metaphor
again, if the poles are principle-case spectra, and the act-tokens about
which we have confident unaided intuitions—the easy cases—are the
places where the poles are grounded, then hard cases fall between the
poles, not clearly close to any of them. With this in mind, let us see
how to use our discussion of intuition and principles to more accurately and completely characterize what is going on in the four
junctures of judgment. We are after an account of the truth-conditions for statements that a given principle applies determinately to a
given case in such-and-such a way, or that this principle outweighs
that one, or that a given paradigm case is relevantly similar to the
instant case.
First, when a principle is indeterminate, the principle is sufficiently
abstract that it is not clear whether and how the principle applies to
the instant case. We are far enough up one of the spectra that it is
hard to see whether the teepee pole (so to speak) hits the ground right
where the instant case lies. If the principle is derived from (the pole is
grounded in) an ideal judgment about a case just like the instant case,
or largely the same, then the principle applies in some determinate
way, but from a certain height of abstraction this is hard to see. If the
principle is not derived from a case largely the same as the instant
case, then it is not so much indeterminate as inapplicable. Some
philosophers distinguish between epistemic indeterminacy, where a
principle applies in some determinate way but we cannot tell precisely
where and how, and metaphysical indeterminacy, where there is no
fact of the matter concerning where and how it applies. On my
account of indeterminacy, moral principles can be epistemically
indeterminate but not metaphysically indeterminate; the closest thing
to metaphysical indeterminacy consists in situations where the
INTUITION AND THE JUNCTURES OF JUDGMENT
23
principle is derived from a case relevantly different from but nonetheless sufficiently similar to the instant case to provide partial
guidance. The truth-conditions for claims about how an indeterminate principle applies are a function of which case it derives from, and
the relation between that case and the instant case.
Second, when principles seem to conflict, we are further up the
poles, and unable to see which one lands closest to the act-token in
question (from a certain height or level of abstraction, they both
seem to). In many decision procedures we resolve conflicts between
principles by weighing them. This is often said to be mysterious and
to lack justification—exhibit A in the indictment against decision
procedures said to rely excessively on intuition. However, this is
neither mysterious nor worrisome. In a conflict of principles, there
are two (or more) principle-case spectra that seem close enough to
the instant case to be applicable, but they mandate different actions.
Just as we use a principle to prompt a more confident intuition
when a case is too hard for intuition alone, when principles conflict
we do this with both of them; to use intuition to resolve that
conflict is simply to ask which principle prompts the more confident
intuition. I leave it open whether there are cases where we would be
torn in an ideal judging situation, and thus face a genuine dilemma;
if so, intuitions cannot ‘resolve’ these—but then neither can
balancing or ranking the principles in advance. There are three
kinds of conflicts of principles. If the dilemma is genuine, then
1) both principles derive from the instant case. If the dilemma is not
genuine, then either 2) one of the principles derives from the instant
case and the other does not, or 3) neither principle derives from the
instant case, and we must ask which of the cases the two principles
derive from is more relevantly similar to the instant case. Thus, the
truth-conditions for asserting that a given principle has more weight
come to this: either that principle is the one that derives from the
instant case under ideal conditions, or it derives from a case that is
more relevantly similar to the instant case.
Third, when it is not clear how to properly describe the act-token
so as to include all and only the morally relevant features, that means
we are not sure which features would make a difference to our
intuitions in an ideal judging situation, and thus are not sure how to
describe the case so that we can see which pole it is closest to. The
truth-conditions for claims about which features are relevant are a
function of our reactions to the entire case (including all irrelevant
features) under ideal judging conditions.
24
JOHN K. DAVIS
Fourth, when it is not clear whether the instant case is more relevantly similar to this paradigm case or that one, we are facing the
same situation as when we consider indeterminate principles or
apparent conflicts of principles where none of the principles derive
from the instant case. However, we are now at a lower level of
abstraction, for paradigm cases lie on the principle-case spectrum
too, but at the end where the case is described with only its relevant
features and some normative judgment about it. If the paradigm case
is described at a certain level of abstraction, or if we have not identified which features of the instant case are relevant, then it may be
that both cases, properly described, are effectively the same case (only
the irrelevant features differ). If, however, both cases properly
described do not share all and only the same relevant features, then
we must analyze relevant similarity in another way. This will affect
our analysis of the truth conditions for claims about indeterminate
principles that do not derive from the instant case, or conflicts where
neither principle derives from the instant case.
At this point my discussion becomes programmatic; this problem
needs more work. Tentatively, I would like to suggest that the truthconditions for claims about which case is most relevantly similar to
the instant case may be a function of whether the same action is right
(or wrong) in both cases (e.g., withholding information from the
patient was proper in both cases). However, if the action that is right
in the instant case is not right in any of the other cases with which we
compare the instant case, then perhaps we have not found a relevantly similar case. As an alternative, when none of the cases being
used for comparison mandates the same action as the instant case,
then perhaps there is a fact of the matter about which of them
mandates an action that, under ideal conditions, would prompt the
least degree of moral disapproval. To investigate this further, we need
to think about what makes two actions the same, and about whether
the degree of moral approval or disapproval tracks what we have in
mind when we think about degrees of relevant similarity.
CONCLUSION
Intuition is not a corruption to be minimized; it is justified under
the right conditions, and the possibility of having justified intuitions
is the precondition for the leading apparent alternative to them:
discursive justification. Moral decision procedures work not by
INTUITION AND THE JUNCTURES OF JUDGMENT
25
minimizing or eliminating the need for intuition; they work heuristically by helping to get us closer to the conditions where our moral
intuitions are clear enough to inspire confidence. Once we see moral
decision procedures, principles, and paradigm cases as heuristic
devices, we can also see that excessive concern for justification may
actually leave us less well-informed overall. We can also make sense
of the truth-conditions for intuitions about where and how principles
apply, or paradigm cases are relevant.
ACKNOWLEDGMENTS
I wish to thank Peter Murphy for helpful conversations on several
issues raised in this paper.
NOTES
1
2
3
4
5
6
7
8
I have borrowed this use of the act-type/act-token distinction from Gerald
Dworkin, ‘‘Theory, Practice, and Moral Reasoning,’’ in The Oxford Handbook of
Ethical Theory, ed. David Copp (Oxford: Oxford University Press, 2006),
pp. 625–626.
A possible act is a possible act-token insofar as it is contemplated in an actual
particular setting.
Act-types and act-tokens differ in several ways: ontologically (types are universals,
while tokens are particulars), how they are described (act-types tend to be stated
somewhat schematically, with one or a few crucial properties highlighted, while
act-tokens are typically described in far more detail), and with regard to moral
dilemmas (act-tokens are usually drawn from real life and often present real or
apparent conflicts of principles, while act-types are usually abstracted with a
particular issue and principle in mind, and do not usually present other principles).
A moral decision procedure need not describe how we actually make moral
decisions about act-tokens; we often do it badly.
This is not to say that a decision procedure cannot be used to make decisions
about act-types, but we usually construct moral theory when deciding act-types.
Albert R. Jonsen, Mark Siegler, and William J. Winslade, Clinical Ethics: A
Practical Approach to Ethical Decisions in Clinical Medicine, 5th ed. (New York:
McGraw Hill Companies, Inc., 2002).
This decision procedure is also a moral theory. Bernard Gert, Charles M. Culver,
and K. Danner Clouser, Bioethics: A Systematic Approach, 2d. ed. (Oxford:
Oxford University Press, 2006).
Not all versions of these approaches are decision procedures alone, but I am
interested only in the parts of them that are.
26
9
10
11
12
13
14
15
16
17
18
19
20
21
JOHN K. DAVIS
I distinguish between principlism as a decision procedure and the body of moral
theory that backs up the principles, as presented in Tom L. Beauchamp and James
F. Childress, Principles of Biomedical Ethics, 5th ed. (Oxford: Oxford University
Press, 2001).
Robert Audi, The Good in the Right (Princeton: Princeton University Press, 2004),
pp. 32–78. For a similar view of nonmoral intuitions, see Laurence BonJour, In
Defense of Pure Reason (Cambridge: Cambridge University Press, 1998).
Similarly, we tend to speak of judgment when we have a subjective sense that
some moral belief is true but cannot explain why (though I sometimes use the
term to refer to verdicts about cases). The same is true of the other terms.
Phronesis (practical wisdom) is the virtue of deliberating well, and Aristotle tells
us that deliberation continues until we can perceive what to do without further
deliberation. NE 1113a1-4. Aristotle, Nicomachean Ethics, trans. Terence Irwin,
2d ed. (Indianapolis: Hackett Publishing Company, 1999). Perception, in turn, is
noninferential (it is not inferred from anything else), and it is foundational; it
stops a regress of reasons. NE 1142a27–31, 1143a37–1143b1–4. In these respects,
AristotleÕs concept of moral perception can be understood as a kind of intuition,
and phronesis as the virtue involved in intuiting successfully.
Strictly speaking, Ross, the best-known exponent of this approach, reserves
‘‘intuition’’ for our apprehension of prima facie duties, contending that resolving
moral dilemmas involves ‘‘more or less probable opinions.’’ W.D. Ross, The Right
and the Good (Oxford: Oxford University Press, 1930; reprint, Indianapolis:
Hackett Publishing Company, 1988), p. 31 (page citations are to the reprint
edition).
Given that intuition is defined as including self-evidence, if these objections are
sound then there are no moral intuitions, but I will follow common usage in
speaking of ‘‘intuitions’’ rather than ‘‘purported intuitions’’ or something similar,
and thus speak of intuitions as being justified or not–though strictly speaking, if
something is an intuition, it is justified.
Beauchamp and Childress, cited in n. 9, above, p. 19.
Beauchamp and Childress, cited in n. 9, above, p. 406.
Henry S. Richardson, ‘‘Specifying Norms as a Way to Resolve Concrete Ethical
Problems,’’ Philosophy and Public Affairs, 19 (Fall, 1990): 279–310, 287–288.
Michael Quante and Andreas Vieth, ‘‘Defending Principlism Well Understood,’’
The Journal of Medicine and Philosophy 27 (2002): 621–649, 625. See also Gregory
Kaebnick, ‘‘On the Intersection of Casuistry and Particularism,’’ Kennedy Institute of Ethics Journal 10, no. 4 (2000): 307–322, 312; Abraham Rudnick, ‘‘A
Meta-Ethical Critique of Care Ethics,’’ Theoretical Medicine and Bioethics 22
(2001): 505–517, 509.
Richardson told me in correspondence that he did not originate the concept of
discursive justification; he credits Habermas, among others.
Richardson 1990, cited in n. 16, above, 305.
David DeGrazia, ‘‘Moving Forward in Bioethical Theory: Theories, Cases,
and Specified Principlism,’’ The Journal of Medicine and Philosophy 17 (1992):
511–539.
Beauchamp and Childress, cited in n. 9, above, pp. 18–19. See also Quante and
Vieth, cited in n. 16, above.
INTUITION AND THE JUNCTURES OF JUDGMENT
22
23
24
25
26
27
28
29
30
31
32
33
34
35
27
Carson Strong, ‘‘Specified Principlism: What is it, and Does it Really Resolve
Cases Better than Casuistry?’’, The Journal of Medicine and Philosophy 25 (2000):
323–341, 336; see also Carson Strong, ‘‘Critiques of Casuistry and Why They are
Mistaken,’’ Theoretical Medicine and Bioethics 20 (1999): 395–411, 405–408.
Kaebnick, cited at n. 16, above, 313–316.
In addition, Richardson also says discursive justification requires providing reasons which are fully expressible in words, and that deliberation is not rational
unless it ‘‘can be assessed and explained, justified and criticized – publicly.’’
Intuition is ‘‘not subject to this sort of public check.’’ Henry S. Richardson,
Practical Reasoning About Final Ends (Cambridge: Cambridge University Press,
1997), p. 31; see also Richardson, ‘‘Specifying, Balancing, and Interpreting Bioethical Principles,’’ The Journal of Medicine and Philosophy 25, no. 3 (2000): 285–
307, 286. However, it is not clear what it means to express our moral beliefs in
terms entirely free of intuition. It is one thing to eliminate intuition altogether
from our moral deliberation, and another to eliminate it from our linguistic
expression that deliberation.
The Oxford English Dictionary, The Compact Edition, s.v. ‘‘discursive.’’
Richardson 1990, cited in n. 15, above, 305. Note that Richardson identifies
‘‘perception’’ as a synonym for intuition, and says that, once a specification is
‘‘sufficiently specific, there is no need for further deliberation, and it is ÔperceptionÕ
that must supply the ÔpremiseÕ that a currently possible action satisfies the norm.’’
Ibid., 286, 289, 294 n.33. Thus it is not clear that his account completely eliminates intuition.
Richardson 1990, cited in n. 15, above, 300. Richardson is not a pure coherentist.
Richardson 1997, cited in n. 23, above, pp. 175–176.
Richardson 2000, cited in n. 23, above, 302; Richardson 1990, cited in n. 15,
above, 300.
DeGrazia, cited at n. 19, above.
Beauchamp and Childress, cited at n. 9, above, p. 406.
Beauchamp and Childress, cited at n. 9, above, pp. 19–20.
Richardson 1990, cited in n. 16, above, 304.
I owe this objection to one of the reviewers.
John Stuart Mill, Utilitarianism, in Ethics: History, Theory, and Practice, ed.
Steven M. Cahn and Peter Markie (Oxford: Oxford University Press, 2006),
pp. 329–330; John Rawls, ‘‘Outline of a Decision Procedure for Ethics,’’ in Collected Papers, ed. Samuel Freeman (Cambridge: Harvard University Press, 1999).
My overall picture of theory-construction and the nature of principles, including
the principle-case spectrum, has much in common with the account of these
matters in Gert, Culver, and Clouser, cited at n. 7, above, pp. 3–49. For a similar
view, see the discussion of the origination of moral principles in Chapter 6 of
Glenn C. Graber and David C. Thomasma, Theory and Practice in Medical Ethics
(New York: The Continuum Publishing Company, 1989), and for an account of
the classical use of rhetoric in moral reasoning that resembles RawlsÕs account in
some ways, see Alex John London, ‘‘The Independence of Practical Ethics,’’
Theoretical Medicine and Bioethics 22 (2001): 87–105, 101.
Albert R. Jonsen, ‘‘Casuistry: An Alternative or Complement to Principles?’’,
Kennedy Institute of Ethics Journal 5, no. 3 (1995): 237–251; Alex John London,
‘‘EditorÕs Introduction: Theory and Engagement in Bioethics,’’ Theoretical
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37
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JOHN K. DAVIS
Medicine and Bioethics 22 (2001): 65–68. A paradigm case is a highly detailed
normative description, one that approaches the act-token end of the principle-case
spectrum. Because it is so detailed, it will look more like a case description than a
principle, but it bears a relationship to a principle further along the spectrum, the
kind of principle Jonsen calls a ‘‘maxim.’’ The maxim the paradigm case exemplifies is simply a more abstract version of the same normative act description as
the paradigm case itself; that is why the paradigm case exemplifies that maxim. As
Tom L. Beauchamp puts it, paradigm cases are ‘‘so bonded to general principles
that the principles are essential to the case itself.’’ Tom L. Beauchamp, ‘‘Reply to
Strong on Principlism and Casuistry,’’ The Journal of Medicine and Philosophy 25
(2000): 342–347, 346.
It is often suggested that we use reflective equilibrium to help us see whether and how
a principle applies to a case. However, this confuses the distinction between principle
derivation and principle application. Reflective equilibrium involves adjusting the
principle when we have a very firm judgment about the case and the principle
conflicts with that judgment, and when we adjust the principle, we often find ourselves doing so in such a way that it is clear whether and how the principle applies to
the case, precisely because we are now deriving our principles and not merely
applying them. However, this does not help with a hard case, where we lack a clear
intuition about the case from which to modify or derive a norm and achieve equilibrium between that norm and our intuition about the case.
Even those philosophers, like Ross or Rawls, who sometimes seem to suggest that
we can intuit principles directly, insist that principles must be consistent with our
judgments about particular cases, and are learned through making many such
judgments. John Rawls, A Theory of Justice (Cambridge: Harvard University
Press, 1971), pp. 46–53; Ross, cited in n. 11, above, pp. 32–33.
The proponents of the ‘‘common morality’’ approach offer a theory that is also
meant to serve as a practical decision procedure. Gert, Culver, and Clouser,
cited in n. 7, above. However, they agree that the full resources of moral theory
are not always needed. Beauchamp and Childress also offer a combination
moral theory and decision procedure, though the decision procedure elements of
their work are easily distinguished from the moral theory behind it. Cited at
n. 9, above, pp. 337–338.
I am not assuming (or denying, for that matter), that there is a clear, obvious fact
of the matter, apparent under ideal epistemic conditions, about how to resolve an
apparently indeterminate principle, or a conflict between two principles. It may
well be that even under ideal conditions, the principles can still be indeterminate, or
in conflict. However, that does not matter under ideal conditions, for under such
conditions we a) do not need heuristics, and b) can clearly see what we should do in
the instant case—the case is clear, even if the application of the principles is not.
The principles we try to apply may simply not fall cleanly onto the right spectrum.
REFERENCES
Aristotle. Nicomachean Ethics. Translated by Terence Irwin. 2d ed. Indianapolis:
Hackett Publishing Company, 1999.
Audi, R. The Good in the Right. Princeton: Princeton University Press, 2004.
INTUITION AND THE JUNCTURES OF JUDGMENT
29
Beauchamp, T. L. ‘‘Reply to Strong on Principlism and Casuistry.’’ The Journal of
Medicine and Philosophy 25 (2000): 342–347.
Beauchamp, T. L. and J. F. Childres. Principles of Biomedical Ethics (5th ed.).
Oxford: Oxford University Press, 2001.
BonJour, L. In Defense of Pure Reason. Cambridge: Cambridge University Press,
1998.
DeGrazia, D. ‘‘Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism.’’ The Journal of Medicine and Philosophy 17 (1992): 511–539.
Dworkin, G. ‘‘Theory, Practice, and Moral Reasoning.’’ In The Oxford Handbook of
Ethical Theory. Edited by C. David. 624–644. Oxford: Oxford University Press,
2006.
Gert, B., C. M. Culver and K. D. Clouser. Bioethics: A Systematic Approach (2nd
ed.). Oxford: Oxford University Press, 2006.
Graber, G. C. and D.C. Thomasma. Theory and Practice in Medical Ethics. New
York: The Continuum Publishing Company, 1989.
Jonsen, A. R. ‘‘Casuistry: An Alternative or Complement to Principles?’’ Kennedy
Institute of Ethics Journal 5, no. 3 (1995): 237–251.
Jonsen, A. R., M. Siegler, and W. J. Winslade. Clinical Ethics: A Practical Approach
to Ethical Decisions in Clinical Medicine (5th ed.). New York: McGraw Hill
Companies, Inc, 2002.
Kaebnick, G. ‘‘On the Intersection of Casuistry and Particularism.’’ Kennedy
Institute of Ethics Journal 10, no. 4 (2000): 307–322.
London, A. J. ‘‘EditorÕs Introduction: Theory and Engagement in Bioethics.’’
Theoretical Medicine and Bioethics 22 (2001): 65–68.
London, A. J. ‘‘The Independence of Practical Ethics.’’ Theoretical Medicine and
Bioethics 22 (2001): 87–105.
Mill J. S. ‘‘Utilitarianism’’ In Ethics: History, Theory, and Contemporary Issues.
Edited by S. M. Cahn and P. Markie. 317–351. Oxford: Oxford University Press,
2006.
Quante, M. and A. Vieth ‘‘Defending Principlism Well Understood.’’ The Journal of
Medicine and Philosophy 27 (2002): 621–649.
Rawls, J. Outline of a Decision Procedure for Ethics. In Collected Papers. Edited by
F. Samuel. 1–19. Cambridge: Harvard University Press, 1999.
Rawls, J. A Theory of Justice. Cambridge: Harvard University Press, 1971.
Richardson, H. S. ‘‘Specifying, Balancing, and Interpreting Bioethical Principles.’’
The Journal of Medicine and Philosophy 25, no. 3 (2000): 285–307.
Richardson, H. S. Specifying Norms as a Way to Resolve Concrete Ethical Problems.
Philosophy and Public Affairs, 19 (Fall, 1990): 279–310.
Ross, W. D. (1988) The Right and the Good. Oxford: Oxford University Press, 1930.
Reprint, Indianapolis: Hackett Publishing Company.
Rudnick, A. ‘‘A Meta-Ethical Critique of Care Ethics.’’ Theoretical Medicine and
Bioethics 22 (2001): 505–517.
Strong, C. ‘‘Critiques of Casuistry and Why They are Mistaken.’’ Theoretical
Medicine and Bioethics 20 (1999): 395–411.
Strong, C. ‘‘Specified Principlism: What is it, and Does it Really Resolve Cases Better
than Casuistry?’’ The Journal of Medicine and Philosophy 25 (2000): 323–341.
30
JOHN K. DAVIS
Department of Philosophy
University of Tennessee, 801 McClung Tower
Knoxville, TN 37996-0480
USA
E-mail: [email protected]