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Articles on Law, Science, and Engineering

Part VIII: The Pitfalls of Utilitarianism

Having been on medical, engineering, and law school faculties, I am sometimes asked to compare these professions. When asked why physicians, engineers, and lawyers have such different points of view, I respond that physicians fix people, engineers fix things, and lawyers fix problems. Most everyone likes people and things, but no one likes problems. The tension between technological development and the law arises because technologists are constantly creating problems that lawyers are called upon, but are quite unprepared to fix.

Unlike the role of physicians and engineers, the role of lawyers differs from country to country, depending on the philosophical principles upon which the country's legal system is based. In the United States the role of the law, and consequently of lawyers, is to safeguard individual freedoms and societal rights. Technology provides objects, law maintains an environment, each for human well-being. Clashes between jurists and technologists often arise, not because law and technology are at odds, but because technological development is for the masses whereas the law must also deal with members of society as individuals. Centralizing technologies of large scale may be useful to the engineer, but the enormous administrative bureaucracies they spawn inevitably pose serious problems for the individual freedoms the U.S. legal system espouses.

When asked about lessons from Bhopal, I respond, "Be responsible." Practitioners in all the professions, including physicians, engineers, and lawyers, had better learn the lesson well: in a democratic society such as ours, commercial survival depends on social responsibility. The alternative is not just more litigation and cancelled insurance policies: The real alternative is more control by government and fewer and fewer freedoms and societal rights.

An example of the importance of social responsibility in biomedical engineering occurred recently during the Subcommittee on Oversight and Investigations Hearings about anesthesia machine failures. During the period the Medical Device Reporting Regulation was pending at FDA, several companies claimed that they were voluntarily abiding by the spirit of the then-pending regulation, including the requirement that manufacturers report device-related deaths, serious injuries, and complaints to FDA. The Hearings were held to investigate unreported incidents involving patients who died while using Puritan-Bennett's Foregger anesthesIa machines. According to testimony by a FDA official, at one point during an FDA Good Manufacturing Practices inspection of Puritan-Bennett's corporate headquarters, the Company claimed that 28 lawsuits filed against it were not complaints, and therefore needn't be reported to FDA: when FDA requested access to these suits, the Company refused. Only after FDA issued a Notice of Adverse Findings citing the firm for inadequate handling of complaint files under the requirements of Good Manufacturing Practices regulations, did the firm provide FDA with access to the 28 lawsuits. According to testimony during the Hearing, in at least one instance, a defective part from an anesthesia machine implicated in a death was "field destroyed" by the engineer sent by the manufacturer to repair the machine. Other testimony indicated to Representative Albert Gore, Jr. that Puritan-Bennett may have tried to get possession of a machine that had been implicated in another death. While questioning Puritan-Bennett President, Burton A. Dole, Jr., Representative Gore said,

"There seems to be a pattern, to me, that when you go to investigate something, one of your principal objectives seems to be to leave no record of what you have done. In this case you destroyed the defective value. In the other case, you sought to get possession of the machine that had been implicated in the death. And in none of the cases do you notify the FDA of the fact that your machine has been implicated in a death. That just doesn't seem to me a very responsible way to act." (Emphasis added)

How would you view someone who tried to hide information that might cast him in a bad light, who destroyed something that might implicate him in an unlawful act, and who tried to get possession of something else that, in the hands of others, might be used to implicate him in another unlawful act? If it looks like the persons's hand was in a cookie jar, it doesn't matter much if he didn't know cookies were kept there.

Consider the acts referred to by Representative Gore in the context of how engineers think. Engineers may destroy a defective part to ensure that it never finds its way back into use. The motive might be pure, but if the effect is self-serving, it is better to take another course: Save the defective part in a locked vault somewhere where it can be examined by others, when questions arise. Similarly, engineers may want to take a dangerous product back to the factory so that it can't do more damage. Again, the motive might be pure, but a self-serving result will be interpreted just that way. Finally, engineers sometimes mistakenly see the law as a set of formal rules and technicalities that can be used to conceal questionable behavior. Since this is an attempt to use the law to defeat what it requires (relevant facts) to achieve its main goal (justice), it is a very dangerous use indeed and quite apt to backfire. Using technicalities like "a lawsuit is not a complaint" is likely not only to fail, but to also lead to trouble.

As described above, new technologies inevitably spawn a controlling administrative agency. The examples are numerous: The FCC, FAA, NRC, EPA and FDA owe their existences and continued growth to technological developments in communications, aviation, nuclear power, chemicals, and medicine. Perhaps the most important new role of law in modern society is to control organization itself, conforming it to human ends. In the age of administration, Theodore Lowi put it as follows:

"The modern method of social control involves the application of rationality to all social relations ... Rationality applied to social control is administration. Administration may indeed be the sine qua non of modernity."

The patriotic cry, "Give me liberty or give me death!" is no longer said to challenge a tyrannical king. However, it may still be a timely call challenging the rise of bureaucracy. Continuation of the American experiment with individual freedoms expressed in the Bill of Rights and the 14th Amendment may depend upon denying organization today's main diet of bureaucratic growth -- centralizing technologies and the massive governmental agencies necessary to control them. The bottom line for the engineer is to adopt disciplined social responsibility and recognize situations where complexities muddle what on the surface appear to be straightforward cost-benefit calculations. Since society dictates a mission for its legal system that extends far beyond what Albert Gore, Jr. calls "the black hole of cost-benefit analysis," nonlinearities in the cost-benefit formula together with imprecision in estimates of potential harm and benefit offer challenges the modern engineer must face upfront or pay for later.

Until relatively recently the only callings of sufficient dedication to public service to be termed "professions" were law, medicine, and theology (most jurisdictions omit what some claim is the oldest). Engineering has existed as a profession for less than two hundred years. It is this concept of professional responsibility in engineering that requires that engineers practice their art not only with a high degree of skill, but also with a high degree of moral responsibility. For example, Canon 11 of the Canon of Ethics for Engineers requires that engineers "guard against conditions that are dangerous to life, limb or property." According to Rule 24 of the Rules of Professional Conduct, if an engineer's employer insists on using a design that is not "safe" to the public health and welfare, the engineer is obligated to call attention to the matter and withdraw from the project.

This concept of engineering professionalism is codified in each state. For example, the Texas Engineering Practice Act explicitly recognizes the impact engineering is having on the lives, property, economic condition, and security of members of society, and therefore holds engineers accountable "by high professional standards in keeping with the ethics and practices of the other learned professions." The Act broadly defines the "practice of engineering" as "any service or creative work ... which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical or engineering sciences to such services or creative work." Under the Texas Act, only licensed engineers can "practice engineering" or even use the word "engineer" to identify themselves.

Engineers are trained to create useful objects that are usually designed to benefit society as a whole rather than individual members of society. This utilitarian orientation influences the ethical system upon which engineers interpret their professional responsibilities. As described above, these professional responsibilities of engineers are ultimately defined by law. Since the ethical system of the law is based on a complex mixture of egalitarian-libertarian-utilitarian principles, engineers sometimes behave in a manner that seems professionally responsible to them, but fails society's legal test of professional responsibility. Canon 11 and Rule 24 exist in the engineer's mind together with the knowledge that all technological development necessarily poses some conditions that are "dangerous to life, limb or property," and that no new design is completely safe "to the public health and welfare." Faced with these realizations about the nature of technological development, and catalyzed by his/her mission to provide objects for human well-being, it is almost inevitable that engineers will fail to comprehend the important of subtler requirements of the law. Thus, many engineers may view plants designed to produce pesticides as a benefit to society, provided fewer people starve as a result of the agricultural use of the pesticides (the "benefit") than die as a result of its production and use (the "cost"), without inquiring adequately about the validity of their model or the accuracy of their information. In fact, whether the result actually maximizes society's benefits cannot be proved, but engineers believe that their approach is a rational way to achieve the desired result. Thus, utilitarianism suggests to engineers that they can answer ethical questions by a quasi-technical equation, that is, by balancing alternatives and selecting the one that is "optimal."

The trouble with the utilitarian approach is that it ignores the factor that makes the ethical question necessary in the first place, namely, our ignorance. Man has developed ethical rules not because he knows, but because he does not know the consequences of a particular act. It is one thing to propose a theory for the construction of a machine from known elements, and quite another to pre-suppose a knowledge of the effects of individual actions when, in fact, the whole existence of the set of rules of conduct to be explained was itself due to the lack of such knowledge. Indeed, if men knew everything, there would be no need for rules governing ethical conduct.

A comparison of utilitarianism with other moral theories widely adopted by society into the law will illustrate how conflicts arise between law and engineering, and that these conflicts can be beneficial to society.

The egalitarian ethical system stresses the concept of justice for individual members of society. Rather than seeking the "greater good" for the masses, the egalitarian view is that the well-being of society is measured by the well-being of the worst-off person in that society. An example of an egalitarian approach in the U.S. Constitution is in the due process afforded those accused of criminal conduct and facing incarceration.

Another ethical system that stresses the concept of justice is libertarianism. However, unlike egalitarianism, libertarianism borrows the idea of a total society viewpoint from utilitarianism. Rather than seeking to promote the worst-off member of society, libertarianism seeks to minimize harm to all individuals in a society. There are many examples of the libertarian approach in the American legal system, including aspects of contract and tort law. The real implication of libertarianism is that the winners in society must compensate the losers in order that no one is worse off.

As described above, jurisprudential theory is based on a pragmatic blending of egalitarian, libertarian, and utilitarian ethics. The law stands guard over individual human rights. Engineers who enjoy individual freedoms may cherish them as citizens, but nevertheless fail to include their costs in the professional analysis of an engineering product or service. Individual liberties are expensive. The idea that civil liberties are okay in certain situations when the societal "costs" seem reasonable, but can be discarded when those costs are too high suffers from the same fallacy that plagues all utilitarian thought: Some form of tyranny is required to "measure" the costs, and the scale used for that measurement is necessarily idiosyncratic of the tyrant. Whether the tyrant is King George or "a majority," it is not part of our republican form of government in the U.S. While democratic principles permit a majority to select lawmakers, the law requires that individuals be treated fairly by society.

The tension within the law itself among egalitarianism, libertarianism, and utilitarianism requires that each point of view be expressed. Engineers enrich the way the law works by advocating the utilitarian position. However, the goal of the law is the avoidance of disputes, or, failing that, the resolution of disputes in a manner acceptable to society. Engineers should understand the utility of diversity in the complex process for reaching this goal. A better understanding between lawyers and engineers should enable each profession to help society and its individual members achieve a batter life.


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